Irish Court of Criminal Appeal

Judgment Title: DPP -v- Ian Horgan

Neutral Citation: [2009] IECCA 85


Court of Criminal Appeal Record Number: 235/07

Date of Delivery: 27 July 2009

Court: Court of Criminal Appeal

COURT OF CRIMINAL APPEAL

RECORD NO. 235/2007


Finnegan J.
Gilligan J.
Dunne J.



BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

and


IAN HORGAN


APPLICANT

Judgment of the Court delivered on the 27th day of July 2009 by Finnegan J.



The applicant was charged with two counts as follows:-

Count 1

Robbery contrary to section 14 of the Criminal Justice (Theft and Fraud

Offences) Act 2001.

Count 2

Unlawfully taking possession of a mechanically propelled vehicle contrary to section 112 of the Road Traffic Act 1961 (as amended by section 65 of the Road Traffic Act 1968 and as amended by section 23 of the Road Traffic Act 2002).

Following a trial lasting five days he was convicted on both counts and sentenced to a term of eight years imprisonment on count 1 and three years imprisonment on count 2, the terms to run concurrently but consecutively to a sentence then being served.

Grounds of Application
Three grounds were pursued at the hearing before this court. These are as follows:-

(a) The learned trial judge erred in law in refusing the applicant’s application to exclude from evidence any DNA evidence based upon a sample taken from the applicant in the year 2000.

(b) The learned trial judge erred in law in admitting into evidence the evidence of Dr. Maureen Smith with regard to DNA analysis carried out by her, and

(c) The learned trial judge erred in law in admitting into evidence, evidence which was procured as a result of a search of the applicant’s dwelling on foot of a purported search warrant, which said warrant was obtained and/or executed in breach of the law and was unlawful and in breach of the applicant’s constitutional rights.

Grounds (a) and (b) may be conveniently dealt with together.

The DNA Evidence
On the 7th September 2005 DNA samples were taken from the applicant in connection with the offences the subject of this appeal and which offences were committed on the 6th September 2005. The samples were taken in accordance with the provisions of the Criminal Justice (Forensic Evidence) Act 1990. Proceedings were not instituted within the period of six months of the date of the offences and no application was made for an extension of time for the retention of the samples. Accordingly the samples should have been destroyed but were not.

On the 3rd November 2000 when the applicant was sixteen years old DNA samples were taken from him in connection with separate offences in respect of which he was subsequently charged and convicted. This sample was relied upon by the respondent.

At the hearing the applicant sought to have the evidence of Dr. Smith in relation to the sample taken in 2000 excluded.

Counsel for the applicant relied upon The State (O’Callaghan) v Ó hUadhaigh [1977] 1 I.R. 42. In that case the Director of Public Prosecutions entered a nolle prosequi in circumstances where the prosecutor was before the court on ten counts and following argument the learned trial judge indicated that in his view the trial could proceed on one count only. The intention of The Director of Public Prosecutions was to bring new charges and thereby circumvent the difficulties in relation to the nine charges in respect of which the learned trial judge had expressed a view. In the Supreme Court it was held that this was in breach of basic fairness and that upon the facts of that particular case it was not open to the prosecution to do so. However the particular facts to which Finlay P. had regard appear from the following passages at page 53 of the report:-

“By the 21st July 1976 the prosecutor had been remanded in custody on these charges for a period of something over six months and had been through the entire procedure of a preliminary examination in accordance with the Criminal Procedure Act 1967; he had been subjected to an order returning him for trial, he had been subjected to a number of adjournments in the Circuit Court, and then his trial had been transferred to the Central Criminal Court – all at the instance of the Director of Public Prosecutions. By the time the prosecutor’s trial was due to commence in the Central Criminal Court, and solely by reason of the procedures which had been adopted by and on behalf of the Director, a situation had arisen in which the learned trial judge took the view that the prosecutor could only be tried on one count in a single indictment. I am not concerned with the correctness, or otherwise of that view.

If the contention of the respondent is correct the prosecutor, having undergone that form of trial (and remand awaiting trial) and having succeeded in confining the issues to be tried, would be deprived of all that advantage by the simple operation of a statutory power on the part of the Director of Public Prosecutions. In this way the prosecutor would have the entire of his remand awaiting trial set at nought and he would have to start afresh to face a criminal prosecution in which the prosecution, by adopting different procedures, could avoid the consequences of the learned trial judge’s view of the law. No such right exists in the accused: if the trial judge makes decisions adverse to the interest of the accused, the latter cannot obtain relief from them otherwise than by appeal from the Central Criminal Court or by appeal or review in the case of an inferior court.”

The circumstances in that case are clearly very different from those which exist in the present case. While the original intention was to rely on the DNA samples taken in 2007 the Director of Public Prosecutions recognised the problem which affected the same and determined on notice to the applicant to rely on the 2000 samples. There was no attempt to circumvent a decision of the court of trial these steps having been taken in advance of the trial. The court is satisfied that there is here no breach of basic fairness.

Before this court on behalf of the applicant it was also submitted that there was no evidence before the learned trial judge to enable him to be satisfied that the sample taken from the applicant in 2000 was lawfully taken in accordance with the requirements of the Criminal Justice (Forensic Evidence) Act 1990 and accordingly that the same should have been excluded from evidence. This was not raised at the trial. Indeed in the course of ruling on a voir dire the learned trail judge said:-

“In this case there is no doubt that the original sample – well, I am told and there is no dispute about it – that the original sample was lawfully taken, the 2000 sample was lawfully taken.”

Further prior to the evidence of Dr. Smith in relation to DNA being led counsel for the Director of Public Prosecutions informed the learned trial judge that it was not proposed to refer to the fact that the sample was taken in November 2000. Counsel for the applicant informed the learned trial judge that if there was any reference to the sample having been taken in 2000 he would be applying to discharge the jury. Finally the learned trial judge was informed that this approach was being adopted by agreement and that by agreement the evidence of Dr. Smith could be led on the basis that it was non-contentious.

In these circumstances the argument having not been raised at the hearing this court will not entertain the same.

The Search Warrant
The Criminal Justice (Theft and Fraud Offences) Act 2001 provides for the issue of search warrants in section 48. The following provisions of section 48 are relevant:-
“(3) A warrant under this section shall be expressed and shall operate to authorise a named member of the Garda Siochana, alone or accompanied by such other persons as may be necessary –
(a) to enter, within seven days from the date of issuing of the warrant (if necessary by the use of reasonable force), the place named in the warrant,
(b) to search it and any persons found there,
(c) to examine, seize and retain anything found there, or in the possession of a person present there at the time of the search, which the member reasonably believes to be evidence of or relating to the commission of an offence to which the section applies, and
(d) to take any other steps which may appear to the member to be necessary for preserving any such thing and preventing interference with it.”
An appropriate form was not introduced into the District Court Rules until 2008 with the District Court (Search Warrants) Rules 2008 S.I. No. 322 of 2008. In this case a form of warrant designed to comply with the requirements of section 48 was completed and signed by the District Judge. The court is satisfied that properly completed a warrant in that form complies with the requirements of section 48. However in the present case difficulties arise in relation to the completion of the form as follows:-
1. Section 48(3) provides that the warrant shall operate to authorise a named member of the Garda Siochana to carry out the search. The form contains a paragraph as follows:-
“I hereby grant pursuant to section 48 of the said Act this warrant authorising a member of An Garda Siochana, alone or accompanied by such other persons as (s)he considers necessary to enter within seven days from the date hereof (if necessary by the use of reasonable force) the above mentioned place.”
Space accordingly is left for the insertion into the warrant of the name of the member of the Garda Siochana authorised. In the present case no name was inserted.


2. At the foot thereof the warrant it is addressed to the Superintendent of An Garda Siochana at Macroom.


3. The form discloses that the warrant was applied for by Detective Garda Thomas O’Sullivan.
The evidence given in relation to the warrant was as follows. Detective Garda O’Sullivan gave evidence of applying for the warrant and of the same being issued. He gave the warrant to Superintendent Duggan. Superintendent Duggan endorsed the warrant to Sergeant McKenna. Sergeant McKenna gave evidence that on the 7th September 2005 in reliance on the search warrant he attended at the applicant’s home and conducted a search. The warrant had been endorsed to him by Superintendent Duggan. He was accompanied by members of An Garda Siochana but not by Detective Garda O’Sullivan. He removed certain items from the premises which are relevant to the DNA evidence which was given later at the hearing.

The court is satisfied that the search was not carried out in accordance with section 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001. That section clearly requires the warrant to name a member of the Garda Siochana who alone or accompanied may carry out the search. Due to an error no person was named in the warrant. Detective Sergeant O’Sullivan is identified in the warrant as the person applying for the same and it may be that the warrant could be construed as authorising him as the named person to carry out the search. The warrant is addressed to the Superintendent at Macroom and again it may be that the warrant could be construed as authorising the Superintendent as the named person to carry out the search. Neither of these persons were present at the search. There is therefore a clear non-compliance with the requirements of section 48.

Section 48 does not provide for the endorsement of a warrant to enable the search to be carried out other than by the person and in the manner prescribed by section 48. The purported assignment of the warrant by Superintendent Duggan to Sergeant McKenna is of no effect.

The court is satisfied that the requirements of the section are mandatory and clear and they have not been complied with. The members of An Garda Siochana who executed the search warrant were not authorised to do so. The manner in which the warrant was executed being outside the express terms of the statute pursuant to which it was issued renders inadmissible in evidence the fruits of the search.

Conclusion
The search having been conducted otherwise than in accordance with law the fruits of that search are inadmissible in evidence. There is, however, abundant evidence upon which a jury properly directed could find the applicant guilty of the offences with which he was charged. In these circumstances the court will grant the applicant leave to appeal and treat the application for leave to appeal as the hearing of the appeal. It will set aside the applicant’s conviction on both counts and direct a re-trial.