Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- GAreth McCarthy

Neutral Citation: [2010] IECCA 89


Court of Criminal Appeal Record Number: 263PX/09

Date of Delivery: 10/12/2010

Court: Court of Criminal Appeal

Macken, J. [No. CCA 263PX/09]
Budd, J.
O’Keeffe, J.

Judgment of the Court delivered on the 12th day of October, 2010 by Macken, J.

This is an application made on behalf of the Director of Public Prosecutions, pursuant to the provisions of the Criminal Procedure Act, 1967 (“the Act of 1967”), as amended by s.9 of the Criminal Justice Act, 1999 (“the Act of 1999”). It is made against the decision of the Circuit Court judge sitting at a Dublin Circuit Criminal Court on the 12th October, 2009, who ruled that, in light of certain errors in the search warrant used in the course of the crime investigation, the details of which will be dealt with later in this judgment, the charges laid against the respondent would have to be dismissed.

Background
The respondent, as accused, was charged with certain offences under the provisions of the Misuse of Drugs Acts, 1977/1984 (“the Acts of 1977/1984”). In particular, that at specified premises in Old Bawn, Tallaght, County Dublin, he was alleged to have in his possession prohibited drugs, namely, cocaine and diamorphine (heroin), in respect of which there were four counts, as follows:

1. Unlawful possession of cocaine.

2. Unlawful possession of diamorphine.

3. Possession of diamorphine for the purposes of sale or supply.

4. Possession of diamorphine having a market value at the time amounting to €13,000, or more, for the purposes of sale or supply.

The respondent was returned for trial, in the usual way, to the Dublin Circuit Criminal Court, and on his behalf an application was made pursuant to the provisions of s.4E of the Act of 1967, as amended by s.9 of the Act of 1999, seeking the dismissal of the charges laid against him on the Bill of Indictment. That section provides, in its amended form, as follows:

4E.— (1) At any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused.
(2) Notice of an application under subsection (1) shall be given to the prosecutor not less than 14 days before the date on which the application is due to be heard.

(3) The trial court may, in the interests of justice, determine that less than 14 days notice of an application under subsection (1) may be given to the prosecutor.

(4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.

(5) (a) Oral evidence may be given on an application under subsection (1) only if it appears to the trial court that such evidence is required in the interests of justice.


(b) In paragraph (a) ‘oral evidence’

includes—

(i) any evidence given through a live television link pursuant to Part III of the Criminal Evidence Act, 1992, or section 39 of the Criminal Justice Act, 1999, or

(ii) a videorecording of any evidence given through a live television link pursuant to that Part or section in proceedings under section 4F.

(6) Where the trial court is satisfied that it is in the interests of justice that any document required under this Part to be served on the accused or his solicitor be served at the hearing of an application under this section—

(a) the prosecutor shall serve the document on the accused or his solicitor, if any, at the hearing, and

(b) the court may, if it considers it appropriate to do so, adjourn the hearing for that purpose.


(7) Where a charge is dismissed by the trial court under subsection (4), the prosecutor may, within 21 days after the dismissal date, appeal against the dismissal to the Court of Criminal Appeal.

(8) On an appeal under subsection (7), the Court of Criminal Appeal may—


(a) affirm the decision of the trial court, or

(b) quash the decision of the trial court, in which case the trial of the accused may proceed as if the charge had never been dismissed.

A. In January, 2008 Garda O’Connell of the local garda station obtained from a Peace Commissioner for the appropriate area a search warrant pursuant to s.26 of the Acts of 1977/1984, permitting the gardai to search specified premises at Old Bawn, Tallaght in County Dublin. It appears clear that Garda O’Connell informed the Peace Commissioner that he had received confidential information from a source, claimed to be reliable, or who had previously been reliable, that cocaine was being sold from the premises in question and that he, the garda, had carried out enquiries and effected surveillance on the address in question.

B. It appears from the Book of Evidence that the Peace Commissioner considered that he was satisfied from the information furnished by Garda O’Connell and from the garda’s answers to questions which he, the Peace Commissioner, had put to him, that there were reasonable grounds for believing that cocaine was to be found at the address in question and he therefore issued a search warrant, signed by him, on the 19th January, 2008.

C. Garda O’Connell having secured the search warrant, attended at the premises in question in the evening of the 19th January, 2008, and the Book of Evidence records that he stated as follows:


“I knocked on the door and it was answered by a female. I identified myself as a member of An Garda Siochana to the female and explained I was in possession of a search warrant issued pursuant to s.26 of the Misuse of Drugs Act, 1977/1984, and that I intended to search the premises. I then explained in ordinary English, and the female indicated she understood. A search of the house commenced …”.

D. As a consequence of that search, both cocaine and diamorphine (heroin), which are the subject of the charges in question, were found in the bedroom of the respondent, together with other drug paraphernalia. The respondent was arrested at the premises and taken to Tallaght Garda Station and interviewed. He claimed to have received the drugs in question shortly before the gardai arrived, but said he did not know that heroin was involved. The respondent indicated, during the interview, he was to deliver the package to another person, so as to wipe out a drug debt, and claimed to be in fear for his safety if he did not comply with this person’s orders, the person being unidentified.

Pursuant to the application made on behalf of the respondent under s.4E of the Act of 1967, as amended by the Act of 1999, in the Circuit Court, Mr. Sean Gillane, S.C., contended that the search warrant was invalid and did not authorise the search of the premises in which the respondent and the drugs were found on the date in question. It was argued that the fruits of such a search, which were the drugs, including diamorphine and cocaine found on the premises, were not admissible in evidence as a result of the alleged invalidity of the search warrant. The basis for this allegation is twofold:

(1) Although the search warrant was not issued by the District Court, but rather by a Peace Commissioner, it was nevertheless entitled and bore the heading “An Chuirt Duiche” and “The District Court”, as if it had been issued from the District Court.

(2) Although both parties were in agreement that the warrant was, in fact, signed by the Peace Commissioner in his own name, and there is no doubt but that he is a Peace Commissioner, nevertheless, the warrant bore the following notation under his signature: “JUDGE OF THE DISTRICT COURT ASSIGNED TO THE SAID DISTRICT”.

On the other hand, Patrick McGrath, counsel on behalf of the applicant, as prosecutor, argued that it was clear on the face of the document that the search warrant was signed by a Peace Commissioner, and the respondent, as accused, had accepted that it was signed by a Peace Commissioner. Further, the substance of the warrant was not being challenged in any way by the respondent, as accused. In the case of the warrant in suit, the person signing the warrant, namely, the Peace Commissioner, had full jurisdiction to sign and issue the warrant. All the statutory pre-conditions for the issue of the warrant had been complied with, and in the present case, he contended that unequivocally and. on its face the statutory authority for the search in question was disclosed. According to his argument, the case law did not support a claim that every infirmity in a warrant invalidates it. On the contrary, the case law makes it clear that only those defects that go to the heart of the jurisdiction to grant the warrant have the effect of invalidating it. In the present case there is simply a technical error on the form, there was no intention to mislead, and no evidence that any person was, in fact, misled.

Mr. Gillane, in reply, did not demur from some of the arguments made on behalf of the Director of Public Prosecutions, but contended that the requirement for the warrant to “show unequivocally on its face authority for the search in question” was not fulfilled in the present case. The warrant purported that the authority was that of a judge of the District Court, which was simply incorrect and misleading as to the status of the signatory. Both parties cited extensive case law.

The learned Circuit Court judge, having considered the submissions by counsel for each party, and, in particular, having considered the case law on the matter, found that the error in the document, arising from the fact that the Peace Commissioner signed the search warrant, which indicated incorrectly on its face that this was done in the capacity of a judge of the District Court, was nevertheless an error on the face of the document which was a fundamental error, not capable of being corrected on viva voce evidence. The warrant did not show jurisdiction or authority, because the person signing the document is either a judge of the District Court, or he is not, and this incorrect assertion, that he was a judge, could not be corrected at that stage. The warrant, the trial judge found, was incorrectly signed by somebody who misleadingly described himself as a judge. According to the transcript, the trial judge having had careful regard to the various judgments furnished to the court, and having considered the observations of Prof. Dermot Walsh in his book on “Criminal Procedure”, held that this error on the face of the search warrant was fundamental and not capable of being corrected. In consequence, the learned Circuit Court judge found that the warrant had no validity in law, and dismissed the charges under s.4E of the Act of 1999.

From that ruling the applicant has appealed on the following grounds:

(a) The learned trial judge erred in law in dismissing the charges against the respondent, pursuant to the provisions of s.4E of the Criminal Procedure Act, 1967, as inserted by the Criminal Justice Act, 1999;

(b) The learned trial judge erred in law in ruling that the search warrant was invalid;

(c) The learned trial judge erred in principle in holding that, entry having been gained into the premises on foot of the warrant, evidence of the finding of controlled drugs in the premises was not admissible in evidence at the trial of the proceedings;

(d) The learned trial judge erred in law in concluding, where it was undisputed that the Peace Commissioner had signed the said search warrant and had affixed his signature “Michael Duff, PC”, that the failure on the part of the said Peace Commissioner to delete that part of the search warrant which described the signatory as “JUDGE OF THE DISTRICT COURT ASSIGNED TO THE SAID DISTRICT” rendered the search warrant invalid;

(e) The learned trial judge erred in law in failing, when considering the signature on the warrant, to take into account evidence which on the application then before the court, under the Act of 1967 and as set out in the Book of Evidence, was uncontested, including the statement of Garda John O’Connell that he applied to the Peace Commissioner for the warrant, the information on oath sworn by the garda and signed by the Peace Commissioner, who described himself on the information as “a Peace Commissioner for the County of Dublin, etc.”; the evidence of the garda that the Peace Commissioner had issued the search warrant to him on foot of that information; the evidence of the Peace Commissioner that he had issued the search warrant, which evidence was exhibited in the Book of Evidence; and the accepted fact that the search warrant was signed by the Peace Commissioner but was erroneous in its form, in that it referred to him as a Judge of the District Court Assigned to the Said District.

The nub of the problem appears to have arisen because the Peace Commissioner was presented with pro forma or pre-typed documents applicable for an application to a District judge, but inapplicable to the jurisdiction and status as a Peace Commissioner, a matter which is puzzling, to say the least. The Court considers that it must be possible, with little or no effort, to present to a Peace Commissioner, when it is clear that the garda authorities are going to apply to a Peace Commissioner, as opposed to a District judge, a document in the same pro forma pre-printed version appropriately adapted to suit the status and jurisdiction of a Peace Commissioner. If such simple steps had been taken, this appeal, and equally the application originally brought before the Circuit Court judge, would have been wholly unnecessary.

There are several cases relevant to the issue and they are of some assistance, together with academic writings, in resolving the legal issues which were before the learned Circuit Court judge. Among the authorities are the following: Simple Imports v. Revenue Commissioners [2000] 2 I.R. 243, The People (DPP) v. Edgeworth [2001] 2 IR 131, The DPP v. Dunne [1994] 2 I.R. 537 and The People (DPP) v. Veronica Balfe [1998] 4 I.R. 50. The last of these cases concerned an error in the warrant, in that it did not correctly transpose the description of the goods for which the search warrant was sought under the provisions of The Larceny Act, 1916. This Court, in Balfe, having considered other authorities, concluded that this defect, although serious, was a patent defect rather than an inherent or fundamental effect, and therefore the goods in question could properly be admitted in evidence by the trial judge. While the facts were quite different, in the course of the judgment, delivered by Murphy, J., this Court stated as follows:

“Where a judge of the District Court acting within his jurisdiction agrees to issue a search warrant, a mistake, however gross, in the recording of his order will not necessarily render the warrant invalid for all purposes though it might justify persons to whom it was addressed, or intended to be addressed, declining to cooperate with it. Where, however, the search warrant is made without authority, then it has no value in law, however innocent the mistake when granting the same or however apparently plausible the document issued.” (emphasis added)

“I am satisfied that the submissions on behalf of the respondents that, in a case where the warrant itself states that it is being issued by the District Judge on a basis which is not justified by the statute creating the power, the invalidity of the warrant can be cured by evidence that there was in fact before the District Judge evidence which enabled him to issue the warrant within the terms of the statute is not well founded. The proposition seems to me contrary to principle and unsupported by authority. Given the necessarily draconian nature of the powers conferred by the statute a warrant cannot be relied upon as valid which carries on its face a statement that it has been issued on a basis which is not authorised by the statute. It follows that the warrants were invalid and must be quashed”. (emphasis added)

In the case of DPP v. Dunne, supra., the High Court (Carney, J.) dealt with a case also falling within the ambit of validity of warrants, but that case, in reality, is dependent on its particular and peculiar facts, and the Court does not consider it to be of any additional assistance.

The final case, which both parties accept is also particularly relevant to the issues arising on the appeal, is The People (DPP) v. Edgeworth, supra. That case too involved a search warrant issued by a Peace Commissioner, and also under the Misuse of Drugs Acts, 1977/1984. It too was a document which, as here, issued under the title “An Chuirt Duiche” and “The District Court” and, as in the present case, it was signed by a Peace Commissioner. However, in that case the words “JUDGE OF THE DISTRICT COURT ASSIGNED TO THE SAID DISTRICT” had been clearly deleted by being crossed out, and the words “Peace Commissioner” in full were written in capital letters below the signature.

In the Edgeworth case, when considering the challenge to the warrant, the Supreme Court unanimously stated that the pre-conditions required for the issuing of a warrant under the Acts in question existed. The first finding of the Supreme Court is in the following terms:

“1. That it was inappropriate for a warrant issued by a Peace Commissioner to bear the words “The District Court” but that the appearance of such words did not breach any statutory requirement as to the form of the warrant and did not mislead, where the status of the person issuing the warrant appeared clearly on its face, and did not, therefore, affect the validity of the warrant”. (emphasis added)

“There is no doubt that the warrant is headed “The District Court”, and with the other words set out earlier in this judgment. Equally clearly, the document is signed by a person describing herself as a Peace Commissioner and not as a Judge of the District Court. The heading of the warrant undoubtedly relates to the fact that a judge of the District Court is entitled to issue such warrants and no doubt frequently does. No special form seems to have been provided by the authorities for use when the application for a warrant is made to a Peace Commissioner and not to a Judge of the District Court. This is a regrettable omission but in my opinion is not such as invalidates a warrant in the form of the present one.

The present warrant features an inappropriate statement on the face of the document whose affect is to associate the document with the District Court whereas in fact it was issued without any application to a judicial personage at all. It is not however a statement calculated to mislead and there was no evidence before the learned trial judge that any person was in fact misled. The status of the person actually issuing the warrant appears clearly on its face.`” (emphasis added)

“In the first of them, Simple Imports the warrant itself provided positive evidence that the condition precedent had not been met. In the present case the position is quite different: all the statutory criteria can be seen, at least on a prima facie basis, to have been met. The misdescription, and that is the most it can be called, involved in the use of the heading “The District Court” is not a breach of any condition or criterion imposed by the legislature and is simply an error. In my view there is no basis in law for the proposition that this error invalidates a document which accords with all specified requirements of the law.” (emphasis added)

Counsel for the applicant contends that since the substance of the warrant is accepted by both parties as complying with the legislative framework, and having regard to the fact that the signatory appends the initials “PC” after his name - thereby, according to the applicant, making it clear that he was a Peace Commissioner and, more importantly, that he was not a District judge - on the case law, the inclusion of the legend is merely an error in form, which was not intended to mislead, and did not, in fact, mislead, and does not go to the substance of the warrant, or to its validity. Mr. McGrath, on behalf of the applicant, argues that he clearly comes within the ambit of the case law, whose extracts are set out above. Counsel for the applicant also relies on certain comments by Professor Walsh in his book on “Criminal Procedure”, which points out that, as has been said in the case of DPP v. Edgeworth, supra., not every error on the face of the warrant will render it void, but rather only those defects that go to the heart of jurisdiction to grant the warrant will have this effect.

Mr. Gillane, on behalf of the respondent, also relies on the case of DPP v. Edgeworth, supra., but also invokes the judgment of the learned Circuit Court judge in this case. He argues that the learned Circuit Court judge was correct when he made the following finding in dismissing the charges:

“Here I am faced with the situation that whilst it’s accepted by both parties that the person signing is a Peace Commissioner, he purports to sign a search warrant indicating that he is a judge of the District Court. He’s clearly not that. It would seem to me that this error on the face of the document is a fundamental error and taking the dicta in Simple Imports, it is not capable of being corrected by viva voce evidence. It simply does not show jurisdiction or authority. The man signing is either a judge of the District Court or he is not, and that can’t be corrected at this juncture, at this remove, it would seem. That therefore would suggest to me that the warrant in this instance has no valid authority. It is incorrectly signed by someone who incorrectly describes himself. For those reasons therefore having had careful regard to the various judgments that have been furnished to the court and the observations of Mr. Walsh in his text book, it would seem that this error is, on the face of the document, fundamental and cannot be corrected”.

“Search warrants, such as those issued in the present case, entitle police and other officers to enter the dwelling house or other property of a citizen, carry out searches and (in the present case) remove material which they find on the premises and, in the course of so doing, use such force as is necessary to gain admission and carry out the search and seizure authorised by the warrant. These are powers which the police and other authorities must enjoy in defined circumstances for the protection of society, but since they authorise the forcible invasion of a person’s property, the courts must always be concerned to ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met … Under the Constitution, this principle is expressly recognised, in Article 40.5, in the case of the dwelling house of every citizen”. (emphasis added)

(a) Documents, such as search warrants, must be carefully prepared having regard to the fact that they entitle gardai or other authorised officers to enter the property of a citizen, and in the course of so doing, to use such force as may be necessary, both to gain admission and to carry out the search and seizure authorised by the warrant.

(b) This cautionary approach is particularly enjoined when the search warrant is in respect of the dwelling house of a citizen, in light of the recognition granted to such property under the Constitution;

(c) Although search warrants should be prepared carefully, not every error in such a warrant will, by virtue of the same, lead automatically to the invalidation of a warrant;

(d) In particular where the substance of the warrant, as opposed to its form, is not open to objection, the invalidation of the warrant will not necessarily ensue.

(e) The nature of the error, or omission, must be scrutinised by the courts to see whether it is of a fundamental nature, including an error going to jurisdiction. Several factors may be taken into account, including whether the error is a mere mis-description, whether it is likely to mislead, whether it undermines the apparent jurisdiction to issue it, according to the warrant on its face, and such matters, before the courts will find, in an appropriate case, that it should be considered invalid.

(f) It is not possible in relation to non-substantive errors, that is to say, errors which do not affect the substance of the legislative requirements found in the body of the warrant itself, to say that they will never lead to the invalidation of a search warrant, due to the wide variety and nature of errors which may occur.

In addition, it is clear from the authorities, that the warrant is addressed not only to the garda to whom it has issued, but also to the person, or persons, thought to be residing, or who may be residing or present, in the premises in question, in this case a dwelling house where the respondent did, in fact, reside. Such a person is entitled to know and readily read or understand the authority upon which the warrant is issued. In the present case the warrant purported to issue from the District Court under the signature of a person who purported to be a judge of the District Court assigned to the relevant district, even if it is accepted no one was, in fact, mislead.

Equally, it is clear that in the case of The People (DPP) v. Edgeworth, supra., of considerable importance to the Supreme Court in ruling that the mis-description involved only the use of the heading “The District Court”, was the fact that the status of the person actually issuing the warrant was, as stated by Hardiman, J. in his judgment, “clear on its face”. This was because in that case the Peace Commissioner had deleted any suggestion that the status of the signatory was that of a judge of the District Court assigned to the district, and, in addition, the Peace Commissioner had made clear the precise nature of his status, and therefore the nature of his jurisdiction to issue the warrant, by signing it as a “Peace Commissioner”.

While it is said by counsel on behalf of the applicant in the present case, that the signature in the warrant included the letters “PC” after the signature, as a matter of fact it is unclear, even on viewing the warrant, that the letters in question are actually separate from the signature: nor do the letters lend themselves to being clearly identified as “PC”. In any event, even if they did lend themselves to being “PC” it cannot be concluded that a person viewing a warrant entitled, or headed, “The District Court” and seeing an illegible signature over the legend “JUDGE OF THE DISTRICT COURT ASSIGNED TO THE SAID DISTRICT” would, or could reasonably be expected to conclude, on the basis of seeing “PC” after such a signature, that the authority issuing the warrant is, in fact, a Peace Commissioner, or is anyone other than “A Judge of the District Court” of the appropriate district.

In the case of The People (DPP) v. Edgeworth, Hardiman, J., drew attention to the fact that “No special form seems to have been provided by the authorities for use when the application for a warrant is made to a Peace Commissioner and not to a Judge of the District Court. This is a regrettable omission but in my opinion is not such as invalidates a warrant in the form of the present one.” That comment was made in 2001, at least eight years before the judgment by the learned Circuit Court judge in the present proceedings, and seven years before the date of presentation of the search warrant to the Peace Commissioner on the 19th January, 2008. This is an entirely regrettable situation, which could have been easily avoided and could have been readily cured if the comment of the Supreme Court had been noted and acted upon by the provision of a suitable form for use by a Peace Commissioner. In Edgeworth, it is noteworthy that the finding that a warrant “in the form of the present one”, – which included the deletion of “Judge of the District Court, etc.” and the clear description “Peace Commissioner”, was not such a misleading error as to invalidate the search warrant. This constituted a careful comment, pointing out that the mistake in leaving in the title “District Court” was simply an error and not a breach of any condition or criterion imposed by statute. The status of the Peace Commissioner was clear on the face of the warrant and did not affect his jurisdiction or its validity. Accordingly such error as there was, did not invalidate a search warrant which was in accord with all specified requirements of the law.

On the law, this Court is satisfied that the learned Circuit Court judge was correct when he found that the error on the face of the search warrant document is a “fundamental error”, and it is so because, in contrast with the position in The People (DPP) v. Edgeworth, supra., the status of the party issuing the warrant, and therefore the jurisdiction to issue it, is claimed to be a judge of the District Court, and therefore discloses no proper jurisdiction in law, and is wholly misleading, particularly, when combined with the inclusion of the erroneous title “An Chuirt Duiche” and “The District Court” in the title of the search warrant.

In the foregoing circumstances, the dismissal of the application by the learned Circuit Court judge was correct in law, the application made pursuant to s.9 of the Criminal Justice Act, 1999 is refused, and the Order of the Circuit Court is affirmed