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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Director of Public Prosecutions -v- Idah [2014] IECCA 3 (23 January 2014)
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Cite as: [2014] IECCA 3
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Judgment Title: Director of Public Prosecutions -v- Idah Neutral Citation: [2014] IECCA 3 Court of Criminal Appeal Record Number: 164/12 Date of Delivery: 23/01/2014 Court: Court of Criminal Appeal Composition of Court: MacMenamin J., Herbert J., de Valera J. Judgment by: MacMenamin J. Status of Judgment: Approved
Outcome: Quash conviction and direct re-trial | ||||||||||||
COURT OF CRIMINAL APPEAL CCA No. 164/2012 MacMenamin J.Herbert J. de Valera J.
SUNNY IDAH APPLICANT/APPELLANT AND
RESPONDENT 1. On the 3rd April, 2012, the appellant was convicted by a jury after a 16 day trial of two counts on an indictment, to wit, soliciting another to commit the offence of unlawful importation of a controlled drug, and soliciting another to commit the offence of the unlawful importation of a controlled drug having a value in excess of €13,000. He was sentenced to 12 years imprisonment (the final year suspended) in respect of the first count; and 15 years imprisonment (the final two years suspended), in respect of the second count on the 18th May, 2012. 2. The prosecution case was that the appellant solicited two undercover Gardaí (UC1 and UC2) to import controlled drugs into the State by seeking to induce both Gardaí to fly to Brazil for the purpose of ingesting pellets to a total weight of 1 kilogram of cocaine each, so as to transport the drugs back into this State undetected. The evidence was the solicitation occurred between the 14th and 19th September, 2010, within the State, during which time it is said the appellant had 24 separate contacts with UC1 and/or UC2. 3. The two Gardaí were detailed to pose as Polish drug couriers. They were provided with a Polish mobile phone and a contact number (the “8883” number) for a contact referred to as “Teemore”. The 24 contacts said to have occurred with the appellant included three face to face meetings on the 15th, 17th and 19th September, 2010. During the course of the contacts, it is said the appellant gave UC1 and UC2 money to pay for their hotel, to feed themselves, and supplied two airline tickets to Brazil, together with $1,000 in cash. It is said discussions took place as to the amount of drugs to be ingested, the form and weights in which the drugs would be packaged, the hotel where they were to stay, what both carriers would do on the journey, and how they would liaise on their return to this jurisdiction. 4. The central focus of this judgment relates to the fact that these contacts were recorded, and audio recordings and transcripts of these were put in evidence at the trial. Both UC1 and UC2 verified the contents of the recordings and transcripts in their evidence. Neither UC1 nor UC2 gave viva voce evidence of the entirety of the conversations between themselves and the accused at the trial, but, rather, simply verified the transcripts of the conversations which were given to the jury despite objections by counsel for the appellant. Agreed stance of the parties What is in issue in this judgment The “authorisation” and “approval” of devices used for surveillance 8. There is a distinction in law between an “authorisation” for the use of surveillance equipment and an “approval”. A District Judge authorises the use of the equipment. In cases of urgency, a superior officer of An Garda Síochána may approve that use. The appeal relates to matters of evidence and law. As to the former, an authorisation pursuant to the 2009 Act was obtained from a judge of the District Court permitting the installation/use of a “surveillance device” within a room in the Regency Hotel for the period of the 14th to the 18th September, 2010. The authorisation did not permit of the use of the recording device in any other location. The conversations and meetings did not in fact take place in the room at the Regency Hotel although that authorisation was specific to that location. Some were outside the hotel in the immediate vicinity; some were elsewhere. Some were on the telephone. The judicial authorisation obtained from the District Court pursuant to the 2009 Act covered the period from the 14th September, 2010, to the 18th September, 2010. Thus, it expired at midnight on the 18th September, 2010. The following day, the 19th September, 2010, was a Sunday. The judgment also touches on an approval granted by a senior member of the Gardaí on the morning of the 19th, said to be in circumstances of urgency, when, the evidence disclosed, no attempt was made on the 17th, 18th or 19th September, 2010, to obtain further judicial authorisation. A very relevant consideration is whether, prior to the enactment of the 2009 Act, evidence of what had occurred might have been admissible. The evidence The testimony of Detective Sergeant Roberts 11. Among other contacts, a face to face meeting between UC1 and the appellant took place on the 15th September, 2010. The conversation was recorded by UC1 on the device which had been issued to him by Detective Sergeant Roberts. For this, UC1 had both a microphone and a recording/transmitting device fixed and concealed on his person. 12. In respect of the two further face to face meetings which took place between the appellant and UC1 on the 17th and the 19th September respectively, the audio was transmitted by the device carried by UC1 (i.e. a microphone), and recorded “live” by Detective Sergeant Roberts who was in a vehicle close by. 13. Under cross-examination, Detective Sergeant Roberts indicated that the objective of An Garda Síochána was to record, both in audio and video form, the suspect “Teemore” within the room at the Regency Hotel where UC1 and UC2 were staying. The Detective Sergeant accepted that the legislation under which the Gardaí were acting, the 2009 Act, was “very new” at the time, and something that none of the investigators had dealt with before. He accepted that the device issued to UC1 was not equipment routinely issued to a member of An Garda Síochána, and that the device was “highly developed, specialised equipment, covert for the use of members of An Garda Síochána without the knowledge of anybody in their vicinity”. The Detective Sergeant testified that the purpose of the operation had been to obtain evidence for subsequent use in court, and that every meeting, and every conversation, was recorded by the same equipment including all telephone conversations. The recordings obtained therefrom were subsequently given to UC1 who made verbatim transcripts of the dialogue contained therein. 14. Detective Sergeant Roberts was, by the 17th September, 2010, aware of a conversation recorded on that date between the appellant and the undercover police officer during the course of which arrangements were put in place for the two “drug mules” to travel to South America on the 19th September, 2010, as opposed to the previously arranged date of the 18th September, 2010. The testimony of Detective Superintendent John O’Driscoll 16. In the course of his testimony, the Detective Superintendent accepted that there were two different views within An Garda Síochána as to the utilisation of this equipment. Some members of the force believed that the use of these devices came within the ambit of the new Act, whereas others took the view that the usage of the equipment did not. 17. Additionally, Detective Superintendent O’Driscoll testified that, on the morning the 19th September, 2010, he contacted a senior officer, Detective Superintendent Johnson, seeking what is termed an “approval” on the grounds of urgency (again pursuant to the Criminal Justice (Surveillance) Act 2009) for the use of the device to be placed on UC1, i.e. the same device that had been utilised previously. This approval, stated to be pursuant to the Act of 2009, was granted by Detective Superintendent Johnson for the period 9 a.m. to 9 p.m. on the 19th September 2010. It is to be granted in circumstances of urgency identified in the Act. 18. Detective Superintendent O’Driscoll accepted a proposition, put to him in cross-examination, that he was in “no doubt” that what was proposed to be done between the 14th and 18th September 2010 at the Regency Hotel “constituted surveillance within the meaning of the [Criminal Justice (Surveillance) Act 2009]”. He accepted defence counsel’s proposition, that, having regard to the conversations recorded on the 17th September, 2010, (a Friday), and alleged to have taken place between the appellant and the undercover police officers, that the plan had changed significantly in that the proposed trip to South America had been moved back from the 18th September, 2010, to the 19th September, 2010, outside the period covered by the judicial authorisation obtained on the 14th September, 2010. The Detective Superintendent accepted he kept no written record or notes in respect of his conversation with Detective Superintendent Johnson on the morning of the 19th September, 2010, whereby, on grounds of urgency, he sought approval of a superior officer for the use of a surveillance device described in the explanation as “an audio device suitable for a jacket”. 19. The Detective Superintendent also accepted, in the context of the stated urgency of the application to Detective Superintendent Johnson on 19th September 2010, that no enquiries were made as to the availability of a judge of the District Court to hear an application for any variation or renewal of the authorisation to conduct “surveillance”. The testimony of Detective Superintendent William Johnson 21. Under cross-examination, Detective Superintendent Johnson confirmed that the device used was issued from his unit, but denied defence counsel’s proposition that it was issued “for the purpose of surveillance” stating that “it was for the purpose of monitoring a conversation by an undercover [member of An Garda Síochána]”. The Detective Superintendent indicated he had not been made aware of a conversation recorded on the 17th September, 2010, during which the date of the planned departure of the two Polish “drug mules”, that is UC1 and UC2, to South America had been shifted from the 18th to the 19th September, 2010. He confirmed that, on the 19th September, 2010, he had discussed with Detective Superintendent O’Driscoll the possibility of seeking a further authorisation from a judge of the District Court, but that no enquiry was made as to whether a judge was available to hear such application. The testimony of Garda UC1 23. Under cross-examination, he confirmed that the device in question was the only one which had been used, that the recordings had been used to jog his memory regarding specific things that had been said when making notes; confirmed also that just after the completion of the operation, he compiled verbatim transcripts of the recordings of the three face-to-face meetings on the 15th, 17th and 19th September 2010; accepted that the contemporaneous notes recorded in the book/diary were different in some particulars from the verbatim transcripts subsequently prepared; stated that at the time of the operation he had not been briefed in relation to the provisions of the Criminal Justice Surveillance Act 2009; and accepted counsel’s proposition that during the course of the operation he was “observing”, “monitoring” and “recording” the appellant. The witness did not accept that he was at the time of the meeting engaged in surveillance. The ruling of Dublin Circuit Criminal Court 25. The basis of the trial judge’s finding is, of course, fundamental. He ruled that what had taken place were face-to-face meetings and, by reason of that, they did not come within the definition of “surveillance”. He ruled that surveillance meant that there would be actions of a non-participant third party looking at and noting the activities of another party. Turning to the constitutional right of privacy, he held that a right of privacy was not engaged when the activity sought to be recorded was a criminal offence. It is necessary then to consider whether the learned trial judge was correct in law in allowing the content of these transcripts go to the jury. This is without prejudice to the appellant’s right, on any retrial, to object to the admissibility of viva voce evidence of the meetings on other grounds. The concept of “surveillance”
(b) monitoring or making a recording of places or things, by or with the assistance of surveillance devices.”
(a) an apparatus designed to visual acuity or night vision, to the extent to which it is not used to make a recording of any person who, or any place or thing that, is being monitored or observed, (b) a CCTV within the meaning of s. 38 of the Garda Síochána Act 2005, or (c) a camera, to the extent to which it is used to take photographs of any person who, or anything that, is in a place to which the public have access.” The appellant’s contentions The respondent’s submissions 30. In essence, therefore, prosecution counsel’s submission is that the nature of the interaction between UC1, UC2 and the appellant could not be “surveillance” because of the interaction between the Gardaí and the subject of the operation, and that the concepts of “monitoring” and “observing” imported a distance from the subject of those activities. Whilst “listening to” can be an activity carried out by a participant to the conversation, one cannot be said to “listen to” a conversation to which one is a party “by means of a surveillance device”. Counsel contended that the concept of recording is an activity which could be equally carried out by a party to a conversation, or one at a distance, but the word should be read in the light of the Act generally which relates to activities “from afar”. He submitted that further support for that interpretation can be gained from a consideration of the devices said to be “excluded” from the definition of surveillance devices, such as CCTV, binoculars, night vision devices and cameras, all of which imply a monitoring from a distance. 31. On the assumption that compliance with the Act was necessary, counsel for the Director submitted that the intent of the legislation was simply to render lawful activities which previously would not have been such. He cited s. 2(2) of the 2009 Act, which expressly states that,
32. By analogy, counsel urges this court to adopt interpretations of the definitions in the 2009 Act similar to those to be found in the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. Section 1 of the 1993 Act defined “interception” as meaning:
(i) that consists of listening or attempted listening to, or the recording or attempted recording, by any means, in the course of its transmission, of a telecommunications message, other than such listening or recording, or such attempt, where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording. (ii) …” 33. Counsel pointed out that a separate authorisation had been obtained for the purpose of audio and visual recording of the hotel room. He rejected the suggestion in the appellant’s submissions that UC1 had acknowledged that he was engaged in “surveillance”, but, rather, drew attention to the fact that the Garda had denied he was engaged in surveillance but qualified references to monitoring and recording the appellant by saying that “he was with him”. The right to privacy
35. The court accepts that, as the Law Reform Commission pointed out in its Report on Privacy in 1998, a person is entitled to “reasonable expectation of privacy” even in a public place. The Commission’s Report takes care to identify context as being a major factor in determining the extent of the right of privacy and giving rise to a “reasonable expectation of privacy”. The law does not prohibit police surveillance (see Kane v Governor of Mountjoy Prison [1988] I.R. 757). The question is whether covert police activity involving aural and video devices amounts to an interference with private life. 36. As the European Court of Human Rights pointed out in Ludi v Switzerland [1992] 50 E.H.R.R. 173, the closer one is to pure criminal activity then the less is the reasonable expectation of privacy. In Ludi, the objective of the police at the outset had been to arrest, and not merely to observe or gather evidence. There is a continuum ranging from outright participation in crime to fringe, and perhaps unwitting, involvement. That court recognises that intelligence gathering is vital to the work of police force. However, Ludi did not directly address electronic means of covert surveillance. This has not been considered in any Irish authority. In general, there is a discernable qualitative difference between a face-to-face encounter between a suspect and a member of the Gardaí on the one hand, and carrying out surveillance on the other. 37. There can be no doubt that the State may make incursions into the right of privacy in accordance with law. This is particularly the case in circumstances where the State is seeking to provide in relation to “the investigation of arrestable offences, the prevention of suspected arrestable offences and the safeguarding of the State against subversive and terrorist threats”. Nevertheless that law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which public authorities are entitled to resort to such covert measures and it must provide necessary safeguards for the rights of individuals potentially affected. In the view of this court, that is precisely the intent and purpose of the Act of 2009. 38. Indeed, in the particular circumstances of this case, where one is dealing with an alleged plot to import large quantities of controlled drugs, the common good must weigh heavily in the balance. It cannot be said that the accused’s reasonable expectation of privacy extends to involvement in any such alleged illegal enterprise. That is not to say that this accused is left without protection; but to acknowledge that the safeguards granted under the 2009 Act adequately vindicate his rights in this regard.
The definition of “surveillance” 40. It has long been accepted that the result of interpretation clauses in statutes can be to give an artificial meaning to words and to bring incongruous things within the meaning of the statute. In Savoy Hotel Company v. London County Council [1900] 1 QB 665, Channell J. stated at p. 669:
41. It is, therefore, not generally open to a court to impart any other meaning or to cut down a definition found in the interpretation section of an Act, even where this results in a consequence which is unnatural or unexpected. Despite the court’s reservations as to the correctness as the choice of the term “surveillance” to cover all activities set out in interpretation section (s. 1), and the failure to elaborate on the extent of those activities, the court considers that the effect of s. 1 of the 2009 Act was to enlarge the traditional and well understood meaning of “surveillance”. The application of the 2009 Act
Information obtained otherwise than as a result of surveillance 45. Even if the Act of 2009 had not been enacted, it would not be unlawful, (subject to arguments based on the constitutional right to privacy and perhaps on Articles of the European Convention on Human Rights) for an undercover member of An Garda Síochána in the course of such an investigation as is mentioned in the preamble to the Act of 2009 to make personal contact with, or to speak to another person for the purpose of obtaining information where that other person is entirely unaware of the covert purpose of the meeting. 46. This Court considers that it was not the intention of the legislature to include within the definition of “surveillance”, investigative practices and procedures which did not require the protection of the Act in order to be lawful. To bring such practices and procedures, already subject to legal control, within the terms of the 2009 Act, could well lead to a substantial reduction in the benefits to the public good and the security of the State which the legislature was seeking to achieve in enacting the 2009 Act. A court is not under a duty to “readily adopt an interpretation which leads to an artificial or absurd result” (per Kearns J. in Director of Public Prosecutions v Moorehouse [2006] I.R. 421 at p. 444). Information or materials obtained as a result of “surveillance” The admissibility of evidence obtained pursuant to the authorisation 49. Section 14(4) of the Act grants a discretion to a trial judge to admit evidence obtained through surveillance “notwithstanding any failure by any member of the Garda Síochána … to comply with a requirement of the authorisation or approval concerned”. This not an absolute discretion, but one which is dependent on the intentions of the member(s) concerned and the interests of justice. In full, s.14(4) of the Act of 2009, provides:
(i) the member or officer concerned acted in good faith and that the failure was inadvertent, and (ii) the information or document ought to be admitted in the interests of justice.
(i) whether the failure concerned was serious or merely technical in nature; (ii) the nature of any right infringed by the obtaining of the information or document concerned; (iii) whether there were circumstances of urgency; (iv) the possible prejudicial effect of the information or document concerned; (v) the probative value of the information or document concerned.” 50. There is no evidence of any mala fides or deliberative or coercive act by members of An Garda Síochána. It was the evidence of Detective Superintendent John O’Driscoll that there was, in September, 2010, a bona fide difference of opinion within the ranks of senior officers in the Garda Síochána as to whether or not the activity of obtaining and recording information disclosed to and in the presence of an undercover garda by a suspected malefactor, who was unaware of the covert purpose of the meeting, required authorisation under the 2009 Act, it being then a relatively new and untried piece of legislation (it became operational on the 12th July, 2009). It was for the trial judge to weigh the factors contained in s. 14(4)(a) and (b) in coming to decision whether or not to admit the evidence obtained. He had the benefit of hearing all the evidence in the case and assessing their demeanour. This Court following a long-established dicta of the Superior Courts will not attempt to second-guess a trial judge in the exercise of his discretion unless there is shown to be a manifest error in his reasoning. Given the evidence of confusion in the ranks of senior officers of An Garda Síochána as to the scope and administration of the provisions of the 2009Act, then a relatively new Act, this court is not convinced that a manifest error has been shown in the judge’s reasoning and, therefore, will not interfere with his decision to admit the transcripts of the recordings of the 15th and 17th September, 2010.
The admissibility of evidence obtained pursuant to the approval - the urgency issue 51. The approval for surveillance provided for in s. 7(2) of the Criminal Justice (Surveillance) Act 2009 purporting to permit the use of “a surveillance device” capable of being covertly placed in a jacket was given by Detective Superintendent William Johnson on the morning of the 19th September, 2010, to Detective Superintendent John O’Driscoll. This was for surveillance on the 19th September, 2010, and was for a limited time. The approval here is to be distinguished from a judicial authorisation granted in the context of the incursion into the constitutional right engaged. 52. However before “approval” for surveillance is granted by a superior officer of An Garda Síochána, s. 7(2) of the 2009 Act provides that the issuing officer must be satisfied that one or more conditions of urgency as outlined in the subsection apply. These include absconsion, obstruction of justice, destruction of evidence or the security of the State. Neither Detective Superintendent Johnson, nor Detective Superintendent O’Driscoll made any notes as to the circumstances or the grounds upon which the “approval” was issued. Notwithstanding the absence of any such notes, both senior officers stood over the proposition that “circumstances of urgency” were discussed between them prior to the granting of the “approval”. But these were insufficiently specific. No reasonable explanation was, however, given to the trial court for the failure to obtain a further judicial “authorisation” or renewal of the exiting one. 53. In DPP v Peter Byrne [2003] 4 I.R. 423, the Supreme Court, in interpreting the provisions of s. 8(2) of the Criminal Justice (Drug Trafficking) Act 2006 (providing for the issue of a search warrant by an officer of An Garda Síochána in circumstances of urgency), held that an application for a search warrant by a member of an Garda Síochána had to be made to a District Court judge or a peace commissioner unless the very limited circumstances permitting the application to be made to a superintendent were present, and those circumstances had to be demonstrated for the warrant to be valid. Hardiman J. stated:
The interaction between this approval and s. 14(4) of the 2009 Act 55. What is the extent of the discretion afforded to a trial judge by s. 14(4)? It appears to the Court that the discretion is limited to the admission of evidence of information or material obtained where there has been a failure to comply with a requirement of that authorisation or approval. It does not extend to information or materials obtained under an invalid authorisation or approval as s. 14(4) is dependent on there being “an authorisation or … an approval granted in accordance with section 7 or 8”. In other words, for s. 14(4) to apply, a validly granted authorisation or approval is a pre-requisite. That prerequisite is not satisfied on the evidence. 56. In light of the findings above that there were no circumstances of urgency in which it would be necessary to grant an approval, and that, therefore, no valid approval could issue under s. 7, it follows that the trial judge would not have had a discretion under s. 14(4) to admit the evidence in respect of the recordings/transcripts of the conversation on the 19th September, 2010. These materials should not have been made available to a jury. Conclusions 58. However, the actions of the gardaí in recording/transmitting the exchanges between the 15th and 19th did amount to “surveillance”. This does not automatically render the evidence obtained in that manner inadmissible. Rather, it must be considered in the context of s.14(4) of the 2009 Act, which grants a trial judge a discretion to admit “surveillance” evidence obtained in non-compliance with a valid authorisation/approval if certain conditions had been satisfied. That is what has happened here in respect of the recordings obtained pursuant to the authorisation covering the period from the 14th to the 18th September, 2010. This Court sees no manifest error by the trial judge in the exercise of his discretion and will not interfere with his decision to admit this evidence. 59. However, this discretionary power of the trial judge under s. 14(4) does not extend to evidence obtained where there has been no valid authorisation or approval. This Court deems the approval granted for the 19th September, 2010, to be invalid as there is no evidence that any circumstances of urgency, as prescribed by s. 7(2) of the 2009 Act, were present. Absent clear compliance with the provisions thereof, the conclusion of this court is that the admissibility of the transcripts of the recordings on that date should not have been permitted. 60. As relevant and inadmissible evidence was been placed before the jury, the court has no alternative but to quash the conviction and order a retrial. | ||||||||||||