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D.P.P. v. Heaphy [1999] IEHC 98 (9th February, 1999)
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[1999] IEHC 98
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D.P.P. v. Heaphy [1999] IEHC 98 (9th February, 1999)
THE
HIGH COURT
No.
1998
1707 SS
IN
THE MATTER OF A CONSULTATIVE CASE STATED PURSUANT TO SECTION 52(1) OF THE
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
BETWEEN
THE
DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR
AND
JOHN
HEAPHY
ACCUSED
JUDGMENT
of Mrs Justice McGuinness delivered the 9th day of February 1999
"52(1)
A Judge of the District Court shall, if requested by any person who has been
heard in any proceedings whatsoever before him (other than proceedings relating
to any indictable offence which has not been dealt with summarily by the Court)
unless he consider the request frivolous, and may (without request) refer any
question of law arising in such proceedings to the High Court for determination."
2. The
questions of law put to this Court by the learned President of the District
Court arise from the prosecution before him at the District Court at Anglesea
Street, Cork, of the accused John Heaphy. Mr Heaphy was charged with two
offences under the Misuse of Drugs Acts. The summonses setting out the two
charges are annexed to the Case Stated.
3. At
the hearing before the learned President the Prosecutor was represented by
Superintendent P. J. Brennan of Mayfield Garda Station in the City of Cork.
The accused was represented by Mr Frank Buttimer, Solicitor, of 19 Washington
Street, Cork. At the outset Mr Buttimer on behalf of his client indicated to
the Court that he was challenging the validity of the issue of a search warrant
about which evidence was to be given by the Prosecution. The Court embarked on
hearing the evidence of Garda John Sheedy in relation to the facts of the case
and Mr Buttimer again indicated to the Court that he was objecting to the
introduction of any evidence being offered by Garda Sheedy which resulted from
the execution of the search warrant. This search warrant had been obtained by
Garda Sheedy from Mr Denis Forde, Peace Commissioner. The President of the
District Court indicated that he would continue to hear the evidence of Garda
Sheedy and would hear relevant submissions in relation to the matter at the
conclusion of Garda Sheedy's evidence. He adopted this course without
prejudice to the right of the accused's Solicitor to challenge the
admissibility of the evidence obtained on foot of the search warrant.
4. The
learned President of the District Court then sets out in numbered paragraphs
the evidence which was given before him as follows:
(I)
"On
the 3rd day of June 1995 Garda John Sheedy of Anglesea Street Garda Station in
Cork had obtained a warrant under Section 26 of the Misuse of Drugs Act 1977
to 1984 by the swearing of an information before a Peace Commissioner, Mr
Denis Forde. Garda Sheedy gave evidence that he had attended before Mr Forde
and had sworn an information (which is included at Annex 2 of the Case Stated
and forms part thereof). He gave evidence that he told Mr Forde that the basis
of the information was that had received information from an informant who had
proved reliable in the past and that he, Garda Sheedy, had watched the premises
the subject matter of the search warrant over several days and had seen
activity which he considered associated with drugs. He informed the Court that
he had also seen people he knew to be involved with drugs coming and going from
the house. He stated that he satisfied Mr Denis Forde, the Peace Commissioner,
as to these matters and that Mr Forde then signed the search warrant. He said
that before the warrant was signed Mr Forde considered the information given
on oath by himself. The search warrant is contained in this Case Stated at
Annex 3.
(ii) During
the course of his evidence Garda Sheedy produced before the Court his own diary
in which he had made a contemporaneous note of the Inquiry conducted by the
Peace Commissioner prior to his signing the search warrant. He also produced
before the Court the diary of the late Peace Commissioner himself , whereby an
entry had been made by Garda Sheedy with Mr Forde's permission , relating to
the extent of the Inquiry conducted by the late Mr Forde prior to the issuance
of the search warrant.
(iii) Garda
Sheedy gave evidence that on the evening of the 3rd June 1995 at about 5.55
p.m. he along with other members of the Drug Squad went to 190 Rathpeacon Road.
There he met the owner of the house and identified himself and showed him the
search warrant referred to earlier. He stated that he knew this man to be John
Heaphy who was the owner and occupier of the house and he cautioned Mr Heaphy
that he 'was not obliged to say anything unless he wished to do so but that
anything he did say would be taken down in writing and may be given in
evidence'. Mr Heaphy replied that there was nothing in the house.
(iv) Garda
Sheedy stated that whilst searching the house he found in a refuse bag in the
back garden a large quantity of suspected cannabis resin and ecstasy. He
called the owner Mr Heaphy and again cautioned him in like manner as he had
done earlier. Mr Heaphy then replied ''They're mine.' He then arrested Mr
Heaphy at 6.20 p.m. and brought him to Mayfield Garda Station where he met with
the member-in-charge, Garda David Hughes. He made a request of Garda Hughes to
have Mr Heaphy detained pursuant to Section 4 of the Criminal Justice Act 1984
for the proper investigation of the offence. He stated that the grounds of his
application were that he had received information that the prisoner had
cannabis resin in his house and that he was selling same and that he had then
obtained a warrant to search the house and had found a large quantity of
cannabis resin and ecstasy. He stated to the Court that he told Garda Hughes
that in total there were 44 foil wrapped deals of suspected cannabis resin and
16 suspected ecstasy tablets and that the quantity could not be for his own use
and that he wanted to investigate where the prisoner had got it from, who he
had got it from and who he was going to sell it to. Garda Hughes then detained
Mr Heaphy under Section 4 of the Criminal Justice Act 1984 and informed him
accordingly at 6.25 p.m. and Mr Heaphy was placed in a cell.
(v) At
approximately 7 p.m. Garda Sheedy took Mr Heaphy from the cell and brought him
to an interview room along with Garda Bill Dawes. They spoke to Mr Heaphy in
relation to the drugs found and took a memo after cautioning him that he was
not obliged to say anything unless he wished to do so, but that anything he did
say would be taken down in writing and might be given in evidence. He told the
Court that he showed John Heaphy the cannabis and ecstasy tablets found. Mr
Heaphy then indicated that he wished to make a statement and Garda Dawes took
one from him after a caution. The deals of cannabis and ecstasy were then
labelled and packaged and were handed to Garda Mary King for conveyance to the
Forensic Science Laboratory for analysis. Garda Sheedy later received a
certificate confirming that the drugs were controlled drugs.
(vi) Mr
Buttimer, Solicitor, on behalf of the accused cross-examined Garda Sheedy in
relation to his obtaining of the search warrant referred to. Mr Buttimer
informed the Court that he was not contesting the cautioned statement made by
the accused whilst detained under Section 4 of the Criminal Justice Act save
and insofar as same was affected by the alleged invalidity of the search
warrant."
5. The
learned President then points out that Mr Denis Forde, Peace Commissioner, was
deceased at the time of the hearing before him and consequently the prosecution
was not in a position to ensure his attendance before the Court. The learned
President then goes on to summarise the submissions made by Mr Buttimer on
behalf of his client in regard to the alleged invalidity of the search warrant
and the necessity to have the Peace Commissioner present in person in Court to
give evidence in regard to his issuing of the warrant and his state of mind at
the time. He also summarises the replies given by Superintendent Brennan on
behalf of the Director of Public Prosecutions . There is no need to detail
these submissions here since they are covered by the submissions made before me
by Counsel for the accused and Counsel for the Director of Public Prosecutions.
6. Having
heard the submissions the President of the District Court agreed to state a
consultative case to this Court and adjourned the trial before him pending the
determination of the case stated. He then sets out the questions of law on
which he requests the assistance of this Court. They are as follows:-
(i) "Was
the evidence given to the Court of Trial by Detective Garda John Sheedy
sufficient
to prove on a
prima
facie
basis
the valid issue of the search
warrant in question.
(ii) If
the answer to No. 1 is in the affirmative, is it necessary that the Peace
Commissioner
should give evidence on oath to prove his enquiry?
(iii) If
the warrant was not validly issued, was a search on foot of the said warrant
in
breach of the constitutional rights of the Defendant thus rendering the
evidence
obtained on foot of the said warrant inadmissible?
(iv) Is
the cautioned statement of the Defendant of admission in relation to the
facts
contained therein sufficient in the absence of the other evidence
questioned
herein sufficient to enable the Court to proceed to conviction?"
7. The
information sworn by Garda Sheedy is annexed to the Case Stated. This is set
out in a printed form with the relevant information written in by hand. It
states as follows:-
Information
The
information of Garda John Sheedy of An Garda Siochana who upon oath states as
follows:-
"I
am a member of An Garda Siochana and I suspect, on the basis of
information
within my possession, that
(a) A
person is in possession on the premises or other land at 190 Rathpeacon
Road,
Cork, in contravention of the Misuse of Drugs Acts, 1977 and 1984, of
a
controlled drug, namely cannabis, cannabis resin, methylenediox
ethylamthepamine
(MDMA), L.S.D.
and
that
(b) Such
drug is on a particular premises or other land
"
The
basis for such suspicion is that I have received information from an informant
who has proved reliable in the past. I have also carried out surveillance on
the above premises and noticed activity I believed to be in connection with
drugs. I also have seen people I know to be involved with drugs coming and
going from the house. I hereby apply for a warrant to search for and seize
the article named above.
8. The
information is sworn on the 3rd June 1995.
9. The
search warrant is also annexed to the case stated and again it is a printed
form
with the relevant information written in in handwriting. The relevant
part
reads as follows:
Warrant
to Search
(Pursuant
to
Section 26 of the Misuse of Drugs Acts, 1977 and 1984)
Whereas
I, the undersigned Peace Commissioner, am satisfied on the information on oath
of Garda John Sheedy of An Garda Siochana that there is reasonable grounds for
suspecting that a controlled drug to which the Misuse of Drugs Acts 1977 and
1984 applies namely:
Cannabis,
cannabis resin, LSD, methylenedioxethylamthepamine (MDMA)
or
any pipe, document, utensil, forged prescription or a duly issued
prescription
which has been wrongfully altered, is, in contravention of the
said
Act or regulation made thereunder in the possession or under the
control
of any person in the premises or other land at 190 Rathpeacon Road,
Cork.
10. The
remainder of the warrant is in the customary form. It is dated the 3rd June
1995 and signed by Denis Forde, Peace Commissioner.
11. Counsel
for Mr Heaphy, the accused, submitted that it was essential to the validity of
the search warrant that the Peace Commissioner himself be satisfied of the
grounds on which the Garda suspected that a controlled drug was on the premises
at Rathpeacon Road. He relied as an authority for this submission on
Byrne
v Grey
[1988] 1 IR 31 and
DPP
v Kenny
[1990] ILRM 569. He stressed the importance of the inviolability of the
dwelling of every citizen and referred to Article 40.5 of the Constitution.
This led to the need for a strict interpretation of any rule in regard to the
validity of search warrants and he here referred to the judgment of Carney J in
DPP
v Dunne
[1994] 2 IR 539. Counsel for the accused submitted that in addition to these
requirements it was necessary for the Peace Commissioner who issued the warrant
to be present in Court and to give evidence of his state of mind and the
reasons why he was personally satisfied by the information sworn before him by
Garda Sheedy. In regard to this point of his submission he drew the attention
of the Court to the judgment of the Supreme Court in
DPP
v Byrne
[1989] ILRM 613. In that case the accused had been arrested under Section 30
of the Offences Against the State Act 1939. His initial period of detention
had been extended for a further four hours by a Garda Chief Superintendent.
During the period of extended detention an inculpatory statement was made by
the accused which the prosecution wished to adduce in evidence. The Chief
Superintendent was no longer alive at the date of the trial and no evidence
could therefore be adduced as to the state of his mind when directing the
extension period. Accordingly, the trial Judge ruled the statement
inadmissible and directed the jury to acquit the Respondent. The Director of
Public Prosecutions appealed against the acquittal. On appeal the Supreme
Court held that the prosecution had failed to show that the detention of the
Respondent was lawful at the time the statement was made. There was no
suggestion that the Chief Superintendent did not suspect the Respondent of
having committed a scheduled offence at the time the extension period was
granted, but such suspicion had to be expressly proved and could not be
inferred either from the signing of the formal direction or by hearsay evidence
of a verbal direction. The necessary evidence could be given only by the Chief
Superintendent in question.
12. During
the course of his submission Counsel for the accused also raised a matter which
did not arise on the case stated by the learned President of the District
Court. He queried the procedure whereby Garda Sheedy not only made a
contemporaneous entry in his own diary but also, with the permission of Mr
Forde, made an entry in regard to his information and the issuing of the
warrant in the Peace Commissioner's own diary. So far as I understand it,
Counsel was implying that Mr Forde was in some way incapable of properly
carrying out his functions through illness.
13. There
is no evidence before either the District Court or this Court which in any way
supports this implication. No such suggestion was made in the District Court
by Mr Buttimer, Solicitor for the accused. It appears that some two years
elapsed between the issue of the warrant and the hearing before the District
Court and no doubt all the circumstances were fully known to Mr Buttimer. More
importantly, this Court is confined to considering and determining the
questions put before it by the learned President of the District Court and no
other question. I therefore totally reject this part of Counsel's submission.
14. Counsel
for the Director of Public Prosecutions accepted that before issuing a search
warrant the Peace Commissioner must himself be satisfied of the grounds for
the Garda suspicions, and that the Commissioner could not act merely as a
rubber stamp. However, on the facts of the instant case, he contrasted the
detailed nature of Garda Sheedy's information with the bare statement of the
Garda suspicions in both
Byrne
v Gray
and
DPP
v Kenny.
He submitted that the information sworn by Garda Sheedy was quite
sufficiently factual and detailed to enable the Peace Commissioner to be
satisfied as to the grounds for issuing the warrant.
15. On
the question of the need for the Peace Commissioner to be present in Court,
Counsel for the DPP relied on the judgment of the Court of Criminal Appeal in
DPP
v Ian Smith
(unreported Finlay CJ 5th November 1990). In this judgment the learned Chief
Justice reinforced the ratio of
Kenny's
case stating (at page 3):
"The
Supreme Court in the
Kenny
case clearly indicated that the Commissioner was carrying out a duty of
reaching a decision and that in so doing he must not act as a mere rubber
stamp, to paraphrase the reason for the decision, on the information of a
member of the Garda Siochana......."
In
the
Smith
Case the net point being raised was that when the Garda involved went to a
Peace Commissioner to obtain the search warrant he had sworn an information
in writing, consisting merely of a statement that he had knowledge and belief
that the stolen property might be found on the premises. He gave evidence that
in addition to that he supplemented that information by stating that the owner
of the stolen jewellery had seen what she was satisfied was two of the
objects of jewellery in the window of the Defendants' shop. The learned
Chief Justice went on to say:
"It
was submitted by Mr O'Carroll on behalf of the appellant that that oral
evidence
changed the situation and that the court could not act under such
warrant
which was obtained in part on that oral evidence without having the
evidence
of the Peace Commissioner who granted it. This Court is satisfied
that
there is nothing in that submission."
16. Mr
McDonagh on behalf of the DPP submitted that equally in the instant case there
was nothing in the point with regard to the presence in Court of the Peace
Commissioner.
17. With
regard to the
DPP
v Byrne
he submitted that the circumstances were entirely different and that there
was no evidence before the Court in that case of the material which the Chief
Superintendent had before him and which he had considered before directing the
extension of the period of custody.
18. It
was common case between Counsel (and in this, in my view, they were correct)
that if the search warrant was in fact invalid the search carried out on foot
of it was in breach of the constitutional rights of the accused, and any
evidence obtained as a result of such search was inadmissible, as was also the
inculpatory statement made by the accused when shown the articles found on the
premises - see, for example,
DPP
v Healy
[1990] ILRM 313.
19. The
search warrant in the instant case was obtained from Mr Denis Forde, the Peace
Commissioner, pursuant to Section 26(1) of the Misuse of Drugs Act 1977 as
amended. Section 26(1) of the 1977 Act as amended provides:-
"If
a Justice of the District Court or a Peace Commissioner is satisfied by
information
on oath of a member of the Garda Siochana that there is
reasonable
ground for suspecting that -
(a) a
person is in possession in contravention of this Act on any premises
or
other land of a controlled drug, a forged prescription or a duly
issued
prescription which has been wrongfully altered and that such
drug
or prescription is on a particular premises or other land......
such
Justice or Commissioner may issue a search warrant mentioned
in
sub-section (2) of this section."
In
DPP
v Kenny
[1990] ILRM 569 the information sworn by the Garda who sought the warrant was
in the following terms:-
"I
am a member of An Garda Siochana and I suspect on the basis of
information
within my possession that:-
(a) a
person is in possession on the premises or other land the Flat 1, Ground
Floor,
1 Belgrave Place in contravention of the Misuse of Drugs Acts 1977
and
1984 of a controlled drug, namely, diamorphine, or cannabis resin, and
that
(b) such
drug is on a particular premises or other land Flat 1, Ground Floor, 1
Belgrave
Place, Rathmines. I hereby apply for a warrant to search for and
seize
the articles named above."
20. The
information sworn in the previous case of
Byrne
v Gray
[1988] IR 31 was along very much the same lines.
In
DPP
v Kenny
,
the Court of Criminal Appeal had found that the warrant issued was invalid by
reason of the fact that there was no evidence that the Peace Commissioner was
himself satisfied that there were reasonable grounds for suspecting the
existence of controlled drugs on the premises, but rather that the only
evidence was to the effect that he relied in its entirety on the information in
writing submitted to him by the Garda Siochana, in other words, that he relied
on the fact that the Garda had grounds for so suspecting. In that case also
the Peace Commissioner had died before the date of trial. When the matter was
appealed to the Supreme Court the then Chief Justice, Finlay J, quoted with
approval a section of the judgment of Hamilton P. (as he then was) in
Byrne
v Gray
as follows:-
"These
powers encroach on the liberty of the citizen and the inviolability of
his
dwelling as guaranteed by the Constitution and the Courts should construe
a
Statute which authorises such encroachment so that it encroaches on such
rights
no more than the Statute allows, expressly or by necessary implication.
The
Statute authorising such encroachment provides at Section 26 thereof that
a
Justice of the District Court or a Peace Commissioner must be satisfied by
information
on oath of a member of the Garda Siochana that there is
reasonable
ground for the suspicion before he is entitled to issue the search
warrant
mentioned in the Act as amended."
21. I
am clearly bound by the decision in
DPP
v Kenny
and I accept that the Statute must be construed strictly. However I would
agree with Counsel for the DPP that the information sworn by Garda Sheedy in
the instant case is a very different matter from the informations sworn in
either
Byrne
v Gray
or
DPP
v Kenny
.
In his information Garda Sheedy spoke of having obtained information from a
usually reliable source and of his surveillance of the premises and what he saw
during the course of that surveillance. It seems to me that having this
information before him the Peace Commissioner had quite sufficient material on
which to satisfy himself that he should issue the warrant and he therefore
proceeded to do so. He was not in my opinion acting as a "rubber stamp" in
this instance.
22. With
regard to the submission that the Peace Commissioner would have to be present
in Court and give evidence of his state of mind at the time of issuing the
warrant, I would have no difficulty in following the authority of
DPP
v Ian Smith
quoted above. Provided the Peace Commissioner had sufficient material before
him (as he had in this case) to enable him to satisfy himself of the need to
issue the warrant it must be assumed that he carried out his functions properly
and was so satisfied. I would agree with Mr McDonagh that the situation in
DPP
v Byrne
is a different one, particularly in view of the fact that in that case there
was no evidence of the material which the Chief Superintendent had before him
at the time of making the decision.
23. The
answer therefore to the questions posed by the learned President of the
District Court are as follows:-
(i) Yes
on a
prima facie
basis but it is for the Trial Judge to decide the eventual
question
when he has heard all the relevant evidence.
(ii) No.
(iii)
and (iv)
In
view of the previous answers these questions do not arise.
© 1999 Irish High Court