High Court of Ireland Decisions
You are here:
BAILII >>
Databases >>
High Court of Ireland Decisions >>
The Director of Public Prosecutions v Turner [2019] IEHC 878 (30 August 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC878.html
Cite as:
[2019] IEHC 878
[
New search]
[
Printable PDF version]
[
Help]
Page 1 ⇓
THE HIGH COURT
[2019] IEHC 878
[2019 No. 109 SS]
IN THE MATTER OF SECTION 52 OF THE COURTS
(SUPPLEMENTAL PROVISIONS) ACT, 1961
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR
AND
JOSH TURNER
ACCUSED
JUDGMENT of Mr. Justice Meenan delivered on the 30th day of August, 2019
Background
1. This is a consultative case stated by District Judge Grainne Malone at the request of the
accused.
2. The accused was charged with an offence contrary to s. 36 of the Prisons Act, 2007 (the
Act of 2007). It is alleged that he was found in his cell in possession of a mobile phone.
3. At the trial evidence was given by an officer of the prison that a mobile phone was found
in the accused’s cell. No submissions were made that the accused was not in possession
of the mobile phone and the District Judge found as a fact that the accused was in
possession of the phone. Evidence was given as to the seizure of the mobile phone. No
issue was taken in respect of its seizure, retention or chain of custody.
4. Governor O’Sullivan gave evidence that he was the governor on duty on the day in
question, 28 April 2018. He gave evidence that he has twelve years’ experience in this
role, that he was one of three governors on duty at the time in question and that he was
the senior governor on duty at the time. He said he had not given the accused permission
to have a mobile phone. He also said in evidence that no other governor would have
given permission as it is the policy of the prison not to give such permission. He said that
inmates are made aware of this upon their committal to the prison and there are signs in
the prison saying that no mobile phones are permitted. Governor O’Sullivan said it would
have been exceptional if permission had been given and that he would have been told had
this been done. Under cross-examination by counsel for the accused the governor accept
that each governor has the power to give such permission and that they may do so, but
that in his twelve years as a governor this had never happened. He also accepted that
there is an overall governor of the prison, that person being Governor Mullins. He gave
evidence that there are four governors in total. If Governor Mullins is not on duty, the
next governor in seniority is in charge of the prison. There are normally three governors
on duty at any one time. On 28 April 2018 Governor O’Sullivan was the senior governor
on duty. Governor Mullins was not called to give evidence nor were the other governors.
5. At the close of the prosecution’s case counsel for the accused made an application for a
direction on two related grounds as follows: -
Page 2 ⇓
(a) First, the offence is possession of a mobile phone without permission of the
governor. As no evidence was heard from Governor Mullins the accused was
entitled to an acquittal on this basis; and
(b) Secondly, it was submitted that as evidence was not heard from the other
governors, the accused was entitled to an acquittal as the prosecution had failed to
prove that the accused possessed the phone without permission
6. Counsel for the accused relied upon a decision of the Special Criminal Court in Director of
Public Prosecutions v. Rattigan (Bill No. SSC005/2011). It was submitted that this case
established that in order to prove the offence the prosecution was obliged to call evidence
from each governor to state that they had not given permission. In particular, reliance
was place on the court’s observation that the Act of 2007 does not contain an evidential
presumption that no such permission was granted.
7. In response, the solicitor for the prosecutor submitted that there was no requirement on
the prosecution to call every governor given the nature of summary proceedings and that
the decision of the Special Criminal Court in Rattigan was decided on, and confined to, its
own facts.
8. Having considered the evidence and the submissions of the parties the District Court
Judge had regard to the definition of “governor" in the Act of 2007, the fact Governor
O’Sullivan was the senior governor on duty at the time and that he had not given
permission to the accused to possess a mobile phone. The District Judge also considered
it to be relevant that each person is told upon their arrival to the prison that they may not
possess a mobile phone and that there are signs to that effect around the prison. The
District Judge disagreed with the decision in Rattigan insofar as it held that each governor
was required to give evidence and that that decision was confined to its own facts. The
District Judge indicated that if the accused wished to make the case that permission had
been granted by a particular governor it was open to him to go into evidence himself or to
issue a witness summons to the appropriate governor.
9. Having delivered the decision an application was made on behalf of the accused to seek
the opinion of the High Court by way of a consultative case stated. Consequently, the
opinion of this Court was sought on the following three questions: -
A. In a prosecution for an offence contrary to s.36 of the Prisons Act, 2007, must the
prosecution prove that the governor of the prison did not give permission for the
accused to possess a mobile phone?;
B. In a prosecution for an offence contrary to s.36 of the Prisons Act, 2007, must the
prosecution negate the possibility that each governor of the prison gave an accused
permission to possess a mobile phone?; and
C. In circumstances where the prosecution did not adduce evidence from each and
every governor of the prison that the accused had no permission to possess a
Page 3 ⇓
mobile phone in the prison, is it nevertheless open to me to convict for the offence
in s.36 of the Prisons Act, 2007?
Relevant statutory provisions
10. Section 2 of the Act of 2007 defines “governor” as follows: -
That “governor” means the governor of a prison or an officer of the prison acting on
his or her behalf;
Section 36(1) of the said Act provides: -
“(1) A prisoner who, without the permission of the governor of the prison, possesses or
uses a mobile telecommunications device, or a person who supplies such a device
to a prisoner without such permission, is guilty of an offence and liable –
…”
Consideration of issues
11. The definition of “governor” means the governor of a prison or an officer of the prison
acting on his or her behalf. In this case, for the purposes of the Act of 2007, both
Governor O’Sullivan and Governor Mullins were the “governor” of the prison.
12. Under s. 36(1) of the Act of 2007 in order to prove the offence the prosecutor must
establish that the prisoner had possession of the mobile phone “without the permission of
the governor of the prison”. On the day in question, 28 April 2018, Governor O’Sullivan
was “the governor” of the prison as he was acting on behalf of Governor Mullins.
13. Both the prosecutor and the accused accepted that the applicable standard of proof was
“beyond reasonable doubt”. It was further agreed that the Act of 2007 does not contain
an evidential presumption that no such permission was granted. In para. 4 above I set
out the evidence that was given by Governor O’Sullivan. This evidence was to the effect
that he did not give permission, if permission had been given he would have been told,
that it was the policy of the prison not to give such permission, that inmates are made
aware of this policy on their committal and that there are signs in the prison to this effect.
None of this evidence was challenged. Having heard this evidence, in my view, the
District Judge was entitled to reach the conclusion that it had been proven beyond
reasonable doubt that the mobile phone in the possession of the accused was without the
permission of the governor of the prison.
14. Counsel for the accused relied upon the decision in Director of Public Prosecutions v.
Rattigan. The relevant part of this decisions states: -
“3. Counts 4 and 5: the evidence that the court heard in respect of these matters from
John Sugrue, Mr. Edward Whelan and Fergus Downey, all of whom said they were
governors of the prison. The court also then heard from a number of senior prison
officers, all of whom replied when asked by the prosecution that they did not give
permission to the accused man to have a telephone in his cell on the date in
question. Two persons who could give permission, who were Assistant Governors,
Page 4 ⇓
Martin O’Neill and Chris McCormack were not called. The legislation is drafted
without any presumption that a person does not have the permission and, that
being the case, the onus is on the prosecution to prove the matters. The
prosecution submitted that the Act does not require evidence from various
governors and others, that there is evidence from the governor and the governor is
Mr. Whelan who gave evidence he didn’t give permission.
The court is not satisfied beyond a reasonable doubt in respect of the evidence
adduced in respect of these two matters.”
15. In that case, the court was clearly not satisfied beyond a reasonable doubt in respect of
the evidence adduced. It is not clear if the Special Criminal Court heard evidence of the
type that was adduced in this case. Thus I believe the correct conclusion to be drawn
from Rattigan is that it was decision based on its particular facts.
Conclusion
16. In light of the foregoing, I answer questions raised by the District Judge as follows: -
A. Yes: in a prosecution for an offence contrary to s. 36 the Act of 2007 the onus is on
the prosecution to prove that the accused was in possession of a mobile without the
permission of the governor of the prison. The governor is defined in s. 2 of the Act
of 2007.
B. Yes: s. 36 of the Act of 2007 does require the prosecution to negate the possibility
that each governor of the prison gave an accused permission to possess a mobile
phone.
C. Yes: it is open for the District Judge to convict the accused for an offence under s.
36 of the Act of 2007 notwithstanding the fact the prosecution did not adduce
evidence from each and every governor of the prison that the accused had not
permission to possess a mobile phone in the prison. What is required under s. 36 is
that the prosecution give evidence that the governor of the prison, as defined by s.
2, did not give permission to the accused to possess a mobile phone.