Court of Criminal Appeal allows appeal where invalid warrant search of applicant's dwelling requires evidence exclusion under absolute rule.

COURT OF CRIMINAL APPEAL

Fennelly J.

Murphy J.

De Valera J.

Appeal No. 147/07

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

DAVID LYNCH

APPLICANT

JUDGMENT of the Court delivered on the 2nd day of April, 2009 by FENNELLY J.

1. This application for leave to appeal concerns whether a flat in which the applicant was a mere squatter or trespasser was, nonetheless, his

constitutionally protected dwelling, when an invalid warrant was used to search it.

2. The applicant was tried in the Dublin Circuit Criminal Court before His Honour Judge Matthews and a jury on two counts of being in possession of stolen

property and one of having possession of articles with the intention that they be used in connection with theft or burglary. The jury convicted him on all three

counts. He was sentenced to two years imprisonment on each count, the entire term being suspended on conditions. The present application for leave to

appeal relates to the first count only.

3. All counts were laid as being contrary to relevant sections of the Criminal Justice (Theft and Fraud Offences) Act, 2001 (“the Act of 2001). The gardaí

suspected that there was stolen property to be found at a flat at 34 Pembroke Lane, Ballsbridge, Dublin 4. This led them to apply for a warrant to search

that place. The application was made to a judge of the District Court pursuant to section 48 of the Act of 2001. Sub-section 3 of that section requires that

the warrant “under this section shall be expressed and shall operate to authorise a named member of the Garda Síochána, alone or accompanied by such

other persons as may be necessary…” to enter the place and to search and take away things found there.

4. The gardaí, on searching the flat, found items of stolen property which grounded the conviction on the first count.

5. Crucially, however, the warrant issued by the District Court did not name any particular member of the Garda Síochána. Thus, it did not comply with the

section. On that ground, the learned trial judge held the warrant to be invalid. That decision is not in issue on this appeal. However, at trial, counsel for the

prosecution submitted that, notwithstanding the invalidity of the warrant, the evidence of what was found should be admissible. The reason advanced was

that the applicant was a mere squatter or trespasser in the flat. Hence, it was not his dwelling within the meaning of Article 40, section 5 of the

Constitution. The evidence had, therefore, been obtained unlawfully, but not unconstitutionally and the learned trial judge had discretion to admit it in

accordance with the judgment of Kingsmill Moore J in People (Attorney General) v O’Brien [1965] I.R. 142.

6. The learned trial judge heard evidence in the voir dire concerning the circumstances of the applicant’s residence of the flat. On one side, an agent of the

owner gave evidence that he managed the property for that owner. The property was vacant, as the owner intended to demolish it as part of a new

development. Thus, there was no tenant or other lawful occupier. The gardaí went to this agent to inquire about the status of the property. When he went to

inspect it, he found that the locks had been changed.

7. The applicant gave evidence that he had been given the keys of the flat by a third party, who did not give evidence.

8. The learned trial judge found that the applicant was in the flat with no legal basis or title. He was a trespasser. He thought it could not be right or just that

the same protection would be afforded to a person irrespective of how he came into occupation of premises. He was of the view that a person who moves in

without any authorization whatsoever and as a trespasser to a property which he has absolutely no right to occupy can assert, as a result of his

wrongdoing, should not have the rights and protections afforded to all and every citizen in more usual circumstances. Thus, he held that there had been no

deliberate breach, conscious or otherwise, of the constitutional rights of the applicant. The evidence had been obtained illegally, but since it had not been

obtained unconstitutionally, he ruled that it should be admitted.

9. It was agreed by counsel on both sides at the hearing that, if the evidence was obtained in conscious and deliberate breach of the constitutional rights of

the applicant, the strict exclusionary rule applies. This Court is bound by the Supreme Court decision in People(Director of Public Prosecutions) v Kenny

[1990] 2 I.R. Finlay C.J., delivering the majority judgment, discussed the options of the deterrent and absolute protection principles regarding the exclusion

of evidence and opted firmly for the latter. At page 134 of his judgment he concluded:

“I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be

excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or

accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its (the court's)

discretion.”

10. It is agreed that the absolute exclusionary principle applies in the present case, if the constitutional rights of the applicant to the inviolability of his

dwelling were infringed by the search being conducted, even though unintentionally, on the basis of an invalid warrant. It suffices that the search was

deliberate and conscious, even if the breach of constitutional rights was not. Thus, the question is whether the flat was the dwelling of the applicant within

the meaning of Ar 40, section 5 of the Constitution, which provides:

“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”

11. In the Irish language version, the expression corresponding to “dwelling” is “ionad cónaithe.” The Court is satisfied that the question of whether a place is

the “dwelling” of a person for the purpose of this provision, at least in the context of the criminal law, is one of fact, a view reinforced by the Irish language

version. It is at least quite obvious that the constitutional protection would extend to a wide variety of people with dubious legal titles, such as an

overholding tenant, the widow of a deceased legal owner, or a person in bona fide possession on foot of an invalid title.

12. It is significant, on the facts of this case, that An Garda Síochana, had the address of the flat on their own records as one of a number of addresses for

the applicant. Indeed, the application for the warrant to search the flat was made precisely because the gardaí believed that the applicant lived there and

that they would find stolen property there for that reason.

13. The Court concludes, therefore, that the flat was indeed the “dwelling” of the applicant. Hence, it followed from the invalidity of the search warrant that

the search was not carried out “in accordance with law” and that there was an infringement of the inviolability of the dwelling within the meaning of Article 40,

section 5 of the Constitution. Such an infringement, in view of the absolute exclusionary rule laid down in Kenny’s case, required that the evidence obtained

be excluded. The learned trial judge had no discretion to admit it, regardless of the fact that any breach of constitutional rights was unintentional. It is

accepted that, in that event, the conviction of the applicant on the first count cannot be justified. The Court treats the application for leave to appeal as the

hearing of the appeal. It allows the appeal in respect of the first count and quashes the conviction.