Court quashes summary dismissal order, directing trial to proceed after finding no constitutional right breach.

COURT OF CRIMINAL APPEAL

[CCA No. 262PX/12]

MacMenamin J.

Moriarty J.

Herbert J.

IN THE MATTER OF AN APPEAL UNDER SECTION 4(E) OF THE CRIMINAL PROCEDURE ACT, 1967, AS AMENDED

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

AND

IBRAHIM LAWEL

RESPONDENT

JUDGMENT of the Court of Criminal Appeal delivered the 29th day of October, 2014, by MacMenamin J.

1. Section 4E of the Criminal Procedure Act, 1967, as inserted by s.9 of the Criminal Justice Act, 1999 (as commenced on the 1st

October 2001 by S.I. No 193 of 2001) provides:

“(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. …

(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.”

2. This is an appeal by the Director against a determination of the Circuit Court judge sitting in Naas to dismiss a prosecution on a

summary dismissal motion brought under s.4E of the Criminal Procedure Act, 1967 as inserted by s.9 of the Criminal Justice Act, 1999.

Return for Trial and the Indictment

3. The respondent, Ibrahim Lawel, was returned for trial to Naas Circuit Criminal Court on the 20th December, 2011, in respect of

charges contrary to the Misuse of Drugs Acts, as amended by the Criminal Justice Act, 1999.

4. Count No. 1 on the indictment charged that the respondent on the 25th May, 2011 at 50 Marina Court, Athy, Co. Kildare, had in his

possession a controlled substance, namely, cocaine, for the purpose of selling or otherwise supplying it to another, in contravention

of the Misuse of Drugs Regulations, 1988 (made under sections 4 , 5 , 18 and 38 of the Misuse of Drugs Act, 1977, and section 5 of

the Misuse of Drugs Act, 1984 and the Misuse of Drugs Regulations 1993, made under sections 4 , 5 and 38 of the Misuse of Drugs

Act, 1977) and at the time while the said drugs were in his possession the market value of the controlled drugs amounted to €13,000

or more, contrary to s.15A (as inserted by s.4 of the Criminal Justice Act, 1999), and s.27 (as amended) of the Misuse of Drugs Act,

1977.

5. Count No. 2 charged that the respondent on the 25th May, 2011 at 50 Marina Court, Athy in County Kildare, had in his possession

a controlled drug, namely, cocaine, for the purpose of selling or supplying it to another in contravention of the Misuse of Drugs

Regulations 1988 and 1993, contrary to s.15 (as amended) and s.27 (as amended) of the Misuse of Drugs Act, 1977.

6. Count No. 3 charged that the respondent on the 25th May, 2011 at 50 Marina Court, Athy in County Kildare, had in his unlawful

possession a controlled drug, namely, cocaine, contrary to s.3 and s.27 (as amended) of the Misuse of Drugs Act, 1977.

7. When the matter was returned to Naas Circuit Criminal Court on the 21st February, 2012 it was adjourned to the 6th June, 2012,

when the defence indicated in court that it wished to have the matter listed for the purposes of a ruling under s.4E of the Criminal

Justice Act, 1999. The s.4E motion was listed for hearing on the 19th July, 2012, and the learned trial judge ruled that certain

evidence at issue was inadmissible and the respondent was discharged from the indictment.

8. Two issues arise for consideration. The first, (a) relates to the extent of the jurisdiction conferred on the Circuit Criminal Court by

virtue of s.4E of the Criminal Procedure Act, 1967 (as amended). The second issue, (b) is also a legal issue, but with a factual

backdrop; it is necessary to consider the basis upon which the judge, as a matter of law, directed that the respondent be discharged

when, as this Court points out later in its judgment, it would have been necessary to hear further evidence in order to ascertain

whether evidence as to the search, seizure and detention of a parcel should have been admitted.

The Circumstances

9. What follows is an outline of the material before the Circuit Court judge. The offences in question were alleged to have been

committed on the 25th May, 2011. It was alleged that the respondent took receipt of a parcel, by means of a controlled delivery, at

his home at 50 Marina Court, Athy, Co. Kildare. That package was addressed to a fictional person, namely, one “Tony Tuto, Honorary

Consul of the Republic of South Africa, of 50 Marina Court, Athy, Co. Kildare”. The package consisted of a green bag marked

“Diplomatic Mail”. It purported to have been sent by the South African Embassy in Caracas, Venezuela. It is said that the package

when subsequently analysed was found to contain €1.75 million worth of cocaine, a controlled drug.

10. The package first arrived at the FEDEX Depot at Dublin Airport on the 20th May, 2011. It is said that a Customs Officer, Deirdre

Furlong, examined it under s.77 of the Customs Consolidation Act, 1876. An x-ray procedure was carried out on the parcel, on foot of

which a probe was inserted into it and on retraction of which, the officer found white powder. The officer subjected this powder to a

field test. She was satisfied that what was contained in the parcel was cocaine. She therefore detained the package securely under

s.7 of the Customs & Excise (Miscellaneous Provisions) Act, 1988, and on the 24th May handed it to Detective Garda John Dunning

who, it is said, then initiated a controlled delivery to Marina Court.

11. This delivery to 50 Marina Court, Athy, Co. Kildare took place on the 25th May, 2011. The package was accepted by the

respondent. He signed for it in the name of “Tony Tuto”. He was observed leaving the premises a short time thereafter. Another man

was then said to have come to the premises, and immediately left with the package. This latter man was placed under surveillance.

The package was seized by gardai later that day at a location in Navan, Co. Meath. The respondent had also been placed under

surveillance, and was arrested later that day. Upon arrest he stated that he had been “signing for the package as a favour for a

friend”. This was noted, read back to him later at interview, and the respondent acknowledged the same by signing that note. At

interview at Finglas Garda Station the respondent confirmed that he lived at 50 Marina Court, Athy, Co. Kildare, and that he had

taken delivery of the package for a named friend stated to be a Saheed Ishola.

12. At the s.4E hearing before Naas Circuit Criminal Court on the 19th July, 2012 counsel on behalf of the respondent argued first,

that the interception was unlawful, that it breached the respondent’s constitutional rights, and that the detention and seizure of the

package was also unlawful. Counsel then argued that if the Court found in favour of Mr. Lawel on these points, then there was no

other evidence against him.

13. But the question which falls first for determination was whether, having regard to the entire circumstances of the case, it was

appropriate to deal with the matter within the parameters of s.4E of the 1967 Act, as amended, or at all?

14. Here one must look to what occurred at the Circuit Court hearing. The Court found that the interception, detention and seizure of

the drugs was unlawful, and that s.77 of the Customs Consolidation, 1876, under which the Customs Officer purported to examine the

package, applied to warehoused goods and not imported goods. The Court held that the detention of the package pursuant to s.7 of

the Customs & Excise (Miscellaneous Provisions) Act, 1988 was unlawful, and that the seizure of the goods under s.202 of the

Customs & Excise (Miscellaneous Provisions) Act, 1988 was unlawful. The trial judge then ruled that the respondent had proprietary

rights over the package. She held that the respondent was therefore entitled to invoke his constitutional rights of privacy. But should

these issues have been determined in the s.4E application?

15. There is Supreme Court authority on this first question. In Cruise v. Judge Frank O’Donnell [2008] 3 I.R. 230 Fennelly J., in

considering the range of the section addressed the question as to whether or not the provision limited the scope of issues to be

determined in such an application. Fennelly J. rejected the concept of a “broad jurisdiction” which was urged on the Supreme Court

by the appellant, namely, that there was no limit to the type of preliminary issue that could be determined on a s.4E application by

the court. He observed, at page 249 of the report:

“I prefer the view of the respondents. This does not necessarily mean that the jurisdiction exercised pursuant to s.4E is

identical with the former jurisdiction of the District Court to decline to send a person forward for trial. Some weight

should be attached to the fact that the decision is being made by the actual trial court and to the faculty for the

admission of evidence.

Nonetheless, it would require clear legislative wording to establish an entirely novel jurisdiction to determine, in advance

of trial, disputed issues of law or fact. The applicant's submissions would appear to open the door to determination, for

example, and probably most notably of contested admissibility of incriminating statements or disputes about lawfulness

of detention. It is notorious that trial courts may spend days or even weeks hearing evidence and cross-examination in

the absence of the jury touching on alleged confessions made in garda custody. … The parties have referred, in oral and

written submissions, to various reports and recommendations for the introduction of procedures such as "plea and

directions hearings". Such procedures have generally been introduced by statute in other common law countries. The

power to make binding preliminary rulings on admissibility would clearly require statutory intervention. What is clear,

however, is that no existing legislative authority exists for such procedures in this jurisdiction.” (emphasis added)

16. Hardiman J. dissented on the question, suggesting there should be a broader interpretation of the section. But Fennelly J. (with

whom the other members of the court agreed) rejected the proposition that s.4E provided for an independent, freestanding procedure

for the determination of preliminary issues. The court held, therefore, that there was a jurisdiction to dismiss, only where the

evidence advanced was plainly inadmissible, for example, where the only evidence was hearsay. Such jurisdiction should be exercised

only in the clearest of cases.

17. What is in issue in the instant case was, in a sense, the “lawfulness of a detention”, although in this case what was detained was

a consignment of cocaine. At the level of principle, however, the observations of Fennelly J. are as valid in the instant case as they

were in Cruise. A consideration of the terms of the section, taken as a whole, makes clear that what is intended in the procedure may

be availed of only when the point is very clear.

18. In People (DPP) v. Jagutis [2013] IECCA 4 Clarke J., speaking for this Court, held, on the basis of Cruise, that the question of

admissibility could only be considered on what it termed a s.4E “Summary Dismissal Motion” where two conditions were met, viz:

“(a) The case against the accused (at least on the charge or charges to which the summary dismissal motion relates) is

dependant on the admissibility of the evidence in question so that, if the evidence be excluded, there would be no

sufficient remaining case against the accused on the charge or charges in question; and

(b) the issues arising on the question of admissibility are, to adopt the language of Fennelly J., plain or clear, not

involving the resolution of contested issues of fact and capable of being dealt with on the Book of Evidence

supplemented only by explanatory oral evidence.”

19. As outlined earlier, the issue which arose for determination on this particular motion was whether the Customs Officer had acted

lawfully in examining the package in question and in detaining same pending a controlled delivery. But, as will be made clear later, it

would not necessarily follow that the fruits of an illegal search, as opposed to an unconstitutional search, ought necessarily to be

excluded. The questions which would arise as to an illegal search include: (i) what was the nature of the right (if any) asserted by

the respondent; and (ii) if there was an illegality in the search, whether or not the court should exercise a discretion as to whether to

admit evidence obtained as a result of this.

20. In this Court’s view an issue of this type is not appropriate to be dealt with under s.4E. If it were to be found that the detention

of a package was legally defective and the evidence obtained on foot of the same was illegally obtained, a trial court would

nonetheless have been required thereafter to consider a significant range of matters, and conduct a balancing exercise, before

making a determination on the issue of admissibility. This Court would adopt the statements of law to be found in Cruise by Fennelly

J., and of this Court in Jagutis. In the view of this Court, the matter sought to be determined in the s.4E application was not “plain or

clear”, and was not such that it could be dealt with only on the basis of a consideration of matters as disclosed in the Book of

Evidence supplemented by explanatory oral evidence. As will now be explained, what was before the court was not, in the true

sense, a “summary matter”.

The Interview Notes

21. Before the trial judge were the notes of an interview conducted with the respondent on the 26th May, 2011. The reference,

hereafter to ‘Shola’, is to the person said to have initiated the receipt of the package by the respondent. In the course of the

interview the appellant is said to have been asked:

“Q. Just to confirm if the package was to arrive at the house were you to give the name Tony Tuto.

A. Yeah

Q. So Shola said you were to give the name Tony Tuto. What next.

A. He said I should just write Tony Tuto on the paper and the man would give me the package. …”

22. Later the respondent was asked:

“Q. Who is Tony Tuto?

A. I don’t know Tony Tuto that’s just the name he gave me.

Q. Did you not ask him why he asked you to use the name Tony Tuto.

A. No because it might be his real name.

Q. Do you know if Tony Tuto exists?

A. No

Q. Did you not ask Shola why he didn’t get the package delivered to his own house?

A. Yeah, he said because the house is for his wife and he is trying to straighten things out with the immigration.

Q. What did Shola say about the package?

A. He told me it was a small box coming from Africa. I was surprised when the man who delivered it brought out a

trolley, I almost called that man back to say I was not Tony Tuto, but I just said I don’t have anything to do with

it …”

23. Later still, it is said, the following answers were given:

“Q. Yesterday in relation to when you accepted for the package, you signed for the package, did you sign the

name Tony Tuto?

A. Yeah, that’s what he told me to do.

Q. So you wrote the name Tony Tuto knowing he didn’t exist?

A. Yeah

Q. Do you not think that’s suspicious?

A. I don’t know how to explain this. He is a friend of mine. Yeah. I don’t know if I could tell him I don’t want to do

this, and secondly I know if it’s something that will get him into trouble, it is him who will go for it …”

24. In the light of this, and the surrounding material, it was necessary to consider the lawfulness of the powers of interception,

examination, detention and seizure of the package. Counsel on behalf of the respondent submits that the interception which was

carried out in this case, in fact, amounted to an offence under the Postal & Telecommunications Services Act, 1983 (the 1983 Act).

At the hearing before the Circuit Court it was submitted that it was for the prosecution to prove the lawfulness of the interception. In

truth, however, the main focus of this appeal was not as to whether the search was illegal, as will now be explained (in the view of

this Court it was); but rather, whether the evidence had been obtained in contravention of the respondent’s constitutional right of

privacy.

The Legality of the Seizure

Provisions of the 1983 Act

25. S.84 of the Act of 1983 has been repealed by the Communications Regulations (Postal Services) Act 2011 (No 21/2011), see

s.4(1) and schedule 1 part 1 of that legislation, enacted on the 2nd August 2011. Section 84 of the1983 Act, as it was at the time

these proceedings were initiated, provided as follows:

“(1) A person who -

(a) opens or attempts to open a postal packet addressed to another person or delays or detains any such postal

packet or does anything to prevent its due delivery or authorises, suffers or permits another person (who is not

the person to whom the postal packet is addressed) to do so, or

…

(d) tampers with any such postal packet,

without the agreement of the person to whom the postal packet is addressed shall be guilty of an offence.

(2) Subsection (1) shall not apply to any person who is acting –

(a) in virtue of any power conferred on the company by section 83, or

(b) in pursuance of a direction issued by the Minister under section 110, or

(c) under other lawful authority.

…

(3)(c) A person who contravenes any regulation under this subsection shall be guilty of an offence.” (emphasis added)

26. The question for determination here was whether the officer who carried out the detention had done so in pursuance of a

direction issued by the Minister or under other lawfully authority.

The 1993 Act

27. In the course of submissions in the Circuit Court counsel for the respondent drew the trial judge’s attention to the definitions

under s.1 of the Interception of Postal Packets & Telecommunications Messages (Regulations) Act, 1993 (the 1993 Act) as follows:

“interception” means -

(a) an act -

(i) that consists of the opening or attempted opening of a postal packet addressed to any person or the delaying

or detaining of any such postal packet or the doing of anything to prevent its due delivery or the authorising,

suffering or permitting of another person (who is not the person to whom the postal packet is addressed) to do

so, and

(ii) that, if done otherwise than in pursuance of a direction under section 110 of the Act of 1983, constitutes an

offence under section 84 of that Act,

“authorisation” means an authorisation by the Minister of an interception;”

(emphasis added)

Authorisation by the Minister

28. The judge was also referred to s.2 of the 1993 Act which, it was submitted, was the appropriate mechanism by which the State

could intercept either postal packages or telephone calls, which commences as follows:

“2(1) The Minister may give an authorisation, but only for the purpose of criminal investigation or in the interests of the

security of the State.

(2)(a) Subject to paragraph (b) of this subsection, an authorisation shall be given by warrant under the hand of the

Minister.

(b) If the Minister considers that the case is one of exceptional urgency, an authorisation may be given orally

(whether by telephone or otherwise) by the Minister and, if it is so given, it shall be confirmed, as soon as may be,

by warrant under the hand of the Minister.

…”

It is not in dispute that there was no such warrant, or oral authorisation, in this case.

29. Counsel for the appellant submitted to this Court that the actions of the Customs Officer in this case did not constitute any one

of the acts referred to at sub-paragraph (1)(a)(d) of section 84 of the 1983 Act, outlined earlier. This argument was not put forward

before the trial judge. In the view of the Court, it does not sit comfortably with the facts of the case insofar as they are disclosed in

the Book of Evidence.

30. Counsel contended that the actions of the Customs Officer in inserting the probe did not constitute any of the prohibited actions

at (a) to (d) of s.84(1). It was submitted that the package had not been “opened” or “tampered with”, and that there was no

evidence that, as a result of the examination conducted by the Customs Officer and the arranging of a controlled delivery, that the

delivery of the package had been “delayed” or “detained” (see the definition of ‘interception’ outlined above from s.1 of the 1993

Act).

31. This Court is unable to accept the appellant’s submission on this point. In the view of the Court, Customs Officer Furlong’s probing

of the package must amount to tampering in the natural or ordinary meaning of those words. The removal of the portion of the white

powder from the interior of the package by a probe does not alter the situation, even though the package was not, in the plain and

ordinary sense of the word, “opened”. The point is unsustainable.

The 1876 Act

32. It is now necessary to assess other submissions which were made before the trial judge. The trial judge was directed to the Book

of Evidence, and the powers upon which Customs Officer Furlong, who first intercepted the package, actually chose to rely. The

officer sought to invoke s.77 of the Customs Consolidation Act, 1876 (the 1876 Act). Parts of this are emphasised as they are

relevant to the consideration. Section 77 provides:

“Upon the entry and landing of any goods to be warehoused, or within such period as the Commissioners of Customs

shall direct with respect to the same or any of them, the proper officer of Customs shall take a particular account of

such goods at the quay or wharf at which they shall be so landed, or in the warehouse of the port of arrival, if they be

goods of which the account is permitted to be taken in the warehouse, or in the warehouse of any other port to which

they may be consigned and allowed to be removed by the authority of the Treasury or the Commissioners of Customs,

and shall cause to be marked on each package of which such account shall be taken the contents thereof, and shall

enter in a book prepared for that purpose, containing the name of the import ship and of the person in whose name

they are entered, the marks numbers and contents of each such package, the description of the goods, and the

warehouse or place in the warehouse in which the same shall be deposited, and when the same shall have been so

deposited with the authority of such officer he shall certify that the entry and warehousing of such goods is complete,

and such goods shall from that time be considered goods duly warehoused; and if any such goods shall be delivered,

withheld, or removed from the proper place of examination before the same shall have been examined and certified by

such officer, such goods shall be deemed to be goods not duly entered or warehoused, and shall be forfeited.” (emphasis

added)

33. At the hearing before the trial judge counsel on behalf of the respondent submitted that the Act of 1876 created a distinction

between goods to be “warehoused” as opposed to “imported goods”.

34. Counsel referred to s.39 of the Act of 1876 entitled “As to the Importation, Prohibition, Entry, Examination, Landing, and

Warehousing of Goods”. Counsel for the respondent submitted to the trial judge that the Act of 1876 created a distinction as

between the importation of goods and the warehousing of goods; importation being the immediate bringing in to the country of

goods; and warehousing being the bringing into the country of goods, but only to be warehoused. Counsel submitted that the

distinction created was significant as direct importation gave rise to duty, whereas the importation of warehoused goods would not

require the payment of duty unless and until the goods were removed from the warehouse, and imported into the country.

35. Counsel referred to the specific terms of s.39 of the 1876 Act, which, as amended, reads as follows:

“It shall be lawful to import into the United Kingdom any goods which are not by this or any law in force at the time of

importation thereof prohibited to be so imported, and to warehouse under the laws in force for the warehousing of

goods, except as herein-after provided, in warehouses duly approved for the warehousing of goods, without payment of

duty on the first entry thereof, any goods subject to duties of Customs the importation and warehousing whereof is not

prohibited by any law in force at the time of such importation: Provided always, that the duties on such goods as the

Commissioner of the Treasury may from time to time enumerate shall be paid on the first importation thereof, and such

goods shall not be warehoused either for home consumption or exportation.” (emphasis added)

36. Counsel for the respondent further submitted that the distinction between importation and warehousing of goods was further

emphasised by the distinction created between s.55 and s.56 of the 1876 Act which both dealt with direct importation of “dutiable

goods for home use”, on the one hand, and s.57 of the 1876 Act which deals with how duty would be assessed on goods that have

been ‘warehoused’. The relevant sections read as follows:

“As to the entry of dutiable goods for home use.

55. The importer of any goods liable to duties of Customs and intended to be delivered for home use on the landing

thereof from the importing ship, or his agent, shall before un-shipment thereof make perfect entry of such goods by

delivering to the collector or other proper officer an entry thereof in the form No. 2 in Schedule B. to this Act, and

containing the several particulars indicated in or required thereby, or in such other form and manner as the

Commissioners of Customs may direct.

56. The importer of any goods or his agent shall immediately upon the entry thereof by him for home use pay down any

duties which may be payable thereon to the collector or other proper officer appointed to receive the same; and the

entry when signed by such collector or officer, shall be the warrant for the landing and delivery of such goods, and shall

be transmitted to the proper officer of Customs for that purpose.” (emphasis added)

37. Section 57, on the other hand, provides

“As to the entry of goods intended to be warehoused without payment of duty on first entry thereof.

57. The importer of any goods intended to be warehoused without payment of duty on the first entry thereof, or

his agent, shall deliver to the collector or other officer authorised to receive the same a bill of entry in the form

No. 3 in Schedule B. to this Act, and containing the several particulars indicated in or required thereby, or in such

other form and manner as the Commissioners of Customs may direct; and such bill of entry, when signed by such

collector or officer, shall be transmitted to the proper officer of Customs, and be the warrant for the due

warehousing of such goods; and upon the entry of any warehoused goods for home consumption Form No. 2 may

be used, with the addition of the date of warehousing.” (emphasis added)

38. As indicated, the Customs Officer, Ms. Furlong, purported to rely on s.77 of the Customs Consolidation Act, 1876, cited earlier.

39. However, the power of inspection sought to be relied on derived from the phrase in s.77 quoted earlier “and shall cause to be

marked on each package of which such account shall be taken the contents thereof” (see emphasised words on s.77). That section

did not apply to the goods in the instant case, as it applied only to goods to be “warehoused”. There was no suggestion that the

package to be delivered to the respondent was ever to be “warehoused”.

The 1988 Act

40. Insofar as it is material, the Court refers now to s.7 of the Customs & Excise (Miscellaneous Provisions) Act, 1988. This section

allows a Customs & Excise Officer to detain goods which are being imported or exported. However, such detention may take place

only:

“until such examination, enquiries or investigations as may be deemed necessary by the said officer, or by another

officer of Customs & Excise, have been made for the purposes of determining to the satisfaction of either such officer

whether or not the goods were (as the case may be) imported … as aforesaid”.

42. The specific purpose for which the detention of goods is allowed, therefore, is to determine whether or not the goods were

imported in contravention of prohibition.

43. However, in the instant case, this power was only invoked after the completion of what is termed ‘an NIK test’ which confirmed

that the powder removed from the package was, in fact, cocaine. The package was detained pursuant to that power from the 20th

May, 2011 to the 24th May, 2011, when it was provided to Detective John Dunning of the Garda National Drug Unit.

44. This Court is of the view that the section is mandatory in its terms rather than directory, and that the goods “shall be seized” as

liable to forfeiture under the Customs Acts, or released, when the determination (as to whether goods were imported in contravention

of any prohibition or restriction thereon) was made. Thus, the period between the 20th May, 2011 when Ms. Furlong purported to

exercise her powers under s.7, and the 25th May, 2011, when she seized the package under s.202, was a period where, prima facie,

there was breach of s.202 of the Customs Consolidation Act, 1876, which permits the seizure of “things” made use of in the sending

of prohibited goods.

45. The key phrase in s.7 of the 1988 Act is “for the purpose” specified therein and referred to earlier. However, that purpose was

the determination of whether or not there was an importation in contravention of a prohibition. That point had already been

determined by the performance of the NIK test. The evidence was to the effect that this test took place prior to the invocation of

that power. It was not open to the appellant, therefore, to submit that s.7 of the Act allowed the detention of goods which were

imported in contravention of a prohibition. Such detention could only be for a specific purpose which was clearly set out in the

statute. Once the specific objective of the detention had been achieved, i.e. the determination that it was cocaine imported in

contravention of the Misuse of Drugs Acts, the seizure of the goods was, in the view of this Court, mandated. No other power under

the 1876 Act was opened which would render the seizure procedure legal.

46. A power to detain goods under s.7 of the Customs & Excise (Miscellaneous Provisions) Act, 1988 only arises where the officer of

Customs & Excise reasonably suspects that any goods were (a) imported (as opposed to being warehoused), or (b) are being, or

intended to be, exported.

47. Counsel for the Director argues that the Customs Officer in this case identified a lawful power under which she was entitled to

“take a particular account” of goods “upon the entry and landing of goods” and that, as the power provided for in s.77 of the 1876

Act provides for the inspection prior to the goods being warehoused, “the inspection took effect here”.

48. This Court is of the view that this argument does not address the point that the powers under s.77 of the Act only apply “upon

the entry and landing of any goods to be warehoused”. Therefore, that power did not apply to the package that the Customs Officer,

in fact, inspected. The package in question was a postal package that was being directly imported. It was not being, or intended to

be, warehoused. Thus, the Director’s argument that “no issue of warehousing in fact arises here” was only true insofar as there was

no question of the package in question ever being warehoused for the purpose of the 1876 Act. But because there was no such

intention and no actual warehousing, s.77 therefore did not afford the Customs Officer a power of inspection over it.

49. In the view of this Court, counsel for the respondent was correct in arguing before the trial judge that the appropriate power to

intercept the package was pursuant to s.2 of the Interception of Postal Packets & Telecommunications (Regulations) Act, 1993. This

would have required Ministerial authorisation. But this authorisation was absent in this case.

50. While alternative powers of inspection might have been available under s.70 of the 1876 Act (a power to “take samples of goods

for examination”), and an alternative power of seizure might have been available under s.177 of the 1876 Act (seizure of prohibited

goods liable to forfeiture), in fact, no alternative power of detention was alluded to, or relied on by the Customs Authorities, before

the trial judge.

51. The appellant’s rather generalised argument that “other powers” might have been relied on, must be looked at in the context of

what was actually argued before the trial judge.

52. Section 202 of the Customs Consolidation Act, 1876 empowers the customs to forfeit any “things made use of in the importation

landing removal or conveyance of any uncustomed prohibited restricted or other goods liable to forfeiture under the Customs Acts”.

No argument was made that the use of s.202 by the Customs Officer was the use of an invocation of a lawful power entitling the

officer to seize the drugs in question. Moreover, the appellant does not suggest that the trial judge erred in law in determining that

the power invoked by Ms. Furlong in seeking to seize the goods was not, in fact, conferred under s.202. In fact, the use of s.202 of

the 1876 Act was not defended by the appellant in his submissions to this Court, nor relied on.

53. Insofar as it might be argued that the Customs Officer was entitled to rely on “other powers” contained in the Acts, these have

not been set out or identified.

54. What is important is that the power which could, and should, have been relied on exists under the 1983 Act. This necessitated an

authorisation of the Minister. The fact that there may have been other powers which might, potentially, have been relied on is not a

matter upon which the appellant is now entitled to rely (see The People (DPP) v. Dermot Laide & Desmond Ryan [2005] 1 I.R. 209).

Constitutional Right to Privacy

55. We turn then to the final aspect of this appeal. It was, in fact, that which was most forcefully argued.

56. Counsel for the Director contends that even if the Court was to conclude that the postal package was not inspected, seized or

detained in accordance with law, that it does not automatically follow that such evidence should be excluded, as no constitutional

right of the respondent was affected.

57. Clearly, a person has a right to privacy over their own communications. It exists as an un-enumerated constitutional right under

Article 40.3 of the Constitution (Kennedy v. Ireland [1987] I.R. 587; Kearney v. Minister for Justice & Others [1986] I.R. 116).

However, the right to privacy is not an absolute right, but one which may be curtailed in the interest of the common good and/or the

security of the State. Clearly, such curtailment must be in accordance with law. Counsel for the Director argues that the lawful

curtailment of the right has been authorised by the Oireachtas under the 1983 Act and 1993 Act. There is no disagreement on this

point. In fact, counsel for the respondent argued before the trial judge that the procedures under the Acts of 1983 and 1993 were

the proper mechanisms for the interception of the package in the current circumstances.

58. The right to privacy in communications has been considered by this Court in two cases, The People (DPP) v. Dillon [2002] 4 I.R.

501 and also in a further judgment of this Court delivered by Fennelly J. in DPP v. Glen Geasley, [2009] IECCA 22, (Unreported, Court

of Criminal Appeal, Fennelly J., 24th March, 2009).

Jus Tertii

59. But this is not the point. What is at the centre of this appeal is the invasion of the “rights” of a non-existent person.

60. The package was addressed to “Tony Tuto, Honorary Consul of the Republic of South Africa”. That person did not exist. It is not

open to the respondent to assert a jus tertii right on the part of a non-existent person. This is a classical instance of a “conjuring up”

in Henchy J.’s memorable phrase in Cahill v. Sutton [1972] IR 269, of a right to which the respondent is not entitled. The

constitutional right of privacy inheres only in an individual, be that individual corporate or personal, who is cognisable by the courts. A

fictitious person does not come within that category. A fictitious person cannot assert or bestow a constitutional right. That fictitious

person’s right cannot be affected adversely.

61. The respondent was asked by Detective Garda John Dunning whether he was Tony Tuto. The respondent replied that he was. He

was further told by Detective Garda John Dunning that he had a delivery for him, and the respondent said “ok”. But the respondent

signed the name Tony Tuto in acceptance of the package. The Court does not accept that the respondent could be vested with any

form of proprietary right by reason of a total fiction. The fictitious addressee, Tony Tuto, could not have vested a right in the

respondent, or anyone else, simply because he did not exist. Neither the respondent nor anyone else could have acquired a primary or

a derivative proprietary right in these circumstances.

62. In Dillon this Court held that the status of an interception (in that case a telephone interception) was to be determined at the

time of its commencement, and could not change on the basis of what developed during the conversation intercepted. It is said in

submissions that an interception which is unlawful could not become lawful on the basis of what was heard during it. But this was not

the situation here. Not only was there no proprietary right, or right of privacy, but also the respondent seeks to assert a proprietary

right in the context of what was in the package, viz. cocaine. We do not accept that a form of proprietary right can be asserted in

defeasance of the public’s interest in the detection of crime. The possession of the property in question is, in itself, an offence. To

hold otherwise would be to make a nonsense of the law.

63. In the case currently before this Court, this is not a situation where a constitutional right arose. It follows therefore that it was

not a situation either where the evidence would be rendered inadmissible because it was a breach of the respondent’s constitutional

rights.

64. Insofar as the respondent received the package, according to the interview, he signed it in a fictitious name. It was a package

which was not even directed to the respondent, who was using a false name.

65. It follows from all this that in a situation where the learned Circuit Court judge had concluded there was simply an illegality, she

was bound to go on and consider whether, in the lawful exercise of her discretion, she ought to admit or exclude the fruits of such

illegality. Concluding there was a breach of constitutional rights was an error.

66. It was necessary to carry out a different balancing exercise based on illegality. This was not an exercise which could have been

carried out in a s.4E application. It required a balancing process such as could only be conducted at a trial. This Court would,

therefore, quash the order of the Circuit Court and direct that the matter should proceed to trial.