The Judgment: The Circuit Criminal Court. South-Western Circuit. County of Kerry Director of Public Prosecutions v Brian Curtin Judgment of the Court, delivered the 23rd April, 2004.
In this case, the accused, Brian Curtin, is charged with the offence of knowingly having in his possession child pornography at his home in Tralee on 27th May, 2002.
In this trial, immediately after the opening address by prosecuting counsel, an application was made for the hearing of a voir dire. A voir dire is a hearing to decide on the law and/or to determine what evidence can or cannot go before a jury. Obviously, a voir dire has to be conducted in the absence of the jury.
The purpose of the voir dire in the present case was to put the prosecution on proof as to the validity of a search warrant and to decide on the admissibility of evidence resulting therefrom, that is to say, evidence of the search itself and evidence of anything obtained in the search.
For this purpose the prosecution called Detective Inspector Thomas Dixon in the voir dire. Inspector Dixon gave evidence that the President of the District Court, his Honour Judge Peter Smithwick, issued a search warrant at 3.20 on the afternoon of 20th May, 2002, and that pursuant to this warrant, he, Inspector Dixon, with other members of the Garda Síochána searched the home of the accused at 2.20 on the afternoon of 27th May, 2002.
It is contended by Mr McEntee, appearing for the accused, that at the time of its execution, this warrant was spent, being beyond the seven days therein authorised, and that having regard to the stated law and, in particular, the decision of the Supreme Court in The People (DPP) v. Mark Kenny (1990) 2 I.R. 110, the search was conducted in breach of the constitutional rights of the accused and, accordingly, the search and the fruits of the search are inadmissible as evidence in this trial.
The relevant statutory provision as to the duration of such a warrant is s.7(2) of the Child Trafficking and Pornography Act 1998, which enacted:
"A warrant issued under this section shall authorise a named member of the Garda Síochána, alone or accompanied by such other members of the Garda Síochána and such other persons as may be necessary -
(a) to enter within 7 days from the date of the warrant, and if necessary by the use of reasonable force, the place named in the warrant . . . . . . . ."
The warrant which was issued by Judge Smithwick authorised Detective Inspector Thomas Dixon to enter the accused's home within seven days of the date thereof.
The relevant provision as to the statutory interpretation of time is contained in s.11(h) of the Interpretation Act 1937;
"(h) Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular time, that day shall, unless the contrary intention appears, be deemed to be included in such a period, and, where a period time is expressed to end on or be reckoned to a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such a period."
If the day on which the warrant was issued, that is 20th May, 2002, is included in the computation, then the search warrant was acted upon in its eighth day and had expired.
However, it is contended by the prosecution that it does not include the day of its issue because a contrary intention implicitly appears in the said s.7 of the Act of 1998 and the prosecution says this for the following reasons:
First, a contrast can be made between (a) this provision which enacts that the warrant authorises entry on to the premises within seven days "from the date of the warrant", and (b) other statutory provisions which authorise entry "at any time or times within one month of the date of issue of the warrant", which words appear at s.26(2) of the Misuse of Drugs Act 1977 and in s.5(2) of the Customs and Excise (Miscellaneous Provisions) Act 1988.
Secondly, the fact that under this Act an application for a search warrant is to be made to a District Court Judge only and not a Peace Commissioner, as was provided for in earlier enactments, creates a difference. An example of such a difference is that a District Court Judge is not as available as a Peace Commissioner and, therefore, more time is needed for the Garda Síochána to execute a warrant.
Thirdly, reliance is placed on a decision by Denham J. in the Supreme Court decision of DPP (Ivers) v. Murphy (1999) I.L.R.M. 46 and as referred to in the Report of the Law Commission on Statutory Drafting and Interpretation and as quoted from para.2.22 in the same report.
"Denham J. went on to state that the literal rule (of construction) should not apply if it produces an absurd result that thwarts the intention of the legislature. What is specially worthy of note in relation to this case is the fact that a purposive construction was adopted, even in a criminal case where this was to the detriment of the defendant."
In my view none of these arguments has any merit. In the first argument any
contrast in words used in the Misuse
of Drugs Act 1977 and the Customs and Excise Act 1988 is of no help to the prosecution.
The use therein of the words "at any time or times within one month of the date of issue of the warrant" is referring to possible multiple entries, as compared to one entry in the search warrant in the present case. In any event the word "from" a particular date as appears in the Interpretation Act 1937 is the very word which appears in the Child Trafficking and Pornography Act 1998. The variation from the word "from" to the word "within one month of" appears in the other two Acts and not in the Act under consideration in this case.
As for the second argument, the fact that it is more difficult to have access to a District Court Judge as now required, as compared to access before to a Peace Commissioner, can have no bearing on the proper construction of these statutory provisions. As for the third argument, there is no question here of a literal rule being applied with the effect of producing an absurd result.
Ms Ring, for the prosecution, adds that, as appears from the judgment of the Court of Criminal Appeal delivered by Geoghegan J. in the People (DPP) v. Vincent McKenna 2002 1 I.R. 347, this point was canvassed in that case, but the appeal having been decided on an issue of fact in another matter, this question was not considered by the court.
There is no further submission made on the prosecution's behalf. The word "day" is not defined in the Interpretation Act 1937. If a day is reckoned as a succession of twenty-four hours, rather than a period which begins and ends at midnight, then the warrant was executed in time at 2.20 p.m., seven days after its issue at 3.20 p.m., seven days earlier. In support of this, reliance is placed on the fourth edition of Halsbury Laws of England Vol.45 (on time) at para.1113.
"1113. Day and night. The term "day" is, like the terms "year" and "month", used in more senses than one. A day is strictly the period of time which begins with one midnight and ends with the next. It may also denote any period of twenty-four hours, and again it may denote the period of time between sunrise and sunset."
Quoting this passage, the prosecution asks me to calculate the time here as seven successive periods of twenty-four hours.
Counsel for the prosecution opened no authority to support this proposition and she agreed with me that we do not know of any other similar method to measure time to assess when something is to be done. For example, the time of an accident is not taken into account when assessing the expiry of a period of limitation in a personal injuries case, but rather regard is had to the midnight of the day immediately before the particular anniversary.
In addition, no time is included in this search warrant, which would be absolutely essential if it contemplated days of successive periods of twenty-four hours in order that everyone would know precisely when a particular warrant expired.
With regard to the said definitions quoted from Halsbury, any one meaning of the word "day" depends on the context in which it is read. It is instructive that the said definition says that "day" strictly means the period of time which begins with one midnight and ends with the next, although it may denote other meanings.
In my view, this submission by the prosecution has no merit either.
There is no doubt that on a proper interpretation of s.7 of the Child Trafficking and Pornography Act 1998, having regard to s.11(h) of the Interpretation Act 1937, in the present day, the day on which the search warrant was issued has to be included in the reckoning and since the warrant was issued on 20th May, 2002, it expired on midnight of the day ending on 26th May, 2002. Accordingly, it was spent when the Garda Síochána purported to rely on it in their search of the accused's home on 27th May, 2002.
This leads to a second consideration, which is: what is the consequence of the search warrant being spent at the relevant time?
Counsel for the prosecution and the defence agree that the law on the point is to be found in the said case of The People (DPP) v. Mark Kenny (1990) 2.I.R. 110 in which case the Supreme Court held that evidence obtained as a result of a deliberate and conscious violation of the constitutional rights of a citizen must be excluded unless the court is satisfied that there were extraordinary excusing circumstances which justified the admission of the evidence or that the act constituting the breach of constitutional rights was committed unintentionally or accidentally.
There appears to have been a difference between some of the five members of the Supreme Court in that, the Kenny case. A minority of two judges were of the opinion that a member of the Garda Síochána must be aware that his or her actions are illegal or unconstitutional before these actions can amount to a conscious and deliberate violation of the accused's constitutional rights. However, the majority of three judges held that the reference to unintentional or accidental acts meant that the acts themselves must be unintentional or accidental and the words do not refer to the state of mind of the gardaí involved.
The debate between the two sides of that Court is illustrative and I can do no better in setting out that debate than by quoting from the judgment of Finlay C.J., who gave the majority judgment in the case. I quote from the end of his judgment, beginning at p.133 in the report.
"To exclude only evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from acting in a manner which he knows is unconstitutional or from acting in a manner reckless as to whether his conduct is or is not unconstitutional.
"To apply, on the other hand, the absolute protection rule of exclusion whilst providing also the negative deterrent, incorporates as well a positive encouragement to those in authority over the crime prevention and detection services of the State to consider in detail the personal rights of the citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights.
"It seems to me to be an inescapable conclusion that a principle of exclusion which contains both negative and positive force is likely to protect constitutional rights in more instances that is a principle with negative consequences only.
"The exclusion of evidence on the basis that it results from unconstitutional conduct, like every other exclusionary rule, suffers from the marked disadvantage that it constitutes a potential limitation of the capacity of the courts to arrive at the truth and so most effectively to administer justice.
"I appreciate the anomalies which may occur by reason of the application of the absolute protection rule to criminal cases.
"The detection of crime and the conviction of guilty persons, no matter how important they may be in relation to the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional obligation 'as far as practicable to defend and vindicate the personal rights of the citizen'.
"After very careful consideration I conclude that I must differ from the view of the majority of this Court expressed in the judgment of Griffith J. in The People v. Shaw (1982) I.R.1. I am satisfied that the correct principle is that evidence obtained by invasion of 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.
"In the instant case there cannot be any question but that the acts of the gardaí which obtained the warrant by the submission to the peace commissioner of the sworn written information in the form in which I have recited it, and which then forcibly entered the dwellinghouse were neither unintentional nor accidental, and counsel for the respondent agrees that there are no extraordinary excusing circumstances in this case. Even though, then, I would accept that neither of the two gardaí concerned had any knowledge that they were invading the constitutional rights of the accused and would also accept that they were carrying out the process of obtaining and executing a search warrant in a manner which has been customary over a long period with the gardaí, I am satisfied that the evidence obtained as a result of the forcible entry into the house should not have been admitted at the trial of the accused and that, accordingly, the conviction of the accused should not have occurred.
"I would, therefore, allow this appeal, and I would quash the conviction entered against the accused."
The prosecution accepts that this judgment in the Kenny case accurately reflects the law as it now is. Ms Ring makes a distinction on the facts between the Kenny case and the present case, by saying that in the Kenny case the warrant was invalid ab initio whereas in the present case the warrant was valid but became invalid later only by the efflux of time.
In my opinion that submission has no merit.
Returning to the quotation of Finlay C.J. in the Kenny case, I would like to allude to two matters arising from it:
First, I am not allowed to express any views on which side of the debate in that case I prefer. Regardless of my views, I must as a judge of the Circuit Court follow the law as laid down by the Supreme Court, the highest court in the State, and that means that I apply the law stated in the majority opinion as expressed by Finlay C.J.
Secondly, in the course of this judgment, Finlay C.J. said that he appreciated that anomalies might occur by reason of the application of the absolute protection rule as to criminal cases and the exclusion of evidence resulting from it. By this, I believe that the Chief Justice meant that while a deserving applicant could benefit from the absolute protection rule, an undeserving applicant might do so also and if an undeserving applicant did so benefit, that would be an anomaly which the system would have to tolerate.
I do not, as a matter of policy, read a Book of Evidence before a trial so that I may keep an open mind before the hearing begins. In keeping with that policy I have not read the Book of Evidence in the present case and I do not know whether or not the accused here is a deserving or an undeserving applicant, but in either case, he is entitled to have the law apply to him as it would apply to anyone else.
In applying the principles in the Kenny case, I have to come to the following conclusion. As in the Kenny case there was a violation of the accused's constitutional rights committed by acts by the Garda Síochána which were not unintentional or accidental. There is one similarity between the acts of the Gardaí Síochána in the Kenny case and the present case and that is in both cases the members of the Garda Síochána may not have known that they were necessarily infringing such constitutional rights.
As to the other leg by which evidence might be rendered admissible, it has been conceded by Ms Ring on behalf of the prosecution that there are no extraordinary excusing circumstances justifying the admission of the evidence in question.
Before concluding I would like to refer to the fact that the prosecution in bringing this case to trial must have known, or at least, ought to have known, that on any reasonable interpretation of the issues, any judge in any court would have excluded the relevant evidence. This has to be so, given the untenable and nonsensical submissions made on behalf of the prosecution.
In such circumstances, I think it unfair and unreasonable to impose on me the task of presiding at the trial of a colleague when the prosecution knew, or ought to have known, that I would have to arrive at this result.
Force of circumstances as the assigned judge in this Circuit in Co Kerry obliges me to preside at this trial. I said last Tuesday, on the first day of the trial, that I would preside "without fear or favour" and that is what I intended, and still intend, to do. My duties as a judge oblige me to give no favour to the accused.
At the same time, I cannot be expected to treat him more unfavourably than I would any other accused. For me to do so would be grotesque.
It is important to emphasise that, at all times, this accused has been treated exactly the same as any other accused appearing in this court and he, the accused, will continue to be so treated until this trial is concluded.
In conclusion, for the reasons which I have explained, I have no alternative but to find:
1. that, the particular warrant had expired at the time of the search,
2. that, the actions of the Garda Síochána at the material time were not unintentional or accidental, and
3. that, as conceded by the prosecution, there are no extraordinary excusing circumstances which would justify the admission of the evidence.
Accordingly, evidence of the search and of what was found in the search is inadmissible and cannot go before the jury.
I have decided this matter on the law as it was opened to me by counsel for the prosecution and counsel for the defence.
The law is crystal clear. The issue could not be simpler and it was wrong for the prosecution to bring this case to trial when they knew, or ought to have known, that this finding would be the inevitable result.