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Judgment Title: Director of Public Prosecutions -v- Jakubowski
Neutral Citation:  IECCA 28
Court of Criminal Appeal Record Number: 156/11
Date of Delivery: 31/07/2014
Court: Court of Criminal Appeal
Composition of Court: O'Donnell J., Moriarty J., Herbert J.
Judgment by: O'Donnell J.
Status of Judgment: Approved
Notes on Memo: Dismiss appeal against conviction
THE COURT OF CRIMINAL APPEAL
CCA No. 156/11
The People at the Suit of the Director of Public Prosecutions
Judgment of the Court delivered on the 31st of July 2014, by O’Donnell J.
1. On the 9th of March 2011 a young woman had occasion to use a public bathroom in a rural town. When she was drying her hands she was assaulted from behind by a male assailant. She was subjected to a horrifying ordeal in which she was viciously attacked in a cubicle in the public toilet, held against her will for approximately 40 minutes, threatened repeatedly and subjected to rape, vaginal, oral and anal. She pleaded with her assailant to release her, and that she needed to collect her daughter from school. Her assailant refused and threatened to kill her. The victim noticed unusual aspects of her assailant. He was wearing a peach coloured slip that protruded from underneath his outer clothes and an aqua blue coloured thong. She also noticed an unopened packet of Marie Claire women’s tights that were visible and tucked into the waistband of the thong which remained in place throughout the attack. During the attack an unopened beer can fell out of the assailant’s pocket and the assailant retrieved it and put it back in his pocket. The victim also noticed that her attacker was wearing a number of items on his wrist, including a beaded bracelet, a watch and a gold bracelet.
2. When the attack came to an end the assailant told the victim to wait for 5 minutes and fled the scene. Once freed, the victim was noticed to be in a dishevelled and distressed state by a passer by who notified the gardaí. An investigation was commenced with commendable speed. The scene of the crime was examined and an empty beer can of the same brand as the can dropped and retrieved by the assailant was recovered. The packaging for a pair of tights was also found. CCTV footage was obtained from a local shop in which a man was observed purchasing a can of lager and a packet of tights. This individual was identified as the appellant and his address was ascertained. A Garda Sergeant sought and obtained a search warrant for that premises under s.10(1) of the Criminal Justice (Miscellaneous Provisions) Act 1997, as substituted by s.6(1)(a) of the Criminal Justice Act 2006 (“the 1997 Act” and “the 2006 Act” respectively).
3. With omissions of details which might affect the anonymity to which the victim is entitled, the operative part of that warrant read as follows:
Whereas I am satisfied as a result of the hearing evidence on oath of Sergeant [ ] a member of the Garda Síochána not below the rank of Sergeant that there are reasonable grounds for suspecting that evidence of or relating to the commission of an offence referred to in subsection (1) of Section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 as substituted by section 6 of the Criminal Justice Act 2006, to which clothing, namely a black hat, black trousers, black jacket with hoddie, black runners, a watch, a gold bracelet, a pair of ladies tights, bracelet to be found in a place namely Apartment A namely [ ] I HEREBY AUTHORISE Sergeant [ ] of [ ] accompanied by any other members of the Garda Síochána to ENTER within one week of the date hereof (and if necessary by the use of reasonable force) to place situate at [ ] in the said Court District, TO SEARCH the place and any persons found therein and TO SEIZE ANYTHING found at that place OR ANYTHING FOUND in possession of any person present at that place at the time of the search, which the said member reasonably believes to be evidence of or relating to the commission of the offences aforesaid.”
The basis for such grounds is that on the 9/3/10 at 2.10 pm at the public toilets at [ ] [ ] was grabbed by a lone male who subsequently raped her. The attack continued for a period of approximately 20 minutes, during which she was orally, anally and vaginally raped, and her attacker threatened to kill her. Gardaí attended at the scene minutes after this attack occurred and [ ] described her attacker as 20/30 years old, unshaven, Polish/Lithuanian accent, wearing a black hat, black trousers, black jacket with hoddie, black runners, wearing a watch which had damage to the face, a gold bracelet and a rosary bead type bracelet. She outlined that he was in possession of ladies tights which were in packaging during the attack. There was a can of beer in his coat. The description of this male was circulated. A male who fitted the description given by the injured party entered [ ] at 12.20pm on the 9/3/10 and obtained woman’s tights and a can “Premium Dutch” lager. The scene of this crime was immediately preserved and during the forensic examination an empty can of “Premium Dutch” lager and the packaging of “Marie Claire” tights were located at the scene. It is established that Marie Claire tights are available in the area where the suspect was seen obtaining same. This man has been identified as Przemyslaw Jakubowski [ ]. We believe that evidence in relation to the commission of this crime is located at [ ] and I hereby apply for a warrant to search the said place and any persons found at the said place pursuant to the provisions of section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997, as substituted by section 6 of the Criminal Justice Act 2006.”
6. The central, and now only, issue in this case concerns the validity of the search warrant issued on the 9th of March 2011. It is accepted for the purposes of this argument that if the warrant is invalid then the search of the appellant’s home was a breach of the inviolability of the dwelling home protected by Article 40.5 of the Constitution since such search would not have been authorised by law. Furthermore, it is also accepted that in light of the decision of the Supreme Court in The People (Director of Public Prosecutions) v. Kenny  2 I.R. 110 (“D.P.P. v. Kenny”), since the search was carried out intentionally, it must be considered to be a deliberate and conscious breach of the constitutional rights of the citizen, and that there were no extraordinary excusing circumstances which would otherwise justify the admission of evidence obtained as a result of such a breach. Accordingly, it is argued that if the warrant was invalid, then any evidence obtained pursuant to the warrant should be excluded, and it followed that this appeal must be allowed. While it might be argued that some evidence against the appellant was obtained independent of the search warrant, it is not possible to argue that such evidence must necessarily have led to the same outcome. Accordingly, if the appellant is successful in establishing the invalidity of the warrant, and the inadmissibility of any consequent evidence, it would at a minimum be necessary to allow the appeal and direct a retrial. For present purposes it is useful to ignore the question of the effect of other evidence and to address this question on the assumption that all of the evidence connecting the appellant to the crime is derived from the search warrant, and accordingly dependent on its validity.
7. The argument that the warrant is invalid and the search unauthorised is put in a number of different ways. However, all arguments rely on the words in the warrant “whereas I am satisfied as a result of hearing evidence on oath of Sergeant O’Brien” (emphasis added). That phrase was the subject of precise and detailed argument as to the effect of a sequence of statutory provisions which it is now necessary to consider.
8. The terms of s.10(1) of the 1997 Act as originally enacted provide as follows:
9. In addition to the foregoing, District Court Rules have been made regulating applications for the grant of search warrants including those pursuant to the 1997 Act as substituted by the 2006 Act. Order 34 Rule 17 of the District Court (Search Warrant) Rules 2008 was introduced by Statutory Instrument 322/2008. That rule states:
10. It is apparent therefore that the warrant here did not conform to the form prescribed by the District Court Rules. It appears that the warrant, at least in this respect used the language of the 1997 Act prior to its substitution. The complex question which arises on this appeal is what is the consequence of this, both for the validity of the warrant, and the subsequent admission of the evidence on foot of that warrant.
11. The appellant argues that term “information on oath” used in the Act means a written information, and indeed this is confirmed by the provisions of the District Court Rules. Assuming for one moment that this is so, it is necessary to observe that as a matter of fact such an information was provided in this case. Sergeant O’Brien gave evidence that she provided a sworn written information and a copy was provided. No one suggests that the material in that information was insufficient to justify the grant of the warrant. However, the appellant argues that what is in issue here is not what was done to obtain the warrant but the form of the warrant once issued. Relying on the decision of the Supreme Court in Simple Imports Ltd v. Revenue Commissioners & Ors  2 I.R. 243 (“Simple Imports”), it is argued that the warrant must show jurisdiction on its face. Therefore, if a written information is a statutory requirement or precondition of validity of a warrant, and if the warrant is to be understood as recording that only oral evidence was given, then it is argued that it is invalid even if a written information was in fact provided.
12. It is apparent that this is an argument of some narrowness. It is not suggested that the gardaí were guilty of any default, negligence, or worse, or that the District judge exceeded his jurisdiction or acted improperly in any way. The argument is entirely dependent on the decision of the Supreme Court in D.P.P. v. Kenny that if the act of entry was intentional (as every entry on foot of a warrant is), then such act was a deliberate and conscious one, and if it should transpire that the warrant is invalid, then the entry was one effected in deliberate and conscious breach of the constitutional rights of the individual concerned. The matter was addressed in careful and comprehensive submissions by Mr Michael O’Higgins S.C. and Eoghan Cole B.L., on behalf of the appellant, and in exemplary written submissions of Ms Úna Ní Raifeartaigh, S.C., and Ms Cathleen Noctor, B.L., on behalf of the respondent, and further amplified by oral submissions by Mr Conor Devally S.C. and by Ms Mary Rose Gearty, S.C., who appeared on behalf of the appellant and respondent respectively at the hearing of this appeal.
13. Counsel on behalf of the appellant makes two closely related arguments. First, it was argued that the change effected in 2006 means that a written information is required. The warrant does not demonstrate that any such written information was provided. Accordingly, it is said it is invalid on that ground alone. The second argument was that even if a written information was not required by statute, it was undoubtedly required by the District Court Rules, and the form prescribed by those rules, and accordingly, the warrant, is invalid on this separate ground. A linking argument was also advanced which was that the form of the District Court Rules shed some light on the manner in which the 2006 Act is to be understood, since the rules reflect what was argued to be the shared understanding at the time that the phrase “information on oath” meant and comprehended a written information.
14. The narrow but extremely important point in this case is largely dependent on the decision of the majority of a three person Supreme Court in Simple Imports. In that case warrants were issued and executed under customs legislation in relation to pornographic material in various locations in this State. Unusually the question of the validity of the warrant did not arise in the context of a challenge to the admissibility of evidence in a trial, whether civil or more normally, criminal. It was not clear that the seizures would be used for evidence in any criminal prosecution. It may have been that the purpose was simply to confiscate the material. In any event, the company occupying the premises from which the material was seized brought an application for judicial review seeking the return of the material. It seems to be have been accepted for the purposes of the case that everything depended upon the validity of the search warrant. Evidence was given that informations were sworn before judges of the District Court, that the judges asked questions and obtained further evidence on oath, and the warrants were issued. However, under the relevant provisions of the legislation (s.205 of the Customs Law Consolidation Act 1876 and s.5(1) of the Customs and Excise (Miscellaneous Provisions) Act 1988) it was necessary in each case for the District Court Judge himself or herself to be satisfied that there was a “reasonable ground for suspecting” that any goods or documents were concealed on the premises. The relevant warrants recited that it appeared to the District Judge by information on oath that the relevant officer had cause to suspect that certain goods were concealed on the premises. In other words the warrant did not state that the relevant District Judge was himself or herself satisfied that there was cause to suspect that such goods were on the premises. On the contrary, it stated that it appeared to the District Judge that the officer had cause to suspect that items were on the relevant premises.
15. In understanding that case, it is important to note that evidence was given to a High Court on affidavit from which it was apparent that there had been a full inquiry by the relevant District Judges into the information suggesting that such goods were on the premises. Keane J., for the majority, was satisfied that there was before the District Judges in each case sufficient evidence in the form of information on oath, accompanied in one case by oral evidence, on which they would have been entitled to reach the conclusion that uncustomed or prohibited goods, and books and documents relating to them, were kept on the specified premises. Nevertheless, he rejected the submission by the respondents that any invalidity in the warrant could be cured by evidence that there was in fact before the District Judge evidence which entitled him to issue the warrant in the terms of the statute. He said “[g]iven the necessarily draconian nature of the powers conferred by the statute, a warrant cannot be regarded as valid which carries on its face a statement that it has been issued on the basis which is not authorised by statute” (p. 255). The decision of the majority therefore was that if a warrant showed on its face that a statutory precondition for the exercise of the jurisdiction was not satisfied, it was invalid. In a thoughtful dissenting judgment Barron J. concluded that the District Court Judges had jurisdiction to issue the warrant, were acting within jurisdiction when they did so, and that the defect complained of might have rendered the warrant ineffective to secure entry had such entry been resisted but did not render the warrant invalid. In other words the question of whether evidence obtained on foot of a warrant was admissible was distinct from the question whether entry could have been refused. He cited with approval a portion of the judgment of the Privy Council given by Lord Hoffman in Attorney General of Jamaica v. Williams  AC 351 at 364 where it was said:
17. The appellant here says quite simply that the warrant in this case states that it has been issued having received ‘evidence on oath’. The warrant does not state, as the 2006 Act requires, that the District Court Judge received information on oath. Arguing that information on oath comprehends a written document, the appellant contends that the warrant, in using the phrase “evidence on oath”, either shows that no such written information was received, or at a minimum does not demonstrate that it was.
18. The first question is what is meant by s.6 of the Criminal Justice Act 2006 when it refers to “information on oath”. “Information” in its ordinary sense simply means some material, knowledge or news which is communicated. In its ordinary English meaning, information may be conveyed in a number of ways, orally, in writing, electronically or possibly by gesture. But the appellant argues that the word in the phrase “information on oath” carries a special meaning in law and refers only to a written document. The appellant puts this argument in two ways. First, it is said that the change between 1997 and 2006 from “evidence on oath” to “information on oath” was a conscious tightening of the former requirements by imposing a statutory requirement that the material upon which a search warrant was issued should be set out in a permanent form which would be available should there be any subsequent dispute as to the basis upon which the warrant was issued. Second, it is argued that “information on oath” is a term of art having a well established meaning in law. In this regard the appellant cites O’Connor’s The Irish Justice of the Peace (E. Ponsby Ltd; Dublin; 1915; 2nd edition) at page 128 which states “in common language the word ‘information’ is used to designate a complaint in writing”.
19. There is undoubtedly some force to this argument. However, the Court is persuaded by and accepts the arguments advanced on behalf of the respondent in this regard. Whatever the logic and good sense of providing that material upon which a warrant is based should be recorded in permanent form, it seems unlikely that the 2006 Act in general, or s.6 in particular, was intended to make more restrictive the requirements for obtaining a valid warrant. In general that legislation was a comprehensive attempt to close perceived gaps in the legislative scheme and make easier the detection and prosecution of crime. Even within the provisions of s.6 of the 2006 Act, this development is detectable. The 1997 Act required that a warrant could be issued in respect of a limited and identified number of offences on the evidence of a member of An Garda Síochána not below the rank of inspector, and authorise a named member accompanied by any other member to enter any place set out in the warrant, which was defined as “including a dwelling”. The 2006 Act permits the issue of a warrant in respect of any arrestable offence, on the evidence of a member not below the rank of a sergeant, and permits any member “accompanied by such other members or persons or both as the member thinks necessary” to enter any place which is defined as a physical location including a dwelling, residence, building or abode or vehicle, whether mechanically propelled or not, a vessel, whether sea-going or not, an aircraft, whether capable of operation or not, and a hovercraft”.
20. It seems more plausible therefore, as argued on behalf of the respondent, that the purpose of using the term “information” rather than “evidence” was in fact to broaden the material upon which a warrant could be issued, or at least to avoid any restrictive argument that only admissible evidence could ground the issuance of a warrant. In O’Malley’s Criminal Process (Dublin; Round Hall; 2009) it is observed that “[t]here had been some uncertainty as to whether the former requirement that evidence be heard was satisfied by the tendering of sworn information [citing McNulty v. Director of Public Prosecutions  IEHC 74] and that undoubtedly motivated the amendment” (para. 11.22). Accordingly, it does not appear that there is anything in the structure or terms of the Act to suggest that information was intended only to mean a written document.
21. It may be the case today, as in 1915, that among criminal practitioners the words “information on oath” are commonly understood as referring to a written document, but there is no plausible basis for the contention that it has that meaning exclusively. This might be deduced even from the passage in O’Connor cited by the appellant which described the words as being “commonly” understood to mean information in writing, which clearly leaves open the possibility of another less common interpretation. Indeed, the previous page of O’Connor The Irish Justice of the Peace makes it clear that an information may be oral or in writing. It states “an ‘information’ whether oral or in writing, is the initiatory step in proceedings of a criminal nature which are to be disposed of summarily, whilst the term ‘complaint’ designates the initiatory step in summary proceedings of a civil nature”. Obviously, the precise distinction between information and complaint has been lost, but it remains the case that as a matter of history an information could be oral or in writing. There is no basis for suggesting that in the intervening time it has developed a more exclusive and narrow reading. Furthermore, as the respondent points out, the text in O’Connor just cited is consistent with a careful reading of the case law relied on by the appellant. Thus, in Stroud’s Judicial Dictionary of Words and Phrases (Greenberg; Sweet and Maxwell 2013 8th Ed.), it is stated:
23. While some of the decisions of this court (see The People (Director of Public Prosecutions) v. Gareth Mallon  IECCA 29, and The People (Director of Public Prosecutions) v. Edgeworth  2 IR 131) refer to a warrant as failing to show jurisdiction on its face, it is important that the majority judgment in Simple Imports was based upon the finding that the warrant in that case showed “on its face a statement that it has been issued on the basis which is not authorised by statute” (p. 255). In other words Simple Imports was treated as a case in which the warrant positively demonstrated non-compliance rather than a failure decisively to demonstrate compliance. This may be an important distinction at least in theory because it was the basis upon which the majority and minority in the House of Lords divided in the Rossminster case. R v. Inland Revenue Commissioners Ex parte Rossminster Ltd  AC 952. It may even be in many cases that there is no significant distinction in practice between the two, but since this is a narrow and technical area, but with very significant consequences, it is important to be precise about what is required by the decision of the majority in Simple Imports. On the appellant’s argument, evidence on oath is a broader term than information on oath. Thus a statement that a court has received evidence on oath does not demonstrate non-compliance with a supposed obligation to receive that evidence in the form of a sworn written information. If the warrant does not demonstrate compliance but does not show non-compliance it may be argued that it is appropriate to proceed on the basis that the majority in Rossminster did, that it is to be presumed that the statutory preconditions were complied with, at least until the contrary is shown, or alternatively to consider whether, on the evidence, the court properly exercised its jurisdiction by receiving a written information on oath (all the time assuming for the purposes of this aspect of the argument that that is what the statute required). However, for the reasons set out above, it is not necessary to resolve that matter.
24. It is necessary now to turn to the appellant’s contention that the evidence ought to have been excluded because the warrant did not comply either with the terms of the relevant District Court (Search Warrant) Rules 2008 or indeed with the form prescribed for such warrants by those rules. It is clear that the warrant in this case does not accord with the District Court Rules or the form prescribed in those rules. This is undeniable. Order 34 Rule 17 of those rules as inserted by S.I. 322/2008 (District Court (Search warrants) Rules 2008) provides that, in relation to an application under s. 10(1) of the Criminal Justice (Miscellaneous Provisions) Act 1997 as substituted by s. 6(1)(a) of the Criminal Justice Act 2006, “[s]uch application shall be by the information on oath and in writing of such member in the Form 34.37, Schedule B. A warrant issued on foot of such information shall be in the Form 34.38, Schedule B” (emphases added). The format of the warrant set out in form 34.38 provides “WHEREAS from the information on oath and in writing under section 10(1) of the above mentioned Act of 1997 (as substituted by section 6(1)(a) of the Criminal Justice Act 2006) sworn before me on this day, …” (emphasis added). The question for this Court is what is the consequence of the clear and admitted deviation from the format prescribed by the rules?
25. The appellant puts his argument in two ways. First, it is argued that the provisions of the rules are jurisdictional requirements. The warrant is required to show jurisdiction on its face which in this case would mean that the warrant should record that the information provided was in writing. Second, it is argued that even if the requirements of the rules cannot be considered jurisdictional, they are still requirements made by the law and accordingly an entry on to premises pursuant to a warrant which is not in the form required by the rules is not an entry in accordance with law. Thus, it is said that any search was a breach of the constitutional rights of the accused in this case, and any evidence obtained should be excluded since it is not suggested that there are any extraordinary or excusing circumstances justifying such breach.
26. The Rules of the District Court are made pursuant to ss. 90 and 91 of the Courts of Justice Act 1924 (as adapted and amended) (“the 1924 Act”). Section 91 of that Act makes clear that such rules are for a number of matters including “the practice and procedure of the District Court generally”. The respondent argues, relying in this regard on The State (O’Flaherty) v. O’Floinn  I.R. 295, that unless a rule is limited to matters of practice and procedure it would be ultra vires. It follows that insomuch as the rules of the District Court are to be read as imposing a requirement for an information in writing, such a rule must necessarily be only a matter of practice and procedure or otherwise be ultra vires. If a matter of practice and procedure, it is argued, the rules cannot be matters going to jurisdiction. On this analysis, which the Court accepts, the jurisdiction to issue a search warrant is established by primary legislation (in this case s.10 of the 1997 Act as amended) which also sets the limits of such jurisdiction. Thus the legislation prescribes what the Court may do. Rules of procedure only prescribe how that jurisdiction is exercised. These are perhaps not mutually exclusive categories in every case, but it is not necessary here to make any more generalised determination. It is sufficient for the present purposes to conclude that the relevant rules of the District Court, insomuch as they include a requirement of an information in writing, do not establish any jurisdictional provision compliance which is required to be demonstrated on the face of any warrant, or in respect of which a valid warrant may not demonstrate non-compliance.
27. It remains to consider however whether the entry to the dwelling house in this case was otherwise than in accordance with law, and therefore in breach of the rights of the individual. The question here becomes the question of the validity of the warrant. If entry to the premises was obtained on foot of a valid warrant, then such entry was in accordance with law and there could be no question of the breach of the constitutional guarantee of the inviolability of that home. The question thus becomes whether the apparent failure to comply with the mandatory terms of rules regulating practice and procedure deprives the warrant of validity. If the provisions of the District Court Rules stood alone, there might be an interesting jurisprudential question as to the impact of the failure to comply with the format of such rules. However, Order 12 Rule 23 of the District Court Rules 1997 provides: