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Cite as:  IECCA 33
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Judgment Title: Director of Public Prosecutions -v- Lawel
Neutral Citation:  IECCA 33
Court of Criminal Appeal Record Number: 262PX/12
Date of Delivery: 29/10/2014
Court: Court of Criminal Appeal
Composition of Court: MacMenamin J., Moriarty J., Herbert J.
Judgment by: MacMenamin J.
Status of Judgment: Approved
Notes on Memo: Quash order of Circuit Court - matter to proceed to trial
COURT OF CRIMINAL APPEAL
[CCA No. 262PX/12]
IN THE MATTER OF AN APPEAL UNDER SECTION 4(E) OF THE CRIMINAL PROCEDURE ACT, 1967, AS AMENDED
THE DIRECTOR OF PUBLIC PROSECUTIONS
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:
(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.”
Return for Trial and the Indictment
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.
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  3 IR 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:
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)
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  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:
(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.”
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
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. …”
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?
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 …”
A. Yeah, that’s what he told me to do.
Q. So you wrote the name Tony Tuto knowing he didn’t exist?
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 …”
The Legality of the Seizure
Provisions of the 1983 Act
(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)
The 1993 Act
(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;”
Authorisation by the Minister
(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.
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
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:
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)
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)
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
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  1 I.R. 209).
Constitutional Right to Privacy
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  I.R. 587; Kearney v. Minister for Justice & Others  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  4 I.R. 501 and also in a further judgment of this Court delivered by Fennelly J. in DPP v. Glen Geasley,  IECCA 22, (Unreported, Court of Criminal Appeal, Fennelly J., 24th March, 2009).
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  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.