Court of Appeal: Man sentenced to five years for conspiracy to import and possession of cocaine loses appeal against conviction
A man who was sentenced to five years imprisonment for conspiracy to import and possession with intent to supply cocaine has lost an appeal against his conviction.
The man had argued that the search warrant for his flat in Dublin was invalid because it was almost identical to the original search warrant gardaí had obtained for his old flat in the same building.
Questioning why it would be necessary for the information in the application for the second warrant to be altered to any significant degree given the only altered feature was the move from one flat to another, Ms Justice Isobel Kennedy found the trial judge had not erred in finding the warrant to be valid and dismissed the appeal.
Mr John Theaddus and his co-accused conspired to import cocaine, in packages which were delivered to two hostels in Dublin. In January 2015, Mr Theaddus’ co-accused was arrested and found in possession of Mr Theaddus’ driver’s licence and receipts in Mr Theaddus’ name.
The gardaí obtained Mr Theaddus’ address, which was registered as being Flat 3, 190 South Circular Road, Dublin 8. Thereafter, Garda Wayne Carey applied for and was granted a search warrant for that address. When gardaí arrived, the owner of the property asserted that Mr Theaddus had recently moved from Flat 3 to Flat 8 due to renovations. Mr Theaddus was arrested, and gardaí applied to Dublin District Court for a search warrant for Flat 8. Having obtained a search warrant, gardaí executed the warrant and found a quantity of cocaine.
Dublin Circuit Criminal Court
At Mr Theaddus’ trial in Dublin Circuit Criminal Court, there was some discussion as to the validity of the second search warrant for Flat 8.
Judge Martin Nolan was satisfied that the warrant was validly issued – he said he had no doubt that the District Court judge “had a firm basis in granting the warrant”, that the gardaí had “fully informed the judge… by means of information and the additional questions I have no doubt the judge asked”. Judge Nolan said the gardaí had acted appropriately and demonstrated restraint in not going into Flat 8, had obtained their warrant properly, and there was every reason to grant the warrant.
Satisfied that the warrant was valid, Judge Nolan said the fruits of the search were admissible in evidence.
In November 2017, Mr Theaddus was found guilty by a jury of:
- Conspiracy to import a controlled drug contrary to s.71 of the Criminal Justice Act 2006;
- Possession of a controlled drug contrary to s.3 of the Misuse of Dugs Act 1977;
- Possession of a controlled drug for the purpose of sale or supply contrary to s.15 of the Misuse of Drugs Act 1977.
Mr Theaddus was sentenced to five years imprisonment.
Court of Appeal
Mr Theaddus appealed against his conviction on a single ground:
“The learned trial judge erred in principle in ruling that the search warrant contained in the book of evidence was valid and any search carried out on foot of that warrant was lawful”
Contending that the search warrant was invalid, Mr Theaddus said the search was unlawful and in breach of his constitutional right to the inviolability of the dwelling, and that any evidence obtained as a result of the allegedly invalid search of Flat 8 should have been excluded.
It was contended that the search warrant was invalid because the sworn information:
- Provided to the district judge was incorrect and represented untruths as the basis upon which the warrant was being sought;
- Did not contain the relevant and most up to date information as to why the warrant was being sought;
- Was clearly a sworn information prepared for an earlier application in respect of another address.
The Director of Public Prosecutions submitted that the search warrant was validly issued by the district judge pursuant to s.26(1)(a) of the Misuse of Drugs Act 1977, which states that a Justice of the District Court may issue a search warrant if they are satisfied by information on oath of a member of the Garda Síochána that there is reasonable ground for suspecting that a person is in possession in contravention of the 1977 Act on any premises of a controlled drug and that such drug is on a particular premises or other land.
Ms Justice Kennedy said that there could be no doubt that the judge who received evidence on oath in the applications for both warrants was fully cognisant of the circumstances which prevailed in each application. At trial it was revealed that the Garda who made the application for the search warrant for Flat 8 on foot of sworn information which was almost identical to the information sworn in relation to the search warrant for Flat 3 – the only difference being the number of the flat in question.
Ms Justice Kennedy questioned why the wording of the information would alter to any significant degree when the only altered feature was the move from one flat to another. Judge Nolan had accepted the Garda’s evidence that he had prepared the information having been contacted by his colleague, and Ms Justice Kennedy was satisfied that this was a rational finding given the information stated Flat 8 as opposed to Flat 3.
Dismissing the appeal, Ms Justice Kennedy said it was absolutely clear that the district judge was satisfied by information on oath that there was reasonable ground for suspicion in terms of the Act before issuing the warrant, and that Judge Nolan did not err in so finding.
- by Seosamh Gráinséir for Irish Legal News
© Irish Legal News Ltd 2020