APPEAL NO. 76 /2004
RESPONDENT and
MICHAEL TYNDALL APPELLANT
Judgment delivered on 3rd day of May, 2005 by Denham J.
1. At issue in this case are the proofs of an arrest in a trial where the State was put on notice that the arrest was being challenged. The arrest was made pursuant to s.30 of the Offences Against the State Act, 1939 (hereinafter referred to as the Act of 1939) under which a member of the Gárda Síochána may arrest any person whom he or she suspects of having committed or being about to commit or being or having been concerned in specific offences.
2. The issue comes before the Court on an appeal pursuant to s.29 of the Courts of Justice Act, 1924. The Court of Criminal Appeal has certified that its decision of the 26th May, 2003, refusing Michael Tyndall, the applicant/appellant, hereinafter referred to as the applicant, leave to appeal against his conviction by the Dublin Circuit (Criminal) Court on the 9th March, 2001, involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal be taken to the Supreme Court on that decision.
3. The points of law certified for consideration by this Court are:(a) Whether the Court of Criminal Appeal was correct in determining that the arrest of the applicant was a valid arrest pursuant to s.30 of the Offences Against the State Act 1939 in circumstances where no evidence was led as to the suspicion of An Gárda Síochána that the applicant had committed a scheduled offence at the time of the arrest. The extent of the evidence of Detective Sergeant Campbell on the arrest was that of arrest, charge and caution.
(b) Whether the Court was entitled to infer the requisite suspicion for the purposes of a s.30 arrest in any circumstances.(c) Whether the wording of the section is such as to require formal proof by leading oral evidence in specific terms of the existence of the suspicion of the arresting officer given that the suspicion is a statutory element of a valid s.30 arrest.
4. Background
The background to the case is that James Mahon, a milkman by occupation, was at home with his family, his three children, his partner Georgina Finn and her brother Christopher Finn. Two men entered the house. One had a baseball bat and the other a knife and gun. Mr. Mahon was stabbed and badly injured. The prosecution case was that the applicant was the man who had the knife and gun.
The applicant was charged on indictment that on the 9th April, 1999, (i) he did have with him a firearm namely a Smith and Weston air pistol of 6mm calibre with the intent to commit the indictable offence of robbery; (ii) robbed one James Mahon of cash to the value of £450; (iii) intentionally or recklessly caused serious injury to James Mahon.
The applicant pleaded not guilty on all counts and on 21st February, 2001 his trial commenced in the Dublin Circuit Criminal Court before His Honour Judge McCartan and a jury. The applicant was convicted on all counts and sentenced to a term of 12 years imprisonment on the 20th March, 2001.
5. Law
Section 30(1) of the Offences Against the State Act 1939 provides:“A member of the Gárda Síochána … may without warrant … arrest any person … whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act…”
The words of the section are clear. A member of the Gárda Síochána may without warrant arrest any person whom he suspects of having committed or being about to commit or being or having been concerned in the commission of a specified offence. The suspicion is a condition precedent to the arrest. Section 30 gives to a member of the Garda Síochána a significant power.
6. The evidence of arrest
The evidence of the arrest was that Sergeant Patrick Campbell stated:“I knocked on the front door, my Lord, Mr. Michael Tyndall opened the front door. I identified myself as a member of an Gharda (sic) Siochana from Shankill Station and I immediately arrested Mr. Michael Tyndall under Section 30 of the Offences Against the State Act, of 1939 for the scheduled offence of unlawful possession of firearms at 33 Clifton Park, on 9th of April, 1999.”
He gave the applicant the usual caution and informed him that he was arresting him under s.30 of the Offences Against the State Act, 1939.
7. The Trial Judge held that the arrest was valid stating:“… It is correct from the evidence he gave that he did not state specifically in his testimony that he had a suspicion. But I am prepared to infer and give the proper and ordinary meaning to the words that when the Detective Sergeant informed the accused at the front door that he was arresting him under Section 30 of the Offences Against the State Act 1939 for the unlawful possession of firearms … and proceeded to caution him and tell him why he was being arrested, that the Detective Sergeant was and had at that time a reasonable suspicion. The mere omission in evidence of the words, because I had a reasonable suspicion or the suspicion of his unlawful possession, does not render that arrest in my view incomplete or unsatisfactory … But I do not hold the view that the mere omission of the use of the words amounts to de facto or de jure an absence or omission or non-existence of that suspicion. Detective Sergeant Campbell was the officer in charge of the investigation which was underway since the 9th of April 1999. He was in possession of the facts, he had obtained a search warrant, though it has not been relied upon or produced in evidence for the purposes of a search of the home of the accused under section 30, and he went there. Immediately Mr. Tyndall appeared to him at the door, he arrested him for the unlawful possession of firearms at 33 Clifton Park on the 9th of April. I am satisfied that that by definition, or as Mr. Gaffney puts it, leads to an irresistible inference that he had such a suspicion and acted upon it. Consequently, I am satisfied that the arrest is lawful for the purposes of this trial.”
8. The Court of Criminal Appeal held:“This court is satisfied that if the learned trial judge was entitled to draw inferences on this issue from the specific evidence adduced, then there was ample evidence on which he could draw such an inference. The only issue is whether the wording of the section is such as to require formal proof in specific terms of the existence of the suspicion by the arresting officer. The section validates the arrest without warrant of the person “who he suspects” of having been concerned with the commission of the relevant offences. It says nothing as to how this suspicion is to be arrived at, or as to the strength of the suspicion. Of course, this suspicion must be genuine, and even if the arresting officer gives evidence that he had a suspicion, he may be cross-examined to show that it was not genuine. However, this does not affect the nature of the proof of the suspicion. There is nothing in the section to indicate that the suspicion need be proved in any particular way, it is simply one fact which the prosecution must prove. While in criminal prosecutions it is more difficult to infer matters than in civil proceedings, nevertheless the drawing of inferences is an essential ingredient in many criminal prosecutions.
In the present case, the validity of the arrest was a matter of law to be determined by the trial judge, but nevertheless it was a matter in relation to which the onus of proof, as in all matters in criminal proceedings, lay on the prosecution, and that the onus of proof was to satisfy the court beyond all reasonable doubt that the arrest was valid. This court is satisfied that the prosecution was entitled to so satisfy the court by inferences from undisputed evidence of fact, and is further satisfied from the words of the learned trial judge that there was “an irresistible inference that he had such a suspicion and acted upon it”, that the learned trial judge was satisfied beyond all reasonable doubt that the relevant suspicion did exist in the mind of the arresting officer, and that he was entitled to draw the inferences which he drew. The court is therefore satisfied that the arrest was valid.”
9. Submissions
On behalf of the applicant Mr. Ciaran O’Loughlin S.C. and Ms. Marie Torrens B.L. submitted that the State was put on notice that the arrest was being challenged but that the evidence given by Detective Sergeant Campbell did not include evidence of his suspicion as is required under s.30 of the Act of 1939. Further, that he gave no evidence from which the court could infer his suspicion. To clarify the situation, it was agreed that there was no evidence of a search warrant before the court. Counsel submitted that evidence of the suspicion of the arresting member of the Gárda Síochána was an essential proof and that it did not exist in this case.
Mr. Maurice Gaffney S.C., on behalf of the Director of Public Prosecutions, accepted that Ms. Torrens B.L., had put the prosecution on notice that the arrest would be challenged. He submitted that evidence was offered and that the learned trial judge was satisfied. He accepted that there was no direct evidence of his suspicion by the arresting guard. However, counsel submitted that there was circumstantial evidence from which the suspicion could be inferred. Counsel submitted that the investigating officer gave evidence that he went to the door and arrested the applicant and told him why he was arresting him and that inferences may be drawn from the circumstances of the case. The circumstances of this case were that the arresting officer was the investigating officer, that he had the powers under s.30 of the Act of 1939, and that he exercised those powers. It was submitted that the terms of s.30 require a ‘suspicion’ of the arresting member and that there was circumstantial evidence from which it could be inferred that he had the suspicion. This circumstantial evidence was: (a) the fact that the arresting officer was the investigating officer, (b) that he was a detective sergeant, (c) that an inference must be drawn that he was appraised of the crime, (d) and that it was expressed to be a s.30 arrest. Counsel submitted that the inference is irresistible that the arresting officer had the suspicion and that a jury would have so found. He submitted that it is unimaginable that the detective sergeant would arrest a person on whom he had no suspicion. He submitted that the learned trial judge was entitled to conclude that the circumstances were sufficient to compel an inference that the necessary suspicion existed.
10. Decision
Section 30 of the Act of 1939 requires that the arresting member of the Gárda Síochána have a suspicion as set out in the section. This is an essential condition precedent to arrest. The section does not indicate that the suspicion has to be proved in any special manner. In People (DPP) v Quilligan [1986] I.R. 495 at p. 507 Walsh J. stated:“It is to be noted that before exercising any of the powers conferred in s.30 the Garda concerned must have the required suspicion whether or not the Garda in question has the required suspicion is itself a question of fact …”
Proof of this fact, of the suspicion, may be by direct evidence. There was no such direct evidence in this case.
I agree with the learned trial judge that the omission of direct evidence of the suspicion does not render the arrest unsatisfactory if the suspicion may be inferred from the circumstances. The suspicion held by the arresting member of the Gárda Síochána may be inferred from the circumstances.
Section 30 is pivotal to the decision of this case, – as it was in The People (D.P.P.) v Quilligan [1986] I.R. 495. In Quilligan Walsh J. stated, at p.506:“Section 30 of the Act, which is in Part IV and therefore part of the legislation permanently in force, is the pivotal point of the present case. That section provides that a member of the Gárda Síochána (a) in uniform, or (b) if not in uniform, on production of his identification card if demanded, may without a warrant do the following acts or any one or more of them in respect of any person (i) whom he suspects of having committed or being about to commit, or (ii) being or having been concerned with the commission of, an offence under any section or subsection of the Act of 1939, or an offence which is for the time being a scheduled offence for the purpose of Part V of that Act, or whom he suspects of carrying a document in relation to the commission or intended commission of any such offence as aforesaid, or whom he suspects of being in possession of information relating to the commission or intended commission of any such offence as aforesaid, (a) stop, (b) search, (c) interrogate, (d) arrest any such person, or do any one or more of these things in respect of such person. It is to be noted that before exercising any of the powers conferred in s. 30 the garda concerned must have the required suspicion. Whether or not the garda in question has the required suspicion is itself a question of fact, because if he has not then the action taken by virtue of s.30 and purported pursuant to s.30 would be illegal. Furthermore the suspicion must be one which is bona fide held and not unreasonable – see the views of this Court in The State (Lynch) v Cooney I.R. 337 when dealing with the “opinion” formed by the Minister in question. The “suspicion” of a member of the garda in relation to s.30 is not beyond judicial review as is clearly established by the decision of this Court in The State (Trimbole) v The Governor of Mountjoy Prison [1985] I.R. 550.”
Of the evidence of suspicion in Quilligan Henchy J stated, at p. 514:“There was a bona fide suspicion on the part of the arresting garda that the accused had been concerned in the commission of what unquestionably was at the time a scheduled offence”.
The evidence in Quilligan showed the existence of a genuine suspicion by the members of the Gárda Síochána that the accused had been involved in the scheduled offence of malicious damage to property.
Evidence of the suspicion of the arresting garda may be inferred from the circumstances, but evidence must exist from which it may be inferred. An analogy may be drawn with s.49(6) of the Road Traffic Act, 1961 where an ‘opinion’ is required by the arresting member of the Gárda Síochána. In Director of Public Prosecutions v O’Connor [1985] I.L.R.M. 333 Henchy J. stated at p.p. 334 - 335:“I readily accept that for the validity of the arrest under s.49 (6) it was necessary for the prosecution to show that Garda Flynn had formed the opinion that the defendant had committed an offence under that section. Consider then what Garda Flynn’s evidence was. According to the case stated it was proved or admitted that he had ‘informed the defendant that he was arresting him under s.49 (6) for an offence under s.49 (2) and (3)’. Does that show that the garda had formed an opinion that the defendant had committed an offence under the section? Counsel for the defendant submits that it may mean no more than an opinion that the defendant may have committed an offence under the section. And that, he argues, was insufficient to support a valid arrest and consequently a valid conviction.
I must confess that I regard this point as having substance only if plain words are not given their ordinary meaning and the realities of the situation are ignored. Garda Flynn had seen the erratic way the bus had been driven when it turned off the dual carriageway into Kill. In doing so it swung very wide and swerved twice. When the garda spoke to the defendant he noticed that his breath smelled of alcohol and that his speech was slurred. The defendant then failed an alcolyser test. It is in those circumstances that we are asked to say that, although the garda told the defendant that he was arresting him ‘under s.49(6) for offences under s.49(2) and (3)’, this may mean only that the garda was of opinion that such an offence may have been committed, as distinct from had been committed. S.49 (6) is in the following terms:
A member of the Gárda Síochána may arrest without warrant a person who in the member’s opinion is committing or has committed an offence under this section.
I regard the garda’s evidence in the District Court to have been to the effect that he told the defendant that, in exercise of the power of arrest given by s.49(6), he was arresting him for having committed an offence under the section. In other words, when the garda said to the defendant that he was arresting him under s.49 (6), he was by necessary implication invoking the terms of that section. When the words spoken are related to those terms and to the circumstances, the garda’s evidence must be taken to mean that he had formed the opinion that the defendant had committed an offence under the section.”
The O’Connor case concerns the Road Traffic Act and so is not on all fours with this case. It is analogous in that while requiring an ‘opinion’ of the arresting member of the Gárda Síochána such opinion may be inferred from the circumstances. However, there were clear circumstances in O’Connor from which the opinion of the arresting member could be inferred.
In this case there was no such evidence brought before the Court to enable it to infer the suspicion. The mere fact of the arresting member being an investigating officer, a detective sergeant, is insufficient. The result is that the prosecution relies on the arrest to prove the suspicion required of the member of the Gárda Síochána in circumstances where the member may only arrest if he already had the suspicion required.
Suspicion is not defined in the Act. It should be bona fide and not irrational. It is a fact to be proved by direct evidence, or it may be inferred from the circumstances. It is an essential proof. The circumstances of this case were not such as to enable a court to infer the suspicion. The learned trial judge was not entitled to conclude that the circumstances were sufficient to compel an inference that the necessary suspicion existed. If the fact of an arrest by a detective sergeant, who was an investigating officer, was sufficient from which to infer the required suspicion of the member of the Gárda Síochána, when the arrest is only valid if the member has the necessary suspicion, it would be to apply reasoning which is circular and flawed. There must be circumstances other than the arrest itself by a member of the Gárda Síochána from which the suspicion of the arresting member may be inferred.
The clear words of s.30 require that the arresting member of the Gárda Síochána have a suspicion. Evidence of that suspicion may be given either by direct evidence or by indirect evidence. There was no such evidence in this case.
Consequently I would answer the questions posed as follows:
(a) No. In the circumstances where there was no evidence as to the suspicion of the Gárda Síochána that the applicant had committed a scheduled offence at the time of the arrest, the Court of Criminal Appeal was not correct in determining that the arrest of the applicant was a valid arrest pursuant to s. 30 of the Offences Against the State Act, 1939.
(b) The Court is entitled to infer the requisite suspicion for the purposes of a s.30 arrest. As to whether there is proof of the suspicion will depend on the circumstances.
(c) The wording of s.30 of the Act of 1939 requires proof of the existence of the suspicion of the arresting member of the Gárda Síochána which may be proved by direct evidence or indirect evidence arising in all the circumstances.
It becomes unnecessary now to consider the other grounds of appeal which related to points not certified. Having regard to the view I have formed of the arrest, I would allow the appeal. I would set aside the Order of the Court of Criminal Appeal and substitute therefore an Order (i) granting leave to appeal; (ii) treating the hearing of the application for leave to appeal as the hearing of the appeal itself; and (iii) quashing the conviction and sentence of the Circuit Court.
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