High Court upholds judge's decision in early morning Offaly house search

THE District Court judge sitting in Offaly was correct to dismiss a prosecution for alleged drug possession against a Kilcormac man, the High Court ruled.

The DPP was making a 'case stated' appeal against a decision made by Judge Andrew Cody in October 2023.

Judge Cody had dismissed a charge against Richard Davis which alleged he possessed cocaine at his residence in St Cormac's Park on October 27, 2022.

The judge's decision turned on the meaning of the words “accompanied by” where one garda obtains a search warrant and another is present for all of the search.

Mr Davis, aged 25 at the time, had been represented at Tullamore District Court by Patrick Martin, solicitor.

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In a judgment on the appeal earlier this month Mr Justice Michael P O'Higgins stressed that while he was using the word “cocaine”, that should not be taken as a finding that the substance in question was cocaine, one way or the other.

The background was that Garda Helen Colleran obtained four search warrants on October 26, 2022 and the following day four houses were searched, beginning at 7.40am with the one where Mr Davis lived.

Garda Colleran entered through the front door and searched an upstairs bedroom, followed by the sitting room.

While Garda Colleran was going in the front door another guard, Garda Diarmaid Loughnane, entered from the rear and searched a shed and garage.

Garda Loughnane found a suspected substance “at the closing stages” of the search and seized it.

At 8.10am Garda Colleran was at a separate address at Fairgreen Street for a search and after leaving there she carried out a search at Bridge Street, with the latter street being about five minutes' walk from St Cormac's Park. She then went back to St Cormac's Park.

Judge Cody felt that the fundamental question he had to consider was whether Garda Loughnane was accompanying Garda Colleran at the time he found, inspected and seized the substance.

In Judge Cody's view, Garda Colleran failed to appreciate the limits placed on her authority and the authority of the other gardaí who were supposed to be accompanied by her while searching the residence in St Cormac’s Park.

The judge had decided that by leaving Garda Loughnane unaccompanied, Garda Colleran had removed from Garda Loughnane any authority to continue to search, examine, inspect, seize or detain the suspected drugs.

Judge Cody had taken the view that the words “accompanied by” in the relevant section of the Misuse of Drugs Act could be taken to mean that a person “goes along” with another person and that can involve being in the physical presence of someone else, or within a distance of them that permits visual and auditory communication between them.

Judge Cody (pictured below) had also found there was no reason for the searches in Kilcormac that day to be carried out simultaneously.

He ruled that the search and seizure was illegal and dismissed the prosecution against Mr Davis.

The solicitor for the accused, Mr Martin had sought a direction of no case to answer on the basis that none of the other gardai present were empowered to carry out a search in the absence of the authorised officer.

In its appeal, the DPP argued that Garda Colleran lawfully held a warrant and by leaving the property shortly after arriving she did not deprive the other gardai of their entitlement to continue the search.

The DPP said the decision of Judge Cody would limit the conduct of a search to conditions which may bear little resemblance to both the operational backdrop of a given situation.

Counsel for Mr Davis stated Garda Loughnane could not truly be said to have been “accompanied by” the authorised member at the time he located the substance and therefore was a trespasser on the property at the time and any evidence obtained by him unlawful.

Mr Justice O'Higgins decided that the authority of the search warrant was exceeded when a garda member, who was not in any sense accompanied by the authorised member, carried out acts purportedly on the authorisation of the warrant.

He rejected the DPP's submission that the judge’s interpretation of the phrase “accompanied by” was unrealistic or overly restrictive: “The phrase 'accompanied by' should be given its plain meaning, and I am not satisfied that the DPP’s argument sufficiently accommodates any such meaning.”

The question of whether Judge Cody should have engaged with the evidence of an alleged find even though he deemed the search unlawful was also addressed by the High Court.

Counsel for Mr Davis made the point that Judge Cody had not been asked by the prosecution to do this when the case came before him.

Mr Justice O'Higgins said while Judge Cody erred in concluding that the unlawfulness of the search necessarily meant that the charge should “automatically” be dismissed, he emphasises that the judge had not been invited to carry out an enquiry into the evidence from the search.

He disallowed the DPP's appeal and said the decision to acquit the respondent stands.