THE HIGH COURT
			No. 1998  1707 SS
IN THE MATTER OF A CONSULTATIVE CASE STATED PURSUANT TO SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS)  ACT  1961
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
			PROSECUTOR
AND 
JOHN HEAPHY
			ACCUSED
JUDGMENT of Mrs Justice McGuinness delivered the  9th  day of February 1999
	These proceedings come before the Court by way of a Consultative Case Stated by the President of the District Court pursuant to Section 52(1) of the Courts (Supplemental Provisions) Act 1961.  Section 52(1) of the said Act of 1961 provides as follows:-

	"52(1) A Judge of the District Court shall, if requested by any person who has been heard in any proceedings whatsoever before him (other than proceedings relating to any indictable offence which has not been dealt with summarily by the Court) unless he consider the request frivolous, and  may (without request) refer any question of law arising in such proceedings to the High Court for determination."

	The questions of  law put to this Court by the learned President  of the District Court arise from the prosecution before him at the District Court at Anglesea Street, Cork, of the accused John Heaphy.  Mr Heaphy was charged with two offences under the Misuse of Drugs Acts.  The summonses setting out the two charges are annexed to the Case Stated.
	At the hearing before the learned President the Prosecutor was represented by Superintendent P. J. Brennan of Mayfield Garda Station in the City of Cork.  The accused was represented by Mr Frank Buttimer, Solicitor, of 19 Washington Street, Cork.   At the outset Mr Buttimer on behalf of his client indicated to the Court that he was challenging the validity of the issue of a search warrant about which evidence was to be given by the Prosecution.  The Court embarked on hearing the evidence of Garda John Sheedy in relation to the facts of the case and Mr Buttimer again indicated to the Court that he was objecting to the introduction of any evidence being offered by Garda Sheedy which resulted from the execution of the search warrant.  This search warrant had been obtained by Garda Sheedy from Mr Denis Forde, Peace Commissioner.  The President of  the District Court indicated that he would continue to hear the evidence of Garda Sheedy and would hear relevant submissions in relation to the matter at the conclusion of Garda Sheedy's evidence.  He adopted this course without prejudice to the right of the accused's Solicitor to challenge the admissibility of the evidence obtained on foot of the search warrant.
	The learned President of  the District Court then sets out in numbered paragraphs the evidence which was given before him as follows:

(I)                   "On the 3rd day of June 1995 Garda John Sheedy of Anglesea Street Garda  Station in Cork had obtained a warrant under Section 26 of the Misuse of  Drugs Act 1977 to 1984 by the swearing of  an information before a Peace Commissioner, Mr Denis Forde.  Garda Sheedy gave evidence that he had attended before Mr Forde and had sworn an information (which is included at Annex 2 of the Case Stated and forms part thereof).  He gave evidence that he told Mr Forde that the basis of the information was that had received information from an informant who had proved reliable in the past and that he, Garda Sheedy, had watched the premises the subject matter of the search warrant over several days and had  seen activity which he considered associated with drugs.  He informed the Court that he had also seen people he knew to be involved with drugs coming and going from the house.  He stated that he satisfied Mr Denis Forde, the Peace Commissioner, as to these matters and that Mr Forde then signed the search warrant.  He said that before the warrant was signed Mr Forde considered  the information given on oath by himself.  The search warrant is contained in this Case Stated at Annex 3.
(ii)	During the course of his evidence Garda Sheedy produced before the Court his own diary in which he had made a contemporaneous note of the Inquiry conducted by the Peace Commissioner prior to his signing the search warrant.  He also produced before the Court the diary of the late Peace Commissioner himself , whereby an entry had been made by Garda Sheedy with Mr Forde's permission , relating to the extent of the Inquiry conducted by the late Mr Forde prior to the issuance of the search warrant.
(iii)	Garda Sheedy gave evidence that on the evening of the 3rd June 1995 at about 5.55 p.m. he along with other members of the Drug Squad went to 190 Rathpeacon Road.  There he met the owner of the house and identified himself and showed him the search warrant referred to earlier.  He stated that he knew this man to be John Heaphy who was the owner and occupier of the house and he cautioned Mr Heaphy that he 'was not obliged to say anything unless he wished to do so but that anything he did say would be taken down in writing and may be given in evidence'.  Mr Heaphy replied that there was nothing in the house.
(iv)	Garda Sheedy stated that whilst searching the house he found in a refuse bag in the back garden a large quantity of suspected cannabis resin and ecstasy.  He called the owner Mr Heaphy and again cautioned him in like manner as he had done earlier.  Mr Heaphy then replied ''They're mine.'  He then arrested Mr Heaphy at 6.20 p.m. and brought him to Mayfield Garda Station where he met with the member-in-charge, Garda David Hughes.  He made a request of Garda Hughes to have Mr Heaphy detained pursuant to Section 4 of  the Criminal Justice Act 1984 for the proper investigation of the offence. He stated that the grounds of  his application were that he had received information that the prisoner had cannabis resin in his house and that he was selling same and that he had  then obtained a warrant to search the house and had found a large quantity of cannabis resin and ecstasy.  He stated to the Court that he told Garda Hughes that in total there were 44 foil wrapped deals of suspected cannabis resin and 16 suspected ecstasy tablets and that the quantity could not be for his own use and that he wanted to investigate where the prisoner had got it from, who he had got it from and who he was going to sell it to.  Garda Hughes then detained Mr Heaphy under Section 4 of the Criminal Justice Act 1984 and informed him accordingly at 6.25 p.m. and Mr Heaphy was placed in a cell.
(v)	At approximately 7 p.m. Garda Sheedy took Mr Heaphy from the cell and brought him to an interview room along with Garda Bill Dawes.  They spoke to Mr Heaphy in relation to the drugs found and took a memo after cautioning him that he was not obliged to say anything unless he wished to do so, but that anything he did say would be taken down in writing and might be given in evidence.  He told the Court that he showed John Heaphy the cannabis and ecstasy tablets found.  Mr Heaphy then indicated that he wished to make a statement and Garda Dawes took one from him after a caution.  The deals of cannabis and ecstasy were then labelled and packaged and were handed  to Garda Mary King for conveyance to the Forensic Science Laboratory for analysis.  Garda Sheedy later received a certificate confirming that the drugs were controlled drugs.  
(vi)	Mr Buttimer,  Solicitor, on behalf of the accused cross-examined Garda Sheedy in relation to his obtaining of the search warrant referred to.  Mr Buttimer informed the Court that he was not contesting the cautioned statement made by the accused whilst detained under Section 4 of the Criminal Justice Act save and insofar as same was affected by the alleged invalidity of the search warrant."
	
	The learned President then points out  that Mr Denis Forde, Peace Commissioner, was deceased at the time of the hearing before him and consequently the prosecution was not in a position to ensure his attendance before the Court.  The learned President then goes on to summarise the submissions made by Mr Buttimer on behalf of his client in regard to the alleged invalidity of the search warrant and the necessity to have the Peace Commissioner present in person in Court to give evidence in regard to his issuing of the warrant and his state of  mind at the time.  He also summarises the replies given by Superintendent Brennan on behalf of the Director of Public Prosecutions .  There is no need to detail these submissions here since they are covered by the submissions made before me by Counsel for the accused and Counsel for the Director of Public Prosecutions.
	Having heard the submissions the President of the District Court agreed to state a consultative case to this Court and adjourned the trial before him pending the determination of  the case stated.  He then sets out the questions of  law on which he requests the assistance of  this Court.  They are as follows:-

(i)	"Was the evidence given to the Court of Trial by Detective Garda John Sheedy 	sufficient to prove on a prima facie basis the valid issue of the search		 warrant in question.
(ii)	If  the answer to No. 1 is in the affirmative, is it necessary that the Peace 		Commissioner should give evidence on oath to prove his enquiry?
(iii)	If  the warrant was not validly issued, was a search on foot of the said warrant 	in breach of the constitutional rights of the Defendant thus rendering the 		evidence obtained on foot of the said warrant inadmissible?
(iv)	Is the cautioned statement of the Defendant of admission in relation to the 		facts contained therein sufficient in the absence of the other evidence 		questioned herein sufficient to enable the Court to proceed to conviction?"

	The information sworn by Garda Sheedy is annexed to the Case Stated.   This  is set out in a printed form with the relevant information written in by hand.  It states as follows:-   		
Information
	The information of Garda John Sheedy of An Garda Siochana who upon oath states as follows:-

	"I am a member of  An Garda Siochana and I suspect, on the basis of 		information within my possession, that 
(a)	A person is in possession on the premises or other land at 190 Rathpeacon 	Road, Cork, in contravention of the Misuse of Drugs Acts, 1977 and 1984, of 	a controlled drug, namely cannabis, cannabis resin, methylenediox 		ethylamthepamine (MDMA), L.S.D.
	and that
(b)	Such drug is on a particular premises or other land "
	
	The basis for such suspicion is that I have received information from an informant who has proved reliable in the past.  I have also carried out surveillance on the above premises and noticed activity I believed to be in connection with drugs.  I also have seen people I know to be involved with drugs coming and going  from the house.  I hereby apply for a warrant to search for and seize the article named above.
	The information is sworn on the 3rd June 1995.
	The search warrant is also annexed to the case stated and again it is a printed 	form with the relevant information written in in handwriting.  The relevant 	part reads as follows:
Warrant to Search
(Pursuant to Section 26 of the Misuse of Drugs Acts, 1977 and 1984)
Whereas I, the undersigned Peace Commissioner, am satisfied on the information on oath of Garda John Sheedy of An Garda Siochana that there is reasonable grounds for suspecting that a controlled drug to which the Misuse of Drugs Acts 1977 and 1984 applies namely:
	
	Cannabis, cannabis resin, LSD, methylenedioxethylamthepamine (MDMA) 	or any pipe, document, utensil, forged prescription or a duly issued 		prescription which has been wrongfully altered, is, in contravention of the 		said Act or regulation made thereunder in the possession or under the 		control of any person in the premises or other land at 190 Rathpeacon Road, 	Cork.
	
The remainder of the warrant is in the customary form.  It is dated  the 3rd June 1995 and signed by Denis Forde, Peace Commissioner.
	Counsel for Mr Heaphy, the accused, submitted that it was essential to the validity of the search warrant that the Peace Commissioner himself be satisfied of  the grounds on which the Garda suspected that a controlled drug was on the premises at Rathpeacon Road.  He relied as an authority for this submission on Byrne v Grey [1988] 1 IR 31 and DPP v Kenny [1990] ILRM 569.  He stressed the importance of the inviolability of the dwelling of every citizen and referred to Article 40.5 of the Constitution.  This led to the need for a strict interpretation of any rule in regard to the validity of search warrants and he here referred to the judgment of Carney J in DPP v Dunne [1994] 2 IR 539.  Counsel for the accused submitted that in addition to these requirements it was necessary for the Peace Commissioner who issued the warrant to be present in Court and to give evidence of  his state of mind and the reasons why he was personally satisfied by the information sworn before him by Garda Sheedy.  In regard to this point of his submission he drew the attention of the Court to the judgment of the Supreme Court in DPP v  Byrne [1989] ILRM 613.  In that case the accused had been arrested under Section 30 of  the Offences Against the State Act 1939.  His initial period of detention had been extended for a further four hours by a Garda Chief Superintendent.  During the period of extended detention an inculpatory statement was made by the accused which the prosecution wished to adduce in evidence.  The Chief Superintendent was no longer alive at the date of the trial and no evidence could therefore be adduced as to the state of his mind when directing the extension period.  Accordingly, the trial Judge ruled the statement inadmissible and directed the jury to acquit the Respondent.  The Director of Public Prosecutions appealed against the acquittal.  On appeal the Supreme Court held that the prosecution had failed to show that the detention of the Respondent was lawful  at the time the statement was made.  There was no suggestion that the Chief Superintendent did not suspect the Respondent of  having committed a scheduled offence at the time the extension period was granted, but such suspicion had to be expressly proved and could not be inferred either from the signing of the formal direction or by hearsay evidence of a verbal direction.  The necessary evidence could be given only by the Chief Superintendent in question.
	During the course of his submission Counsel for the accused also raised a matter which did not arise on the case stated by the learned President of the District Court.  He queried the procedure whereby Garda Sheedy not only made a contemporaneous entry in his own diary but also, with the permission of Mr Forde, made an entry in regard to his information and the issuing of the warrant in the Peace Commissioner's own diary.  So far as I understand it, Counsel was implying that Mr Forde was in some way incapable of  properly carrying out his functions through illness.
	There is no evidence before either the District Court or this Court which in any way supports this implication.  No such suggestion was made in the District Court by Mr Buttimer, Solicitor for the accused.  It appears that some two years elapsed between the issue of the warrant and the hearing before the District Court and no doubt all the circumstances were fully known to Mr Buttimer.  More importantly, this Court is confined to considering and determining the questions put before it by the learned President of  the District Court and no other question.  I therefore totally reject this part of Counsel's submission.
	Counsel for the Director of Public Prosecutions accepted that before issuing a search warrant  the Peace Commissioner must himself  be satisfied  of  the grounds for the Garda suspicions, and that the Commissioner could not act  merely as a  rubber stamp.  However, on the facts of the instant case, he contrasted the detailed nature of Garda Sheedy's information with the bare statement of the Garda suspicions in both Byrne v Gray and DPP v Kenny.  He submitted that the information sworn by Garda Sheedy  was quite sufficiently  factual and  detailed to enable the Peace Commissioner to be satisfied as to the grounds  for issuing the warrant.
	On the question of  the need for the Peace Commissioner to be present in Court, Counsel for the DPP relied on the judgment of  the Court of Criminal Appeal in DPP v Ian Smith (unreported Finlay CJ 5th November 1990).  In this judgment the learned Chief Justice reinforced the ratio of Kenny's case stating (at page 3):

	"The Supreme Court in the Kenny case clearly indicated that the Commissioner was carrying out a duty of reaching a decision and that in so doing he must not act as a mere rubber stamp, to paraphrase the reason for the decision, on the information of a member of the Garda Siochana......."

	In the Smith Case the net point being raised was that when the Garda involved went to a Peace Commissioner to obtain the search warrant he had sworn an  information  in writing, consisting merely of a statement that he had knowledge and belief that the stolen property might be found on the premises.  He gave evidence that in addition to that he supplemented that information by stating that the owner of  the stolen  jewellery had seen what she was satisfied was two of the objects of  jewellery in the window of  the Defendants' shop.  The learned Chief Justice went on to say:
 
	"It was submitted by Mr O'Carroll on behalf of the appellant that that oral 	evidence changed the situation and that the court could not act under such 	warrant which was obtained in part on that oral evidence without having the 	evidence of the Peace Commissioner who granted it.  This Court  is satisfied 	that there is nothing in that submission."

	Mr  McDonagh on behalf of the DPP submitted that equally in the instant case there was nothing in the point with regard to the presence in Court of the Peace Commissioner.
	With regard  to the DPP v Byrne   he submitted that the circumstances were entirely different and that there was no evidence before the Court in that case of the material which the Chief Superintendent had before him and which he had considered before directing the extension of the period of custody.
	It was common case between Counsel (and in this, in my view, they were correct) that if the search warrant was in fact invalid the search carried out on foot of it was in breach of the constitutional rights of the accused, and any evidence obtained as a result of such search was inadmissible, as was also the inculpatory statement made by the accused when shown the articles found on the premises - see, for example, DPP  v Healy [1990] ILRM 313.
	The search warrant in the instant case was obtained from Mr Denis Forde, the Peace Commissioner, pursuant to Section 26(1) of the Misuse of Drugs Act 1977 as amended.    Section 26(1) of  the 1977 Act as amended provides:-
	"If  a  Justice of the District Court or a Peace Commissioner is satisfied by  	information on oath of a member of  the Garda Siochana that there is 		reasonable ground for suspecting that -
	(a)	a person is in possession in contravention of this Act on any premises 		or other land of a controlled drug, a forged prescription or a duly 			issued prescription which has been  wrongfully altered and  that such 		drug  or prescription is on a particular premises or other land......
		such Justice or Commissioner may issue a search warrant mentioned 		in  sub-section (2) of  this section."

	In DPP v Kenny [1990] ILRM 569 the information sworn by the Garda who sought the warrant was in the following terms:-
	"I am a member of An Garda Siochana and I suspect on the basis of 		information within my possession that:-
(a)	a person is in possession on the premises or other land the Flat 1, Ground 		Floor, 1 Belgrave Place in contravention of the Misuse of  Drugs Acts 1977 	and 1984 of a controlled drug, namely, diamorphine, or cannabis resin, and	 that
(b)	such drug is on a particular premises or other land Flat 1, Ground Floor, 1 	Belgrave Place, Rathmines.  I hereby apply for a warrant to search for and 	seize the articles named above."

	The information sworn in the previous case of  Byrne v Gray [1988] IR 31 was along very much the same lines.
	In DPP v Kenny, the Court of Criminal Appeal had found that the warrant issued was invalid by reason of the fact that there was no evidence that the Peace Commissioner was himself satisfied that there were reasonable grounds for suspecting the existence of controlled drugs on the premises, but rather that the only evidence was to the effect that he relied in its entirety on the information in writing submitted to him by the Garda Siochana, in other words, that he relied on the fact that the Garda had grounds for so suspecting.  In that case also the Peace Commissioner had died before the date of trial.  When the matter was appealed to the Supreme Court the then Chief Justice, Finlay J, quoted with approval a section of  the judgment of  Hamilton P. (as he then was) in Byrne v Gray as follows:-

	"These powers encroach on the liberty of the citizen and the inviolability of 	his dwelling as guaranteed by the Constitution and the Courts should construe 	a Statute which authorises such encroachment so that it encroaches on such 	rights no more than the Statute allows, expressly or by necessary implication.
	The Statute authorising such encroachment provides at Section 26 thereof that 	a Justice of the District Court or a Peace Commissioner must be satisfied by 	information on oath of a member of the Garda Siochana that there is 		reasonable ground for the suspicion before he is entitled to issue the search 	warrant mentioned in the Act as amended."

	I am clearly bound by the decision in DPP v Kenny and I accept that the Statute must be construed strictly.  However I would agree with Counsel for the DPP that the information sworn by Garda Sheedy in the instant case is a very different matter from the informations sworn in either Byrne v Gray or DPP v Kenny.  In his information Garda Sheedy spoke of  having obtained information from a usually reliable source and of his surveillance of the premises and what he saw during the course of  that surveillance.  It seems to me  that having this information before him the Peace Commissioner had quite sufficient material on which to satisfy himself that he should issue the warrant and he therefore proceeded to do so.  He was not in my opinion acting as a "rubber stamp" in this instance.
	With regard to the submission that the Peace Commissioner would have to be present in Court and give evidence of  his state of mind at the time of issuing the warrant, I would have no difficulty in following the authority of  DPP v Ian Smith quoted above.  Provided the Peace Commissioner had sufficient  material before him (as he had in this case) to enable him to satisfy himself of the need to issue the warrant it must be assumed that he carried out his functions properly and was so satisfied.  I would agree with Mr McDonagh that the situation in DPP v Byrne is a different one, particularly in view of the fact that in that case there was no evidence of  the material which the Chief Superintendent had before him at the time of making the decision.
	The answer therefore to the questions posed  by the learned President of the District Court are as follows:-

(i)	Yes on a  prima  facie  basis but it is for the Trial Judge to decide the eventual 	question when he has heard all the relevant evidence.
(ii)	No.
(iii) and (iv)	In view of the previous answers these questions do not arise.