Supreme Court allows drug evidence found after lawful police opening of a postal package under customs powers.

The Supreme Court

S.C. No. 53 of 2012

Denham C.J.

O’Donnell J.

McKechnie J.

Charleton J.

Between/

The People (at the Suit of the Director of Public Prosecutions)

Prosecutor/Appellant

and

BA

Accused/Respondent

Judgment of O’Donnell J delivered on 10th May 2016

1 I am happy to adopt the account of the relevant facts and legislation as set out in the judgment of Charleton J. I also agree with

his conclusion that the evidence of the cocaine found in the package addressed to a Mr Johnson Kelly, and found at the address in

Phibsboro, and indeed the other items of evidence found there, namely, cannabis resin and a forged driving licence, were admissible

evidence at the trial of the respondent, and no issue arose which either permitted or required the exclusion of such evidence.

Accordingly, the learned Circuit Court judge was, in my view, wrong to exclude the evidence. I have, however, arrived at that

conclusion by a somewhat different route. Because these issues are likely to reoccur under this and similar legislation, I set out my

reasoning briefly hereunder.

2 It is important to keep in mind that the respondent here was not charged with any offence in relation to interference with a postal

packet. The offences with which he was charged were of possession of various drugs, which had been found in an apartment he was

then occupying, following a search conducted pursuant to a search warrant issued under s.26 of the Misuse of Drugs Act 1977 as

amended. The case against the accused did not rely on evidence of the opening of the packet in Store Street. The prosecution, at

least initially, had not even sought to adduce any evidence of what occurred in Store Street Garda Station as part of the prosecution

case against the accused. The issue of interception of the postal packet was important not because of the admissibility in evidence

of the opening of the packet in Store Street, but rather because of what was alleged to be the downstream consequences in respect

of the warrant, and therefore the search, and ultimately the evidence that was found as a result. The argument as to admissibility of

evidence arose because it was argued that what had occurred earlier at Store Street Garda Station was an interception of a postal

packet, requiring authorisation of the Minister under the Interception of Postal Packets and Telecommunications Messages

(Regulation) Act 1993. This, in turn, required a consideration of whether the opening of the package constituted a breach of s.84 of

the Postal and Telecommunications Services Act 1983, which creates an offence of opening or attempting to open, delaying,

detaining or tampering with any “postal packet” otherwise than under lawful authority set out in that section. If so, it was said on

behalf of the accused, this had a domino effect: it meant that the evidence obtained in Store Street Garda Station could not itself be

the basis for a valid application for a search warrant. The warrant, although regular on its face and supported by information justifying

its issuance, was therefore invalid. As a consequence, the evidence obtained on foot of the warrant was, it was said, wholly

inadmissible.

The legal argument made, therefore, depends for its starting point on an assertion that a criminal offence had been committed under

s.84 of the 1983 Act, or at least, that an interception had occurred which, under the 1993 Act, required authorisation which had not

been obtained. I agree at the outset that what happened in Germany is not dispositive for the purposes of this case. Even allowing

for the fact that the package was identified by German authorities, and collected by a member of An Garda Síochána in Germany and

brought to Ireland, the question remains whether the package addressed to Johnson Kelly was a “postal packet” within the meaning

of the s.84 of the 1983 Act, and s.1of the 1993 Act, when opened, as it undoubtedly was, in Store Street Garda Station.

4 The central question here, therefore, is the statutory definition of “postal packet”. I gratefully adopt the statutory genealogy

carefully set out in the judgment of Charleton J. Accordingly, the term “postal packet” in the 1993 Act has the same meaning as it

had in the 1983 Act. Under s.2(2) of that Act, it appears that any term used in the 1983 Act which had appeared in the Post Office

Act 1908 has a meaning ascribed to it by that earlier Act. By s.89 of that Act, a “postal packet” was defined as:

“…a letter, post card, reply post card, newspaper, book packet, pattern or sample packet, or parcel, and every packet or

article transmissible by post ….” (emphasis added)

5 The literal meaning of the last words in this phrase certainly suggest that the statutory definition captures a parcel capable of being

transmitted by post as well as one which is in the course of transmission. I do not think that s.5 of the Interpretation Act of 2005 is

of assistance here, since in the first place that section does not apply to a provision which “relates to the imposition of a penal or

other sanction”. In any event, I doubt that the definition of a postal packet as one “transmissible by post” is itself potentially absurd

as a definition, nor is it necessarily absurd in the broader context of section 84. It is not impossible that the legislature intended to

capture interferences with packets both before and after they had been consigned to the postal system.

6 I agree that s.66 of the 1983 Act provides that postal packets “in the course of post” shall be immune from examination and seizure

except as provided for by law. But I do not consider that that resolves the issue, since s.84 creates a specific offence and does not

include the same phrase. Whatever the logic, the fact that s.66 refers to postal packets “in the course of post” and s.84 does not,

tends against interpreting the phrase on its own as incorporating the concept of being in the course of post.

7 It also seems to me that a consideration of the legislative history leads to the conclusion that the term “transmissible by post” has

its ordinary meaning. It is agreed that the references in the 1983 Act (and therefore the 1993 Act) have the same meaning as that

contained in the 1908 Act. It is, therefore, telling that ss. 50, 54 and 55 of the 1908 Act create a number of offences of interference

with or stealing of postal packets, in each case described as being postal packets “in the course of transmission by post”. Perhaps

significantly, whereas s.55 and s.56 deal with offences which can be committed by an officer of the Postmaster General, s.54

provides for offences committed by a person not in the employment of the Postmaster General. Section 54(4) states that a “letter in

this section means a postal packet in the course of transmission, by post and any other letter which has been delivered by post”.

Again, in this respect, it is significant that the Larceny Act 1916 sought to codify criminal law in respect of offences of dishonesty,

and reproduced portions of ss. 50, 52 and 55 of the Post Office Act 1908. Thus, s.12 of the Larceny Act 1916 created an offence of,

inter alia, stealing from a “postal packet in the course of transmission by post”. It seems to me, therefore, that this is suggestive of

postal packets having a broad definition, which required that when the offences were specified, the term had to be specifically limited

by the phrase “in course of transmission by post”. Counsel for the respondent also points out that the same conclusion can be arrived

at by a consideration of the 1983 Act. Section 83 of the 1983 Act has been repealed by the Provisions of the Communications

Regulation (Postal Services) Act 2011, but was in force at the time of the alleged offences. In any event, I think it is permissible to

have regard to a repealed provision for the purposes of understanding language used in the rest of the Act, unless it appears from the

subsequent amendment that it was intended to alter the scope of the provision. Section 83 of the 1983 Act provides, inter alia, that

the company may “(a) refuse … postal packets which do not comply with schemes under section 70 or with the provisions of this Act,

or which consist of or obtain objectionable matter”. The power of refusal seems to be inconsistent with the argument that a postal

packet must mean an item which is already within the postal system of the State. As Bennion on Statutory Interpretation, 5th Ed.,

(UK, 2008), states, at p. 1160:

“It is presumed that a word or phrase is not to be taken as having different meanings within the same instrument, unless

this fact is made clear. Where therefore the context makes it clear that the term has a particular meaning in one place, it

will be taken to have that meaning elsewhere.”

8 Counsel for the respondent also points out that an interpretation of “postal packet” as meaning only such matters which are within

the postal system of the State would mean that, among other things, s.66 of the Act of 1983 was at best tautologous in providing

that postal packets “in course of post” shall be immune from examination, detention or seizure. Indeed, on one view, it would lead to

an interpretation of the term postal packet which was not just different from, but contradicted the statutory definition. A postal

packet, while statutorily defined as a packet transmissible by post, would be limited to one being transmitted by post. Accordingly, for

all these reasons, I would not be prepared to hold that a postal packet for the purposes of the 1983 and 1993 Acts must be read as

limited to postal packets in the course of transmission by post.

9 However, I fully agree with Charleton J. that even if this is a postal packet to which both s.84 of the 1983 Act and s.1 of the 1993

Act applies, that the opening of it by members of An Garda Síochána in the course of their duty in Store Street Garda Station, and

within the State, was not a breach of s.84 or an unauthorised interception. Section 84 permits the opening of a postal packet in a

number of circumstances, one of which is where such opening is permitted “under other lawful authority”. Section 177 of the Customs

Consolidation Act 1876 provides for a power to forfeit prohibited goods. Section 14(1) of the Post Office (Parcels) Act 1882, provides

that “the provisions of the Acts for the time being in force relating to the Customs … shall apply to goods contained in foreign, parcels

… and goods may be examined, seized and forfeited and the officers examining and seizing them shall be protected”. These sections

expressly give officers of Customs and Excise authority to examine, seize and forfeit any prohibited goods, which must include

controlled drugs. The next step is that s.5 of the Illicit Distillation (Ireland) Act 1857 provides that members of the Constabulary (and

now therefore members of An Garda Síochána) “shall have, use, and exercise all the powers and authorities, and have and possess all

the privileges, granted to officers of Excise … and have and possess all the privileges, which are or may be exercised, had, or

possessed by any officer of Customs under the Customs Consolidation Act, 1853, or any other Act now in force or hereafter to be

passed, in relation to the Customs, so far as relates to any seizure, detention or prosecution which may be made or had under any

such Act or Acts and shall be deemed and considered to be officers of Customs for such purposes”. Although the learned trial judge

doubted that other lawful authority had been shown, I am satisfied from the transcript that sufficient reference was made to these

provisions in the trial court. I fully agree with Charleton J. that there is an important distinction between powers of compulsion

exercised in relation to citizens and other individuals, and powers of seizure and interception of inanimate objects. There is no

requirement of incantation of a particular power before a package can be opened. A package cannot decide whether to submit or not.

Nor is it necessary that the power be in the mind of the relevant garda at the time. The only question is whether what was done was

lawful. That is answered by an analysis of the relevant provisions of the customs Consolidation Code as applied to members of An

Garda Síochána. If Inspector Carolan had been prosecuted for the offence under s.84, he would have been able to establish a valid

defence that he was acting under lawful authority, although in any such prosecution it might not have been necessary to get to that

point: the prosecution would not have been able to exclude the defence.

10 In such circumstances, there was no illegality in the opening of the packet. It followed that the sequential argument advanced by

the respondent ought to have failed. Accordingly, it is not necessary to consider here whether, if it had been established that there

had been a breach of s.84 or an unauthorised interception, that would have prevented the information obtained as a result thereof

from being relied on to obtain a warrant, and thus, in turn, invalidated the warrant. (See D.P.P. v. Cash [2010] I.R.609). Similarly, it is

not necessary to consider what consequence for the admissibility of evidence would follow from any such potential invalidity. (See

D.P.P. v. J.C. [2015] I.E.S.C. 31). Finally, I should say that while this case was not argued on the basis that there was any right of

privacy involved in the opening of a postal package addressed to a fictitious addressee and received by an individual, I would not wish

to be taken as accepting, at least without more extensive argument, that no constitutional right was involved here. That may be

important in other cases. However, since it is clear that if the above analysis is correct there can have been no improper interference

with any possible privacy interest, it does not require to be determined here.