The Court of Criminal Appeal has quashed Sunny Idah’s convictions for soliciting the unlawful importation of controlled drugs and ordered a retrial, after ruling that recordings from one day of a Garda operation should not have been put before the jury.
The judgment, delivered by MacMenamin J. on 23 January 2014, addressed only the admissibility of recordings and transcripts under the Criminal Justice (Surveillance) Act 2009. The court did not decide the remaining appeal issues or whether Gardaí could give oral evidence about their conversations with Idah at a retrial.
Idah was convicted by a jury on 3 April 2012 after a 16-day trial. The prosecution alleged that between 14 and 19 September 2010 he solicited two undercover Gardaí to travel to Brazil and return with cocaine. He was sentenced on 18 May 2012 to 12 years’ imprisonment, with the final year suspended, on one count, and 15 years, with the final two years suspended, on the other.
The conversations were recorded using a device worn by one undercover Garda and were transcribed for the trial. A District Court authorisation permitted surveillance equipment in a specified room at the Regency Hotel from 14 to 18 September. The meetings and calls took place in other locations as well as by telephone. For 19 September, a senior Garda officer issued an urgent approval for use of the device, but the Gardaí had not sought a judicial renewal or variation, despite the change in the planned travel date having been discussed on 17 September.
The appeal court found that the undercover officers’ face-to-face conversations with Idah were not conducted with the assistance of a surveillance device. Subject to other objections, the 2009 Act did not prevent the officers from giving oral evidence about what they had themselves heard and seen.
The court treated the recordings and transmissions differently: because they depended on the device, they amounted to surveillance under the Act. It upheld the trial judge’s decision to admit recordings from 15 and 17 September, finding no manifest error in the exercise of discretion available where there had been non-compliance with a valid authorisation.
But the court held that the 19 September approval was invalid. The evidence did not establish the required circumstances of urgency, and no reasonable explanation was given for failing to seek a further judicial authorisation. The statutory discretion to admit evidence despite non-compliance did not apply where there was no valid approval. The recordings and transcripts from that date should therefore have been withheld from the jury.
Because relevant inadmissible material had been put before the jury, the court said it had no alternative but to quash the convictions and order a retrial. Other appeal issues, including the valuation of the drugs, remained for a further hearing; the judgment did not resolve them.