The Court of Criminal Appeal has sent a cocaine prosecution involving a controlled delivery to an Athy address back for trial, quashing a Circuit Court order that had discharged Ibrahim Lawel from the indictment.
The court ruled on 29 October 2014 that the Circuit Court had gone beyond the limited scope of a summary dismissal application under section 4E of the Criminal Procedure Act 1967. It said the questions about the package search and whether evidence obtained from it should be admitted required a fuller assessment at trial.
The indictment charged Mr Lawel with possessing cocaine for supply, possessing cocaine with an alleged value of at least €13,000 for supply, and unlawful possession. The charges related to a package delivered on 25 May 2011 to 50 Marina Court, Athy. The prosecution alleged the package contained cocaine worth €1.75 million.
According to the judgment’s account of the evidence, Customs Officer Deirdre Furlong examined the parcel at Dublin Airport, used a probe to remove powder and carried out tests. The package was then delivered under controlled conditions to the Athy address. Mr Lawel signed for it using the name “Tony Tuto”, and the parcel was later seized in Navan, Co Meath. The judgment also recounts interview notes in which Mr Lawel said he had accepted the delivery for a friend.
At the 2012 section 4E hearing, the defence argued that the interception, detention and seizure were unlawful and breached Mr Lawel’s constitutional rights. The Circuit Court judge agreed that the actions were unlawful, found that Mr Lawel had proprietary rights in the parcel and discharged him from the indictment.
The appeal court held that the package examination amounted to tampering under the Postal and Telecommunications Services Act 1983, and that the statutory provision relied on for inspection applied to goods intended for warehousing, which this parcel was not. It also said the required ministerial authorisation for interception was absent.
But the court distinguished illegality from a breach of Mr Lawel’s constitutional privacy rights. It held that the fictitious addressee could not hold or confer rights, and that Mr Lawel could not claim a proprietary or privacy right through that non-existent person. The court said the trial judge had therefore erred in finding a constitutional breach.
That did not determine whether the evidence should ultimately be admitted. The appeal court said the trial court would need to consider whether to exclude evidence obtained through the unlawful search, including a balancing exercise that could not be carried out on the section 4E motion. It quashed the discharge order and directed that the case proceed to trial; it did not decide the charges or the eventual admissibility of the evidence.