The Supreme Court dismissed Joseph Behan’s appeal over a search warrant issued after a worker was shot during a robbery, holding that the superintendent who authorised the warrant was not involved in the investigation when he issued it.
The judgment delivered by Mr Justice Peter Charleton on 30 May 2022 is a dissenting judgment. Justice Charleton said his disagreement with the majority was not about the result. He agreed with the majority’s analysis that the proviso in section 9 of the Courts of Justice Act 1924 applied, and that the appeal should not succeed.
The appeal concerned a warrant issued under section 29 of the Offences against the State Act 1939, as amended. The provision allows a superintendent independent of an investigation to issue a search warrant in urgent circumstances, where there are reasonable grounds and it is impracticable to apply to a District Court judge.
The judgment described the urgency following the shooting: the injured worker survived with the help of a paramedic trained in battlefield responses; suspects were seen on CCTV apparently returning by bicycle to their dwelling; and investigators sought to test them for residues and DNA and to recover a firearm that was never found.
The superintendent who issued the warrant was contacted shortly after 1am on New Year’s Day 2019 by the superintendent in charge of the investigation. Justice Charleton said the issuing officer was not in charge of, or involved in, the investigation at the point he signed the warrant. Although his divisional duties meant he could later be informed about serious crimes and might offer advice or practical assistance, the judgment said the transcript did not show he was awakened and briefed about this shooting before he came in.
The trial judge had found that, when granting the warrant, the issuing superintendent was unaware of the investigation and relied on what had been put before him, including CCTV footage. Justice Charleton said the appellant had not shown that this factual ruling was wrong. He also noted that Behan’s counsel accepted the relevant time for assessing involvement was when the warrant was issued.
Justice Charleton added that even if the superintendent had been involved, the appeal would still fail under the proviso: in his view, a warrant would have been issued in the circumstances, and excluding the evidence would have been irrational. The supplied judgment does not set out the Supreme Court’s formal order or the majority’s full reasoning.