The Court of Criminal Appeal has refused an application by David Timmons to amend his appeal grounds and rely on a later Supreme Court ruling about search warrants. It held that his appeal against conviction had already been finally determined, even though his separate appeal against sentence remained outstanding.
Timmons was convicted by a jury in the Dublin Circuit Criminal Court on 12 December 2008 of conspiring to possess a controlled drug for sale or supply. He was sentenced to eight years in prison on 28 January 2009 and appealed both conviction and sentence.
With the parties’ consent, the Court of Criminal Appeal considered the conviction appeal first. In April 2011 it dismissed the application for leave to appeal on all grounds. The sentence appeal was left for later consideration and had not been decided when Timmons brought the present motion.
The motion followed the Supreme Court’s 2012 decision in Damache, which declared unconstitutional a law allowing a qualifying senior Garda to issue certain search warrants, including warrants for private homes, without independent authorisation. Timmons sought to add grounds arguing that evidence obtained under such a warrant should not have been admitted at his trial.
The warrant in Timmons’s case had been issued by a superintendent involved in the investigation. A search of his home produced mobile phones and a notebook. Information from those items was admitted over objection and used by the prosecution. The Court of Criminal Appeal noted the Director of Public Prosecutions’ submission that this evidence was relevant but not central to the prosecution case, and that it had not materially influenced the jury. The court did not decide the motion on that point alone.
At trial and in the original appeal grounds, the defence had challenged the admissibility of the material on other grounds. The appeal ground then relied on did not challenge the warrant’s validity or the constitutionality of the law authorising it, the court said. The constitutional point had not been raised in the criminal proceedings or in separate proceedings before the motion.
The court said the decisive question was whether the conviction appeal was still live. It ruled that the 2011 decision had conclusively disposed of that appeal. The unresolved sentence appeal did not keep the conviction issue open or permit it to be reopened because of the later Damache decision. The court dismissed the application to amend the grounds; it did not determine the outstanding sentence appeal in this judgment.