Lawyers for convicted murderer Patrick Quirke have told the Supreme Court that a search of his home in 2013 was unlawful because the warrant used was invalid.
The submission was made on the opening day of a Supreme Court appeal by Tipperary farmer Quirke against his conviction for the murder of Bobby Ryan in 2011.
The Supreme Court agreed to hear an appeal in the case because there are two matters of general public importance involved which may arise in other criminal trials and would benefit from clarification.
The issues relate to the validity of a search warrant and the DPP's discretion to call witnesses at trial.
In November last year, the Court of Appeal dismissed Mr Quirke’s appeal against conviction on all 52 grounds.
That court found there was nothing to cause doubt about the safety of the verdict or the fairness of the trial.
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Quirke is serving a life sentence imposed after his conviction in 2019 following a 15-week trial. He had denied any involvement in the murder.
The trial in 2019 heard he murdered his love rival Mr Ryan, a DJ known as Mr Moonlight, so he could rekindle an affair with farm owner Mary Lowry.
Among the items seized with the warrant was a computer which formed a key part of the evidence against Quirke after it was found to have been used for internet searches on human decomposition and DNA.
The Court of Appeal ruled that while the absence of a reference to computers was sub-optimal it was not fatal to the validity of the warrant.
Addressing the issue of the search warrant at the opening of the appeal this morning, Senior Counsel Bernard Condon argued the District Court judge who issued the warrant was not given all the necessary information.
Quirke's lawyers argue there was a specific failure to inform and expressly include the intention to seize computers containing the personal data of an entire family and this avoided scrutiny and safeguarding of constitutional rights.
Mr Condon told the seven-judge Supreme Court the search warrant for Quirke's home listed a number of items including clothing, a mobile phone, keys, jewellery, a murder weapon and "any other relevant evidence".
He said there was no mention of computers despite the fact that this had been discussed by investigating gardaí when preparing to apply for the warrant.
Mr Condon said for search warrants to be lawful there must be prior judicial scrutiny and proportionality.
For judicial discretion to work there must be a duty of candour and full disclosure, especially where computers are concerned, he said.
It was not enough to state "any other evidence" on a warrant where computers had been contemplated by gardaí before applying for the warrant, he said.
While the court of appeal found the warrant used was "sub-optimal" but not fundamental, it was important to analyse why the appeal court found the warrant to be sub-optimal, he said.
Mr Condon said it was their submission that the issue of the warrant was fundamental because it essentially engaged two competing issues, the investigation of crime and personal rights under the constitution.
He said the District Court judge who approved the warrant was "shorn of her entitlement to conduct a proper analysis because she was not given the full information".
Counsel for the DPP Michael Bowman said the evidence at the trial showed it was "always in the mind" of investigating gardaí to look for computers which debunked the concept of a deliberate lack of candour in the application for the warrant.
Mr Bowman also said there was no requirement for a definitive list on a warrant and there was no deliberate lack of candour.
The appeal is expected to last two days. The court will hear submissions from lawyers for Quirke, the DPP, the Attorney General and the Irish Human Rights and Equality Commission. Members of Bobby Ryan's family were in court this morning.
Mr Ryan's remains were found in a disused underground tank on Mary Lowry’s farm almost two years after he went missing.
He had been in a relationship with Ms Lowry and was last seen alive as he left her home to go to work early on 3 June 2011.
The prosecution said Quirke staged the discovery of the body as he was about to give up his lease on the farm and feared he would be found out.
The second issue to be considered by the Supreme Court is the discretion of the DPP to call witnesses in a case, in particular expert witnesses.
The Court noted that Dr Khalid Jabbar, the former Deputy State Pathologist, had given an opinion that the death of Mr Ryan was the result of blunt force trauma.
Dr Jabbar had not attended the crime scene and was not available as a prosecution witness in the trial.
His report and findings were reviewed within the Office of the State Pathologist by Professor Marie Cassidy, the State Pathologist and by two colleagues.
They were unanimous in the view that the cause of death was blunt force trauma, likely due to vehicular impact trauma.
At a later stage, Professor Jack Crane, the State Pathologist in Northern Ireland, also furnished an opinion for the prosecution.
He was also of the view that the cause of death was blunt force trauma; however, he did not believe that the evidence was there to support the conclusion of vehicular impact trauma.
The defence felt that in light of the differing opinions, the prosecution should call both experts Dr Crane and Dr Michael Curtis on behalf of the Office of the State Pathologist.
The prosecution refused and the defence called Dr Curtis as a witness. However, the defence team later argued that the prosecution later "took advantage" of the situation to explore theories for which there was no evidential basis.
The court of appeal ruled that while the manner in which the pathology witnesses were called was "sub-optimal" and "unusual" it rejected those grounds for appeal.
Counsel for the Irish Human Rights and Equality Commission Ronan Kennedy SC submitted that where on the date of the application for a search warrant there is an intention to seize electronic devices which contain personal data there is a duty to inform the judge of that.
Mr Kennedy said the rationale for that was that " it is at this point the intrusion is authorised".
He said the issue was how were privacy rights with regard to electronic equipment to be accommodated alongside the important community aspect of the detection and prosecution of crime.
It was the commission's submission that weak procedural protections exist in this jurisdiction compared with others.
He said there were markedly different privacy issues at stake when it comes to searches of electronic devices which was well recognised in case law.
The argument that searches of data stored on electronic devices like computers or phones was indistinguishable from physical items had been rejected in case law, he said.
Lawyers for Quirke also challenged the DPP’s discretion when it comes to calling expert witnesses.
Senior Counsel Lorcan Staines SC said Quirke had been prejudiced by the DPP’s decision not to call Dr Michael Curtis from the State Pathologist’s office.
He said this was because Dr Curtis’ evidence would have "undermined the prosecution’s theory" as to the cause of Mr Ryan’s death. He said the DPP was not allowed to be "partisan or tactical2 in its choice of witness.
Dr Curtis had believed Mr Ryan could have died from blunt force trauma caused by an impact from a vehicle.
Mr Staines said the defence had been forced to call Dr Curtis as a witness, making the defence have to engage with pathology evidence when Quirke’s instructions were that he had nothing to do with the killing.
He said the prejudice was in the "optics of the trial" for the jury, in circumstances where the pathologist was the only defence witness called, and Quirke himself did not give evidence.
He agreed with Mr Justice Peter Charleton, who said: "What you are saying is, it makes you look guilty."
In response, counsel for the Attorney General Paul Gallagher SC said the case set out by Quirke was "legally unsustainable" and ignored the facts of the case. He said it was inconsistent with the law and ignored the protections that exist in our laws.
The warrant entitled gardaí to enter and search a premises and this should not be conflated with the seizure of particular items.
He said there was no limitation on seizing items if it could be established that there was a reasonable belief the item was evidence of or related to the commission of a crime.
The reasonable belief was a higher threshold to the reasonable suspicion required for the warrant, he said adding: "The protection is in the fact that a reasonable suspicion gets you into the premises but here is a further threshold of reasonable belief and it would be odd if the legislature said 'actually you can't take it’, this is evidence in relation to the commission of a crime and you can’t take it."
It would be an enormous restriction on the ability to investigate crime if this was the case he said.
He said additional protections were in place in this jurisdiction under GDPR which prevented a "carte blanche" search of computers.
The hearing continues tomorrow.
