A decision to admit evidence of a mobile phone conversation about drugs between a Garda detective and another man led yesterday to the quashing of a conviction of a man who served a 2½-year sentence for conspiracy to obtain drugs.
The Court of Criminal Appeal quashed the conviction of Mr Joseph Dillon and said that as he had completed his sentence, it would not order a retrial.
The court said the trial court had wrongly admitted evidence of a conversation between a detective inspector and another man on a mobile phone, which gardaí had earlier confiscated from two men suspected of drugs activities. The gardaí believed the phone was likely to be used for arranging a drugs transaction. The detective admitted using a false name during the conversation which related to drugs matters.
The court said the evidence was admitted on the basis of an incorrect decision by the trial judge that the act of listening to the conversation did not constitute an "interception" of a phone conversation as set out in section 98 of the Postal and Telecommunications Services Act 1983 - introduced following the a major political controversy over the tapping of two journalists' phones.
Mr Dillon (39), Keleely, Co Limerick, was sentenced at Limerick Circuit Court to 2½ years on April 3rd, 1998, for conspiracy to obtain possession of drugs.
The trial was told that after the mobile phone was confiscated, the detective had answered a number of calls to it. One was from a man with a Limerick accent who asked for Nicky and asked had Nicky the gear ready for him. The detective said his name was Mick and asked the caller his name. The caller replied Joe. The detective asked how much again he was looking for and also asked whether he had the "grade", meaning cash. A conversation took place about a meeting place.
Yesterday, granting Mr Dillon's appeal, Mr Justice Hardiman said that under the 1983 Act, listening to a phone conversation without the agreement of the person making the call and the person intended by the caller to receive the message was unlawful.
The onus to prove otherwise in this case lay with the prosecution. In this case, it seemed to the court that in adopting a false name, the detective knew that Joe would not have spoken to him had he known his true identity.
While the detective had acted to facilitate the detection of a serious crime, the 1983 Act made no distinction between calls for criminal purposes and other calls and created no general exception in favour of the gardaí other than those which did not apply here.
The court also noted the Act may not specifically address the position of a garda who lawfully came into possession of a phone intended to be used for criminal purposes.