Saturday 21 April 2018

Man who 'was present with pitchfork' when gardaí arrived at his dwelling with a warrant moves to appeal conviction

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Ruaidhrí Giblin

A man who was “present with a pitchfork” when gardaí arrived at his dwelling with a warrant has moved to appeal his conviction for harrassment and making a demand with menaces.

Noel Smith otherwise Smyth (53), of Manomolin, Gorey Co Wexford, had pleaded not guilty at Wicklow Circuit Criminal Court to harassment, making an unwarranted demand with menaces and money laundering between April and June 2009.

He was found guilty by a jury and sentenced to nine years imprisonment with the final three suspended by Judge Gerard Giffin on April 7, 2014.

The prosecution's case was that a named individual got drugs from Noel Smith fifteen or so times.

Barrister Paul Murray, for the Director of Public Prosecutions, told the Court of Appeal today that the named individual said he had come under pressure from Smith to pay for those drugs and in the summer of 2008 he went to his mother to get money from her.

Mr Murray said the named individual went into rehab in March 2009 for over a year and he had no access to the outside world. His relative gave evidence that she began receiving threatening phone calls from Smith, Mr Murray said.

Counsel for Smith, Remy Farrell SC, who appeared along with Edmund Sweetman BL, told the Court of Appeal that when the gardaí arrived at Mr Smith's dwelling with a warrant, he was “present with a pitchfork”.

It could be inferred that Smith was not consenting to further entry without a warrant, Mr Farrell said.

A detective sergeant, now retired, had arrived at Smith's dwelling with a warrant issued under section 29 of the Offences Against the State Act, which the Supreme Court subsequently ruled was repugnant to the Constitution.

Three weeks before the trial the retired garda officer penned a statement of “dual purpose” asserting that he had a “section 6” power to arrest but the officer didn't assert or invoke the relative statutory power at the time, Mr Farrell said.

Mr Farrell said the detective sergeant was keen to point out at trial that Mr Smith was free to come and go for an hour but that fact was entirely impossible to reconcile with the intent to arrest,

It was a legal confection, Mr Farrell said, manufactured after the event.

The contemplation of police powers of entry to a dwelling being invoked silently and internally was wholly obnoxious to Irish law, Mr Farrell said.

Mr Justice George Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, said the court would reserve judgment.

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