Director of Public Prosecutions v O'Brien

THE HIGH COURT IN THE MATTER OF AN APPEAL BY WAY OF CASE STATED PURSUANT TO SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS AMENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 2025 No. 1626 SS [2026] IEHC 259 BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS PROSECUTOR / RESPONDENT AND REECE O’BRIEN ACCUSED / APPELLANT JUDGMENT of Ms. Justice Mary Rose Gearty delivered on 30th April, 2026 1. Introduction 1.1 This is an appeal by way of case stated as to the effect of a failure to formally prove a search warrant in the prosecution of a charge of obstruction of a peace officer acting in the course of his duty. A sole garda witness gave evidence to the District Court that the Appellant obstructed him while he was executing a search warrant in the Appellant’s home. The warrant was not produced, nor was it put in issue until the prosecution case had closed. 1.2 Proof that the officer was acting in the course of his duty is an element of the actus reus of this offence and the District Judge should have granted a direction to acquit as there was insufficient evidence of any right to search the Appellant. 1 2. Case Stated Procedure, Facts and Questions 2.1 Pursuant to section 2 of the Summary Jurisdiction Act of 1857, as amended, after the hearing and determination of a summary case, a party who is dissatisfied with a decision of the District Court on the basis that it is erroneous in law may ask the Judge to state a case for the opinion of the High Court. District Judge John Hughes acceded to the application of the accused, now Appellant, to ask this Court for an opinion on the issue of law arising. The facts and grounds of the determination have been set out as required under the Act and three questions have been prepared for the consideration of this Court. 2.2 The summary of the facts reads as follows: On 17th of January 2024 [Garda Sheridan] executed a search warrant under section 26 of the Misuse of Drugs Act of 1977 at [an address in Dublin]. During the course of effecting this search, the appellant was brought to a separate room [in the property] to be searched. Garda Sheridan gave evidence that the appellant obstructed him and resisted a search of his person. Upon cross-examination it was put to Garda Sheridan that Mr. O’Brien did not obstruct the search and that it was Garda Sheridan and not Mr. O’Brien who had been aggressive. It was put to Garda Sheridan that he had used excessive force in the search of Mr. O’Brien. Garda Sheridan did not accept the matters put to him. It was put to Garda Sheridan that he had pepper sprayed the defendant which he accepted. 2.3 After the prosecution case closed, the Judge was asked to direct an acquittal on the basis that there was insufficient proof that the garda witness had been acting in the course of his duty. The prosecution resisted this application on the basis that the question of lawful entry had not been put in issue by the defence. 2.4 The questions asked of this Court are: (a) where a member of An Garda Síochána alleges that an obstruction offence contrary to section 19(3) of the Criminal Justice (Public Order) Act, 1994 takes place in a constitutionally protected dwelling is there an obligation on the prosecution to prove the lawfulness of the entry and search? 2 (b) if the answer to (a) is yes and the prosecution asserts that the entry to the constitutionally protected dwelling and the search of persons therein is on foot of a warrant, is oral evidence of the existence of a warrant adequate evidence of a statutorily authorised written warrant under section 26 of the Misuse of Drugs Act 1977 and therefore sufficient to establish the lawfulness of the entry? (c) if the answer to (b) is no, was I correct to convict the appellant of an obstruction offence within his dwelling? 3. Obstruction of a Peace Officer and the Core Argument 3.1 The Appellant was charged with the offence of obstructing a peace officer, which is a summary offence under section 19(3) of the Criminal Justice (Public Order) Act of 1994, as amended by the Criminal Justice Act of 2006. 3.2 The relevant portions of the section (as amended) read as follows: “19 (3) Any person who resists or wilfully obstructs or impedes— [(a) and (b) involve medical personnel] (c) a peace officer acting in the execution of a peace officer’s duty, knowing that he or she is or being reckless as to whether he or she is a peace officer so acting … shall be guilty of an offence. (4) [sets out the penalties] (5) The provisions of this section are in addition to and not in substitution of any provision in any other enactment relating to assault or obstruction of a peace officer. (6) In this section— … “peace officer” means a member of the Garda Síochána …” 3.3 The law, therefore, prohibits the obstruction of a member of An Garda Síochána who is acting in the execution of his duty. The actus reus (literally, the guilty act) has three elements, each of which is an essential element of the completed offence: (i) an act of obstruction (ii) the status of the victim as a peace officer (here, a member of An Garda Síochána) who is, as a further essential element, (iii) acting in execution of his duty. The mens rea (guilty mind) is recklessness, in that the accused must either know or have adverted to the possibility that 3 the person he is obstructing is a peace officer acting in the execution of his duty but continued in his obstruction regardless of this fact. The core rationale for this decision is that the actus reus includes the fact that the officer is acting in the execution of his duty, which requires proof that he has a valid warrant. 3.4 Defence Counsel in the District Court submitted that the garda evidence concerning the existence of a warrant constituted hearsay. Counsel before this Court did not adopt the same approach. The witness was entitled to give evidence that he had a document and that he understood that it permitted him to lawfully enter the address in question. This is not hearsay; it is direct evidence of what the witness understood the document to be. Hearsay is the repetition of a declaration that was made by a person who is not in court to defend or explain that declaration. Oral evidence is not the best evidence of a warrant, however, which is normally proven by production of the document. 3.5 The same issue arose in Weir v. D.P.P. [2008] IEHC 268 and O’Neill J. concluded, at paragraph 28, that “The rule envisages that secondary evidence of the contents of a document may be given by means of oral testimony, but only in exceptional circumstances.” There is no need to explore this issue further as the only reason the warrant was not produced was because it was not sought, not because there were exceptional reasons which explained the omission. The warrant was produced after the case closed but, as the parties, agreed, the issue for this Court is the state of the evidence at the close of the prosecution case. 4. The Prosecution Evidence 4.1 A transcript of the hearing was available. The sole prosecution witness was Garda Sheridan. The direct evidence of the garda witness was as follows: Judge, on the 17th of January 2024 at approximately 23.09pm at [address] Dublin 8, I executed a warrant pursuant to section 26 of the Misuse of Drugs Act 1977. Present at the property were Mr. O'Brien, the accused, his father and I believe his girlfriend. It was explained the contents of the warrant, that each person in the premises would be 4 subject to a search as per the warrant. I removed Mr. O'Brien from the main sitting room of the premises and brought him to a bedroom for the purpose of search... Mr. O'Brien was informed to empty out his pockets. It was again explained that as he was present at the property, he was subject to a search also. Mr. O'Brien stepped towards me with his hand in his pocket and refused to engage. He then pushed me back. I then explained to Mr. O'Brien that it was an offence to obstruct a member of An Garda Síochána while conducting his lawful duties under section 19 of the Criminal Justice (Public Order) Act 1994 the penalties of which were explained to Mr. O'Brien. Mr. O'Brien was then instructed again to empty out his pockets as he was to be searched. Mr. O'Brien violently resisted. He pushed me back. A struggle ensued. A colleague came to my assistance. Mr. O'Brien was pepper sprayed and handcuffed and restrained. 4.2 As noted in the summary provided by the learned Trial Judge, the garda witness was then cross-examined in relation to injuries caused to the Appellant and he was not asked to produce the warrant, nor was it challenged in any way. 4.3 The District Judge found that the warrant was not a necessary evidential proof in this case. He was satisfied that the cases of Cumberbatch v. The Crown and Ali v. The Department of Public Prosecutions, [2009] EWHC 3353 (Admin), which involved assaults on peace officers, allegedly committed during the arrest process, could be distinguished on their facts. These cases explored attempts to resist arrest or assaults on a peace officer where an initial arrest was unlawful. The two cases are discussed further below. Here, the unchallenged evidence was that the garda was executing a search warrant, and the Judge was satisfied that the witness was acting in the course of his duty by carrying out that search. 5. Actus Reus – Proof of Every Element of the Offence 5.1 The crux of this case is that the offence constitutes obstruction of a peace officer who is acting in the execution of his duty. The lawfulness of his actions is an element of the actus reus and, as such, the officer’s authority to act is an essential proof. Consider whether a garda, entering a dwelling house in the belief that 5 he has a valid warrant, is acting in the execution of his duty. If the warrant is invalid, he is not, no matter what he believes. Proof of the warrant is required, therefore, and the burden of proof is carried by the prosecution. The householder is entitled to resist an unlawful search by using reasonable force. Article 40.5 confirms that the dwelling of every citizen is inviolable and shall not be entered save in accordance with law. This right is vindicated by strict laws in respect of obtaining and executing search warrants. In this case, while it is not the usual case in which the warrant is formally proved in order to admit the fruits of a search, it is nonetheless essential to prove lawful entry and search. 5.2 The principle is a basic one. As set out in the most recent edition of Dr. Walsh’s text, Criminal Law at paragraph 39-52: “There is no constitutional issue around requiring the accused to adduce evidence… [or] to raise a reasonable doubt in respect of an element or aspect of an offence in certain circumstances. This may be permissible where the prosecution has proved beyond reasonable doubt other elements of the offence sufficient to raise a presumption that the other necessary element has been satisfied. Equally, it may be permissible where the prosecution has proved beyond a reasonable doubt that the accused’s conduct satisfies the core elements of the offence, where the definition of the offence includes provision for the accused to avoid liability by establishing that he has a defence or reasonable excuse for that conduct. In any of these situations, it seems that there will be no constitutional impropriety, as long as the burden of proof remains on the prosecution to prove the core elements of the offence. Requiring the accused to raise no more than a reasonable doubt over some aspect once the prosecution have proved the core elements necessary to bring it into play is not considered to constitute an improper encroachment on the presumption of innocence. It may be a different matter when it is sought to attach an obligation on the accused to prove on a balance of probabilities (or higher) that an element of the offence has not been satisfied.” [My emphasis] 5.3 In C.W. v. The Minister for Justice, [2023] IESC 22, a case which involved the burden of proof on the defence in a defilement trial, O’Donnell C.J. sets out 6 some general principles of criminal law in this jurisdiction, noting the eclectic development of the law in respect of legal and evidential burdens, and concludes (at para 22): “… it is true as a general statement that in a criminal trial that it is for the prosecution to prove each element of an offence beyond reasonable doubt. However, that principle does not mean that in no case may a burden be placed on to the defence in relation to some particular aspect...” 5.4 At para 93 in the same judgment, the Court returns to the topic of burdens: “Perhaps the first point to make is that any “burden” can only be discharged by evidence, whether that evidence is produced by the party carrying the burden or by another party. It is also necessary to be clear about the fact that in any given case different parties may bear different burdens, for different purposes, at different times. 94. A “legal” burden means the burden fixed by law on a party to satisfy the finders of fact as to the existence or non-existence of a fact or matter. In some of the authorities this is called a “persuasive” burden, because it means that the party in question must persuade the finders of fact that the fact or matter does, or does not, exist. When the legal/persuasive burden is on the prosecution on any issue it must be discharged by proof beyond reasonable doubt. In a criminal trial, the prosecution has the burden of proving the guilt of the accused, and that burden never shifts. Where a legal/persuasive burden is placed on the accused on some other issue it is never required to be discharged by proof to that level. In some cases … the burden on the defence must be discharged on the balance of probabilities. In other cases where a burden is imposed on the defence by statute (e.g., as in Smyth and Forsey) it may be discharged by proving a reasonable doubt. This will be described here as a Smyth burden. 95. Since a burden can only be discharged through the production of evidence, the legal/persuasive burden of proving guilt means that the prosecution must adduce sufficient evidence for a properly charged jury to convict (if, of course, they accept the evidence beyond reasonable doubt). If the evidence is insufficient for that purpose – for example, if there is no evidence capable of being accepted as establishing a specific 7 element of the case – the trial judge will find that the burden has not been discharged. The accused will be acquitted by direction. 5.5 The Chief Justice went on to describe the case of McNally v. Ireland [2009] IEHC 573, where the High Court considered the constitutionality of a Smyth burden imposed on a vendor of Mass cards in contravention of the Charities Act of 2009. MacMenamin J. found that it would be impossible for a prosecutor to prove that the accused did not have an arrangement with one of approximately 7,000 bishops or provincials, while the existence of such an arrangement would be easy for the accused to prove. As O’Donnell C.J. noted: “There was a rational connection between the means chosen and the objective of the legislation. The measure was a minimal, attenuated intrusion into the right to trial in due course of law and no other means had been suggested by which the object could have been attained.” 5.6 The issues of the persuasive burden and ease of proof arise on these facts: in this language, rather than ask if the Appellant was obliged to put his case to the prosecutor, it is more useful to ask if the prosecutor was required to prove beyond a reasonable doubt that the peace officer was acting in the execution of his duty. Was the evidence within the knowledge or possession of the prosecutor? Was it open to the defence to seek a direction on the basis that the evidence established only that there was a warrant and not a valid warrant? The questions, as posed, are wide enough to encompass these issues and are not confined to putting the defence case in cross-examination, nor is that the most useful lens through which to approach the issues arising. 5.7 In an appropriate case one might analyse how the acts said to be obstructive might otherwise be characterised (e.g. as acts of defence or as a free-standing assault) but that can only arise if excessive force is used, which has not been raised in this Court. This is explored further, below. 5.8 The officer’s belief or secondary evidence about the warrant is not sufficient to justify entry and search. In fact, this witness gave evidence that he had a warrant and that he explained it to those present. He did not state that he had 8 shown it to them or that it was a valid warrant. These are not matters that the defence must put in issue but matters that the State must prove. There is no presumption at play, each element of the offence must be proved beyond a reasonable doubt, including the fact that the officer was acting in the course of his duty when carrying out the search. Considering the language used in C.W., above, and applying that logic to the converse case where the persuasive burden is on the State, it is a relatively easy matter to produce the document in court in order to prove that the officer was acting in the course of his duty. 6. Lawful authority to search and obstruction in English Case Law 6.1 This rationale is consistent with the cases of Cumberbatch v. Crown Prosecution Service and Ali v. D.P.P., [2009] EWHC 3353 (Admin), which were cited in the District Court. They are useful comparators. Mr. Ali was arrested by Police Constable Kenney in a shopping centre. It later emerged that this arrest was unlawful and that there were no reasonable grounds for arrest. A crowd gathered and some became abusive. Two Police Officers came to the assistance of PC Kenney in what was described as an ugly scene. PC Kenney appeared to be attempting to arrest and restrain Mr. Ali who was resisting him. These Officers did not assert any view as to whether Mr. Ali was committing an offence. The appellant was entitled to resist arrest. Lawson J. quoted Lord Simonds in Christie v. Leachinsky [1947] AC 573, at p 591: “I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of that right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful”. 6.2 Cumberbatch is more closely aligned with the current case in terms of its factual matrix. Ms. Cumberbatch objected to the manner of arrest of her father under mental health legislation and was restrained by one of the officers involved. Ms. Cumberbatch lunged at this officer, PC Richardson, scratching the 9 policewoman’s throat sufficiently deeply as to leave minor scarring. Ms. Cumberbatch argued, at her trial for assaulting a police officer in the execution of her duty, that proof of a valid arrest under the mental health legislation was required; if PC Richardson was acting in furtherance of an unlawful arrest, she could not have been acting in the execution of her duty. 6.3 The Crown Court convicted as the accused had been shouting in a public place and there was “a clear risk of violence being inflicted or a breach of the peace being occasioned”. The Court did not consider the issue of lawfulness of the arrest, therefore. The Divisional Court, on appeal by way of case stated, addressed the following question: If the arrest of Mr Cumberbatch was unlawful, was PC Richardson acting in the execution of her duty? 6.4 That Court considered the issue that Ms. Cumberbatch was protesting at the mode of her father’s arrest as he was placed in a police car. Her motivation, according to Lloyd Jones J., was irrelevant: What matters is whether PC Richardson was acting in the course of her duty in restraining [Ms. Cumberbatch]. He concluded that the officer was not acting in the course of her duty as the arrest had no lawful basis and, at paragraph 36, that: “The position would have been different if Miss Cumberbatch had acted in a way which exceeded a reasonable response to the unlawful arrest of her father. In those circumstances it seems to me that PC Richardson would have been acting in the execution of her duties in restraining her.” 6.5 There is no evidence of excessive force in this case. The garda witness was cross-examined about excessive force and denied that he used excessive force. He was not asked about excessive force used by the Appellant, albeit his direct evidence of a push and a struggle. If the garda witness was not acting in the course of his duty, the Appellant was entitled to resist an unlawful entry and search. To prove beyond reasonable doubt that the search was lawful the prosecution must produce the warrant. Evidence short of that, such as the oral evidence “I had a warrant”, with no more explanation or reassurance, cannot be evidence beyond a reasonable doubt as to that warrant’s validity. 10 7. Irish Case Law 7.1 The Irish case law is similar in effect to the English cases which were cited to the District Judge and has the advantage of being underpinned by various constitutional guarantees including the rights to liberty, inviolability of the dwelling and trial in due course of law. Most of the following cases were not cited to the District Judge but this is invariably the kind of case in which the time afforded to trials is much shorter than that available in this Court. 7.2 In D.P.P. v. McCreesh [1992] 2 IR 239, the Supreme Court considered an allegation of refusing to provide a sample under the Road Traffic Acts. The gardaí had followed this accused home. The relevant request was made after Mr. McCreesh was arrested in his garden, having told arresting gardaí that they were trespassing and must leave the premises. Mr. Justice Hederman held: “…once the lower Court had found as a fact that Mr McCreesh had not given leave or licence to the garda to enter the driveway the garda was a trespasser. Having decided that the arrest was not a lawful arrest it followed, as the only logical consequence, that any requirement made pursuant to s. 13 for a blood or urine specimen was not a lawful requirement and that the failure of Mr McCreesh to provide such sample was not and could not be an offence.” 7.3 In D.P.P. v. Noonan [2025] IESC 22, the issue was whether gardaí, having lawfully seized a car being driven without tax or insurance, are entitled to open the boot of the car. Gardaí had found a large quantity of drugs in Mr. Noonan’s car boot. The Supreme Court ruled (Charleton J. and Hogan J. outlining different reasons for reaching the same conclusion) that the gardaí were entitled to do so. They were entitled to drive the car and open the boot. Both judges referred to the rule of law imperative and Hogan J. noted that any common law power asserted must ‘be “on the books”, so that, generally speaking at least, the common law power in question has a recognizable ancestry in the case-law’. 7.4 Noonan raises a different issue: the gardaí were entitled to take Mr. Noonan’s car. The initial action was lawful, but an issue arose as to the extent of their 11 rights thereafter. Here, the initial action was only put in issue when the case closed: was the garda entitled to be in the house? Or, more specifically, was evidence that he had a warrant sufficient to show that he was lawfully present? 7.5 D.P.P. v. Steven Bennett [2016] IEHC 685, a decision of Mr. Justice White, was also a case stated by the District Court. It involved an allegation of resisting arrest contrary to s.19(3) of the Criminal Justice (Public Order) Act, 1994. There, Mr. Bennett argued that, as a citizen involved in a peaceful protest, he had a reasonable excuse for obstructing the car of the Israeli Ambassador for about 20 seconds. White J. held that the trial judge did not adopt a wrong view of the law and did not draw inferences which no reasonable judge could draw, having considered safety, security and sensitivity and found a risk to the Ambassador and a risk of provoking other unlawful acts in the circumstances. The officer was, therefore, entitled to arrest and any resistance was an offence. 7.6 The ratio in Bennett is similar to that of the Crown Court in Ali, where the prosecution argued that Mr. Ali created a risk that there would be a breach of the peace and that others might be harmed. The Divisional Court in Ali held that there was no factual basis for such a finding there as Mr. Ali had not taken part in any disorder, so he did not pose any such risk and, as his arrest had no legal basis, it was unlawful: Mr. Ali was entitled to resist arrest. There was a factual basis for the finding that Mr. Bennett posed such a risk, and he was, therefore, not entitled to resist. Neither case offers as close an analogy as Cumberbatch and the Irish case of Weir, which is discussed below. 8. Weir and the Fruit of the Poisoned Tree 8.1 The Respondent argued that the District Judge could be satisfied, in accordance with the evidence that the witness had a warrant, that he was acting on foot of that warrant when the search and the subsequent obstruction occurred. The implication in this submission is that the Judge could assume the warrant was 12 valid as it was not challenged. It was accepted that, if the search warrant had been challenged, the witness would have been required to produce it. 8.2 That argument was developed further in this Court. It was submitted that the warrant was not a formal proof as the case did not involve the “fruit of the poisoned tree” in the sense that the search warrant was the reason the witness was there but was not an essential proof as they were not seeking to adduce evidence of anything that was found. This argument must be rejected due to the specific elements of the offence of obstruction: the prosecution must prove beyond reasonable doubt that the acts of peace officers, in the course of arresting or searching a citizen, are done in execution of their duty i.e. with lawful authority. Proof of a warrant is not required only when one seeks to adduce evidence of the fruits of a search but it is also required to prove beyond reasonable doubt the lawfulness of entry or search generally. 8.3 While the evidence of what occurred in the house was not the fruit of the search warrant, as an item found in the search might be, the existence of a valid warrant is the only circumstance in which the peace officer is entitled to be in the house. This is the state of events that must be justified by law. In such a situation, the warrant is essential to prove that he was acting in the execution of his duty. If he is not entitled to be there, he is not entitled to search the houseowner and there is no offence of obstruction if the householder resists. 8.4 Weir v D.P.P. [2008] IEHC 268 is the most useful comparator for this case. Mrs. Weir was stopped at a checkpoint and asked to provide a breath specimen. She was detained at Trim Garda Station, and a breath test was carried out. When prosecuted for offences under the Road Traffic Acts, the defence argued that the prosecution was required to prove that the garda witness had written authorisation to stop the vehicle. The District Judge held that oral evidence of authorisation was sufficient. The District Judge stated a case for the consideration of the High Court as follows: 13 “(a) Is oral evidence that a checkpoint is authorised, adequate evidence of the existence of a statutory written authorisation under s. 4 of the Road Traffic Act 2006, to stop the appellant's vehicle and demand from her a sample of her breath on 9th November, 2006, and therefore sufficient to establish the lawfulness of any such requirement? (b) If the answer to (a) is no, was I entitled to convict the appellant?” 8.5 Mr. Justice O’Neill held that, as there is no general power to stop cars, if the garda was not authorised to set up the checkpoint, he was not entitled to demand that the driver take a breath test. The fruits of any such test were, therefore, inadmissible. This case sits firmly within the jurisprudence upholding the importance of legal authority for any act interfering with liberty as emphasised by the Supreme Court in McCreesh. 8.6 Even more pertinently, the issue of whether a document had to be proved or was only required if challenged or requested arose in Weir. O’Neill J. rejected the latter proposition, and it is worth setting out the salient paragraphs: 30. It was submitted … that the appellant ought to have challenged the evidence of Garda Goodman by cross-examination and in the absence of such challenge, the learned District Judge was entitled to accept his evidence as sufficient to establish that there had been a valid authorisation for the purpose of [the Act]. 31. I cannot agree with that submission. If it were correct, in effect, the burden of proving an essential prosecution proof would have been shifted to the appellant, which of course cannot be right. In any criminal prosecution, an accused person is entitled at the close of the prosecution case to seek a direction of no case to answer on the basis that the prosecution has failed to prove the case against him. There is no onus on an accused person to intervene by way of cross examination to fill gaps in the prosecution case.” 8.7 The written authorisation was, therefore, an essential proof. This is in line with the case of Maher v. Kennedy [2011] IEHC 207, in which Hogan J. described an authorisation for a checkpoint as a document affecting legal rights which must speak for itself, finding that any evidence which seeks to explain or quantify it is not admissible. The same comments may be applied to a search warrant. 14 8.8 Weir is also an example of the “fruit of the poisoned tree” doctrine. If the checkpoint was not authorised, evidence collected in reliance on that breach of the constitutional right to liberty is inadmissible. Any such finding is now subject to the test in D.P.P. v. J.C. [2015] IESC 50, which is not relevant to the facts of this case and which I do not need to discuss here. In Weir, the test result is the evidence sought to be excluded and is a direct “fruit” of the tree. 8.9 At the hearing in this Court, Counsel debated a hypothetical situation in which Mrs. Weir resisted or assaulted an officer who purported to act pursuant to a written authorisation and stated in evidence that he was entitled to be there but (not having been challenged) did not produce the authorisation. That hypothetical posits that a free-standing tree is found near the poisoned tree, rather than constituting fruit from the tree in the form of evidence gathered from an illegal process. Is the fruit from both trees irretrievably poisoned? 8.10 The Respondent submits that this is the situation here: The Appellant obstructed the officer as a free-standing, new incident which happened to occur mid-search, and the issue of why the officer was there was not an essential proof but background evidence only, explaining his presence, in respect of which his unchallenged evidence was sufficient. 8.11 The analogy is helpful because it highlights the fallacy in the argument. The charge is one of obstruction of the search, not of assault or other criminal offence as in the hypothetical above. The clear terms of the offence and indeed the summary of facts confirms this: the officer must be acting in the execution of his duty and the essence of what is alleged is obstruction of a search. The unusual act is that of entering the dwelling place of a citizen and laying hands on him to search him. If charging that person with obstruction of the search, it is essential to prove lawful entry and authority to search. As elements of the actus reus, these are for the prosecution to prove. This answer is consistent with the cases set out above: if the officer was not entitled to stop the car, Mrs. Weir 15 was entitled to refuse to take a test or even to resist him, using reasonable force, in the event that he attempted an arrest without any other basis. 8.12 If, on the other hand, the search of the Appellant’s person was interrupted by a violent assault by him on the officer, that could constitute a “free-standing matter” rather than an obstruction of the search. Put in this way, and considering the matter even in isolation from the constitutional right to inviolability of the dwelling place, it is hard to resist the conclusion that the obstruction was not a new event and could only be an offence if the search was lawful. A householder must be entitled to resist a search of his person in his own home, if there is no authority to enter the house. If the analogy with the poisoned tree is to be used at all, it is perhaps only useful to consider the warrant as a limb of the tree; the whole tree must be put into evidence by the prosecution before one considers whether it is poisoned and whether any fruit may be similarly poisoned. Here, evidence about the tree was adduced but there was insufficient evidence to determine if it was poisoned. The prosecution had a document that would have put the matter beyond doubt, but did not produce it. A court cannot assume it was not poisoned in those circumstances. 8.13 In light of the findings in Cumberbatch, it is also important to note the actual evidence in this case which is set out in section 4, above: while the garda testified that the Appellant had “violently resisted”, the physical acts described went as far as his having pushed that officer and being in a struggle with him. No further details were given. The officer did not complain of injury, and he then pepper- sprayed the Appellant to subdue him. The Appellant was not charged with assault but with obstruction. Finally, it was not suggested that the Appellant had used unreasonable force in resisting the search, only that the search was lawful and the evidence was sufficient to prove this. 8.14 As noted, Weir is the most useful comparator when considering the present case. Many of the arguments here were raised in that case, which is not just logically persuasive but, unlike the English authorities, is a case which I am 16 obliged to follow, unless there is a good reason to depart from the decision of O’Neill J. I see no reason to do so. That decision is also aligned with the principles regarding burdens set out in C.W. and, in following the ratio decidendi of O’Neill J., this decision is also in line with the principle of judicial comity (see, for instance, Worldport Ireland Ltd (In Liquidation) [2005] IEHC 189). 8.15 There is no basis on which to consider that excessive force was used by this Appellant such that his actions could be considered as a free-standing assault, separate from events leading to the search, which might be considered as another tree, to force this already strained analogy to a very strained conclusion. The evidence does not bear this construction. 9. M.S. and Browne v Dunn: Red Herrings 9.1 The last issue that should be explored, because it was argued at some length, is whether the failure to challenge the warrant is relevant in the circumstances. Both parties addressed the question of whether the validity of the warrant was an issue that the defence was obliged to raise from the point of view of the case law regarding impeachment of a witness. Both relied on D.P.P. v. M.S. [2025] IESC 4. Donnelly J., delivering the judgment of the Supreme Court in that case, cited the judgment of Lord Halsbury in Browne v. Dunn (1884) 6 R 67 as “encapsulating the decision” in that seminal authority where he concluded: “To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.” 9.2 The essential aspect of Browne v. Dunn (and indeed of M.S.) which bears emphasis in this context, is that it deals with the impeachment of a witness. When viewed from first principles, this case does not. This case deals with the 17 burden of proof in respect of the actus reus. The issue of whether or how to prove the warrant would not even arise had this been a case involving the fruits of a search. It would be self-evident that a garda witness who wanted to adduce evidence of what he found could not simply assert that he had a warrant. 9.3 In M.S. and D.P.P. v. Burke [2014] IEHC 483 (which approved Browne v. Dunn in this jurisdiction) the issue of putting the client’s case in cross-examination was the topic under discussion. In M.S. a child complainant in a rape case had given evidence of suffering pain, but only in her hands and had not mentioned pain in reference to penetration. The accused denied the allegation of rape and cast doubt on that evidence in closing, without having challenged it directly. The Court upheld the right of the defence to comment on this evidence, without having any duty to directly challenge evidence in respect of which the accused could not, realistically, have offered a contrary account. In Burke, a witness gave exculpatory evidence and was not challenged. The defence argued that her account had to be accepted. Baker J. held that the weight of her evidence was a matter for the trier of fact in the context of a multiple witness case, many of whom contradicted her account. Here, the defence simply did not raise the issue of the warrant, an essential proof, until the prosecution case had closed and only oral evidence of possession of a warrant had been given. 9.4 Reading paragraph 74 of the judgment in M.S., where Donnelly J. sets basic rules of trial, helps to clarify why these cases do not apply: “74. Juries are usually told in opening speeches that the accused does not have to prove anything and does not have to do anything in the course of the trial. This flows from the presumption of innocence and that the burden of proving guilt beyond reasonable doubt lies with the prosecution. To require an accused person to cross-examine a witness could not be consistent with the right to trial in accordance with law under Article 38.1. In that regard I agree with Baker J. when she said that there was no such requirement. That is not the same as saying that the rule has no application at all in a criminal trial. Fairness and common sense may mean however, that an accused on 18 whose behalf there is no cross-examination, risks some kind of adverse comment if entirely outrageous or unwarranted attacks on credibility are advanced to a jury without any foundation whatsoever in the evidence…” [my emphasis]. 9.5 Recalling this passage in light of the facts of this case suggests a further, clarifying hypothesis: had the defence in this case suggested in closing that the garda witness had obtained his search warrant by fraud, such a question should be put, or the defence risks a finding by the trier of fact that this suggestion had no support. Here, however, the argument is the straightforward point that the burden lay on the prosecution to prove lawful entry and they did not do so. 9.6 Finally, I must add that the speed of trial in the District Court does not permit a fraction of the attention that can be paid in this Court to the legal arguments arising, either by Counsel or by the Court. Proof of the actus reus is the core argument, rather than considering the question of a warrant as an evidential burden or an impeachment issue, which should be raised by the accused, or he risks an adverse finding in respect of his evidence on the issue. 10. Conclusions 10.1 Proof of lawful authority to enter and a right to search the Appellant’s dwelling and person are elements of the actus reus of the offence of obstruction as the prosecution must prove that the officer was acting in the course of his duty. The production of the search warrant is usually an essential proof. It is not sufficient to admit evidence to the effect that “I had a warrant” and to allow this evidence, with no explanation as to why the warrant is not in court, to supplant a self-contained document which authorises entry to a dwelling place, which is easy to produce and which the witness clearly had access to. The mixed statement of fact and belief, even if expressed more forcefully as “I had a valid warrant” cannot fulfil the onus on the prosecution to prove every element of the offence beyond reasonable doubt in circumstances where the search warrant was available. 19 10.2 If the warrant was not valid, the Appellant was entitled to resist the search. The offence is one of obstruction, which would have been lawful had the officer not been acting in the course of his duty. Any direct physical contact made by the officer with the body of the Appellant was lawful only if there was a valid warrant. I note that the warrant was later produced and there is no suggestion that this officer was acting mala fides, simply that the warrant was not produced at trial and that the validity of the warrant and therefore the prosecution case which rested on that warrant, was not proven beyond a reasonable doubt. 10.3 The answers to the questions asked are as follows: (a) where a member of An Garda Síochána alleges that an obstruction offence contrary to section 19(3) of the Public Order Act, 1994 takes place in a constitutionally protected dwelling is there an obligation on the prosecution to prove the lawfulness of the entry and search? Yes. (b) if the answer to (a) is yes and the prosecution asserts that the entry to the constitutionally protected dwelling and to the search of persons therein is on foot of a warrant, is oral evidence of the existence of a warrant adequate evidence of a statutorily authorised written warrant under section 26 of the Misuse of Drugs Act 1977 and therefore sufficient to establish the lawfulness of the entry? No. (c) if the answer to (b) is no, was I correct to convict the appellant of an obstruction offence within his dwelling? No. 10.4 My provisional view is that the Appellant is entitled to his costs. If the parties wish to address the issue, please contact the Registrar within 14 days. Appearances Mr. John Berry S.C. and Ms. Aislinn Finnegan B.L. for the Appellant instructed by Lorraine Stephens Solicitors Mr. Feichín McDonagh S.C. and Ms. Kate Egan B.L. for the Respondent instructed by the Office of the Director of Public Prosecutions 20