Gardaí breached the constitutional right to privacy of a man who was secretly recorded offering two undercover officers money to import cocaine to Ireland, a court has heard.
The Court of Criminal Appeal today heard submissions in an appeal brought by Sunny Idah (aged 38) against his conviction and 13-year sentence for two charges of soliciting another person to unlawfully import cocaine on dates between September 14 and 19, 2010.
In May 2012, Idah, an Irish citizen originally from Nigeria and with addresses at Lipton Court, Dublin city centre, and Gerard House, Brown Street, London, had pleaded not guilty at Dublin Circuit Criminal Court to the charges.
Judge Desmond Hogan imposed a sentence of 15 years on the father-of-three, but suspended the last two years on the condition that he keep the peace and be of good behaviour for five years post-release.
The court heard that that the case against Idah arose out a joint operation between gardaí and Swiss police against drug smuggling.
It was the prosecution case that an undercover Swiss operative, who posed as a Lithuanian drug dealer and went by the name “Mantas Skrupskis”, used an email address to communicate with Idah, who used the name Mr T or Teemore.
Idah was arrested after undercover gardaí, posing as two Polish drug mules in Ireland, recorded conversations they had with Idah during which he arranged details of a trip to South America.
During the trial Detective Garda Ciaran O'Reilly told prosecuting counsel Colm O'Briain that Idah offered €5,000 each to undercover gardaí to travel to Brazil, swallow cocaine and smuggle it back to Ireland.
Det Gda O'Reilly said Idah had asked the would-be drug mules to swallow 1kg of cocaine each in the form of 100 10-gramme pellets of compressed cocaine.
The court heard that 1kg of cocaine has an estimated street value of €70,000.
Mr John Byrne BL, for the applicant, told the court that Idah’s right to privacy was breached as a result of the recording of conversations he had with undercover gardaí in three face-to-face meetings on September 15, 17 and 19, 2010.
He said that pursuant to Section 5 of the Criminal Justice Surveillance Act 2009, gardaí obtained authorisation from the District Court for the use of an audio-visual surveillance device within a room in the Regency Hotel in Dublin from September 14 through to September 18.
When gardaí became aware that the plan to travel to South America was to be delayed until September 19, they obtained approval to use a device under an emergency provision which allows a Garda Superintendent to issue such an approval in urgent circumstances.
However, Mr Byrne told the court that the District Court authorisation was not applicable as all of the meetings with Sunny Idah took place outside of the room in the Regency Hotel.
With regard to the emergency approval on September 19, Mr Byrne said that gardaí learned of the delay on September 17, yet no enquiries were sought to see if a District Court judge could hear an authorisation application and no circumstances of urgency existed.
He submitted that gardaí failed to comply with the provisions of the 2009 Act and that Judge Hogan erred in principle by determining that the activities of the undercover gardaí did not constitute surveillance as defined by the 2009 Act.
Mr O’Briain said the prosecution case was that the mobile device used by the undercover gardaí from the 14th through to the 18th of September did not require a court authorisation and was not used for purposes of surveillance as set out in the 2009 Act.
He said it was clear the authorisation was obtained in respect of the hotel room for an audio-visual device that was separate from the device operated by the undercover gardaí.
Mr O’Briain said there were technical difficulties in fitting the authorised device and Idah never went to the hotel.
Counsel said there was evidence the prevailing view of gardaí was that authorisation was not required for face-to-face recording as it did not constitute surveillance within the meaning of the 2009 Act.
Mr O’Briain submitted that there was no breach of the constitutional to privacy and there was no right to privacy when a person engages in criminality.
Senior Counsel for Idah, Mr Padraig Dwyer SC, told the court that there were a number of other grounds of appeal.
He said the name of the undercover Swiss operative has never been made known and when the officer gave their evidence in a Geneva courtroom, they were hidden behind a screen, their voice was electronically disguised and they were accompanied by a senior police officer who advised on the questions asked.
Mr Dywer said that the trial judge erred in allowing a transcript of this evidence to be admitted in circumstances where the Swiss operative did not attend at the Irish trial.
Counsel also submitted that the trial judge erred by refusing to discharge the jury in circumstances where prejudicial material was contained in the transcript of the undercover Swiss officer’s evidence and given to the jury.
Mr Dwyer said that the Swiss officer never purported to identify “Teemore” as Sunny Idah, yet when the exhibit was handed to the jury part of it was entitled “The Swiss UC telephoned Sunny Idah”.
Presiding judge Mr John MacMenamin said the appeal court would deliver judgement on the matter before the end of court term.