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Irish Court of Criminal Appeal |
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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Olaitan Ilori [2008] IECCA 134 (31 October 2008) URL: http://www.bailii.org/ie/cases/IECCA/2008/C134.html Cite as: [2009] 2 IR 109, [2008] IECCA 134 |
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Judgment Title: D.P.P.-v- Olaitan Ilori Composition of Court: Kearns J., Budd J., Herbert J. Judgment by: Kearns J. Status of Judgment: Approved
Outcome: Refuse leave to appeal against conv. | ||||||||||
COURT OF CRIMINAL APPEAL Kearns J. Budd J. Herbert J. [C.C.A. No. 183 of 2007] BETWEEN THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT AND OLAITAN ILORI APPLICANT JUDGMENT of the Court delivered by Mr. Justice Kearns on the 31st day of October, 2008 On 4th July, 2007 the applicant was convicted on twelve counts of illegal trafficking of immigrants into the State contrary to s.2(1) of the Illegal Immigrants (Trafficking) Act, 2000. Section 2(1) of the Act provides:-
Each count related to one of fourteen Mauritian nationals who sought leave to enter the State at Dublin Airport on 27th October, 2004. The fourteen Mauritian nationals consisted of twelve adults and two children. Acquittals were directed by the trial judge in respect of the two counts relating to the children. The evidence in the case was that the group of Mauritians, who had travelled from Mauritius to Ireland via Paris, paid substantial sums of money to a company Micro-Data Info. Co. Ltd (MDI) in Mauritius on the basis that they would be provided with documentation to facilitate their entry into Ireland and, following their arrival and entry into Ireland would in addition receive Irish work permits. A number of the Mauritians gave evidence that the applicant, who is Nigerian but who has Irish nationality and offices in Dublin, held himself out as an expert in immigration law and immigration matters generally in this jurisdiction. The applicant came to Mauritius some days prior to the group’s departure and detailed his plans to them for their entry into Ireland at a meeting convened in the premises of MDI for this purpose. As part of an elaborate scheme each member of the group was provided with certain documentation. The documentation included a letter from a residential hostel in Dublin confirming a booking at that location and a letter purporting to be from a company in Ireland called E-IKRAX, a company associated with the applicant, which promised that work permits would be issued to the Mauritians within a week. A further letter was provided from MDI purporting to confirm that each person had work qualifications of one sort or another. This letter from E-IKRAX was a complete work of fiction. There was never at any time any specific job or work offer available to this group or to any one or more of them from any body, company or employer in Ireland. There was evidence that the same had been typed and prepared by the applicant’s secretary in his Parnell Street offices from a manuscript provided by the applicant. The applicant accompanied the Mauritians on their flights to Paris and Dublin. Various members of the group gave evidence at trial that the applicant advised them to fill out their landing cards on the basis that the purpose of their visit to Ireland was “tourism”. Significantly, the applicant took back from each of the Mauritians their said E-IKRAX letter when they arrived in Paris. He offered no explanation for doing so, but the clear effect of this action was to sever any ostensible link between the fourteen Mauritians and Mr. Ilori at the time when they arrived at Dublin Airport and presented at Immigration Control. On arrival at Dublin Airport, the applicant did not remain with the group but passed separately through passport control. He was, however, stopped at the customs checkpoint where his briefcase was found to contain documentation linking him to the fourteen Mauritians. These documents included nine receipts relating to five members of the group in respect of monies paid over by them in Mauritius for work visas in Ireland. The applicant was arrested shortly afterwards in circumstances to which I will later refer and brought to Santry Garda Station. In the meantime the fourteen Mauritians had been refused entry at Immigration Control as illegal immigrants and were deported from Ireland the following day. Evidence was tendered of interviews conducted by the Gardai with the applicant in Santry Garda Station in which various admissions were made by the applicant. Searches undertaken by the Gardai in both the offices operated by the applicant and at his home turned up abundant further documentary evidence linking him to the scheme to organise and facilitate the entry of the said Mauritian nationals into the State. The Court would wish at the outset to indicate its view that the offence under s.2(1) of the Act of 2000 is complete when the evidence establishes beyond reasonable doubt that the accused person “organised or knowingly facilitated” the entry into the State of a person or persons whom he knows or has reasonable grounds to believe to be illegal immigrants. In the view of the Court it is not necessary for the prosecution to establish that there has been entry into the State in any sense which implies that it was necessary to demonstrate that the Mauritians had cleared Immigration Control and been granted permission to land. The essence of the offence lies in “organising” or “facilitating” the physical entry into the State of persons known or reasonably believed to be illegal immigrants. For the purpose of an offence under s.2 (1) of the Illegal Immigrants (Trafficking) Act, 2000, “entry into the State” means entering the national territory by crossing the outer limit of the national frontiers. It does not refer only to a person who has passed through immigration control at approved air or sea ports or land frontier posts. Such a restricted interpretation would defeat the clear objectives of the legislature as expressed in the Act of 2000 and in the Immigration Act, 2004, and would run entirely counter to the definition of “illegal immigrant” contained in s.1 (1) of the Act of 2000. That the applicant was heavily involved in both organising and facilitating the arrangements whereby the Mauritians actually landed in a physical sense in this jurisdiction was supported by an abundance of evidence from both Irish and Mauritian witnesses in a trial which lasted some ten days. The Court rejects as verging on the absurd the submission that the Mauritians in this case should be regarded as “accomplices of the applicant”. These unfortunate individuals were persuaded to part with very significant sums of money in Mauritius to become eligible to participate in this elaborate scheme. They were victims in every sense of the word of both the applicant and those responsible for directing the operations of MDI in Mauritius. Further, any suggestion that the applicant acted otherwise than for gain was shown to be untrue because a number of forms headed “Equity Office Immigration Consultants, 91, Parnell Street, Dublin” and stated to be “Terms of Payment Consideration” were found in the possession of the applicant. By these forms of agreement each client bound himself to pay the sum of 2000 euro by four monthly payments of 500 euro to that company (c.c. Mr Doger Rose) “for my work permit application” when he or she started to work in Ireland. Further evidence at trial clearly established that the applicant was to receive a portion of such further payments as they fell due over a period of time. In the view of the Court there was overwhelming evidence implicating the applicant at every stage of this scheme. One point raised however by Ms. Aileen Donnelly, Senior Counsel for the applicant, requires more elaborate consideration. During the course of the trial there was a lengthy voir dire hearing in which a challenge was raised to the admissibility of all evidence gathered by the prosecution which resulted from the search of the accused at Dublin Airport by Customs officials there and during the course of the applicant’s subsequent detention at Santry Garda Station. The first issue relates to the alleged detention of the accused at Dublin Airport between 12.15 and 1.50 p.m. on the date of arrival. The accused was stopped by Mark Newman, an officer of Customs & Excise, for the purpose of carrying out a search of his luggage pursuant to s.29 of the Finance Act, 1971 as inserted by s.19 of the Customs & Excise (Miscellaneous Provisions) Act, 1988. Mr. Newman stopped the accused at the Green Channel at Dublin Airport and invited him to go to a room close to the Green Channel for the purpose of carrying out that search. It should be stressed that this was out of courtesy for the privacy of Mr. Ilori as otherwise the search process would have taken place in full view of travellers from multiple other flights. Mr. Newman searched the accused’s briefcase and found the receipts for payments made by the Mauritians concealed in a book. He thereupon contacted the Garda National Immigration Bureau at the airport and Garda John McCormack from the Bureau who later arrived at the room at approximately 1.10 p.m. Garda McCormack took the book containing the receipts and left, returning at approximately 1.40 p.m. The accused was then arrested at 1.50 p.m. It was submitted on behalf of the applicant that he was being detained by Mr. Newman to facilitate Garda McCormack carrying out an investigation into a suspected offence contrary to s.2 of the Act of 2000. Ms. Donnelly submitted that a detention for the purpose of investigation is prohibited, citing the following passage from Dunne v. Clinton [1930] I.R. 366:-
In ruling on this application, the learned trial judge stated:-
DECISION Section 29(2) of the Finance Act, 1971 as inserted by s.19 of the Customs & Excise (Miscellaneous Provisions) Act, 1988 provides as follows:-
It was suggested to Mr. Newman in cross-examination that Mr. Ilori was being kept in the interview room for the purpose of facilitating the ongoing investigation by the Bureau. He accepted that Detective McCormack went away with the documents discovered in the book at 1.10 p.m., and that he returned at 1.40 p.m., and said that while Detective McCormack was away, he continued to search the applicant’s other luggage. In ruling on the submission made by Ms. Donnelly that the prosecution had failed to discharge the onus of proving that Mr. Ilori was not unlawfully detained by Mr. Newman, the learned trial judge found that Mr Newman was exercising his statutory right to examine the applicant’s luggage and was not unlawfully detaining Mr. Ilori. Nothing was put before this Court which would suggest that the trial judge in ruling as he did acted according to incorrect principles. Having carefully considered all the evidence the Court is satisfied that Mr. Newman was not unlawfully detaining Mr. Ilori in the customs room or “playing for time” in carrying out a baggage inspection, but rather that he was continuing to perform the duties which he was authorised by statute to perform at all material times. The Court is satisfied that this ground of appeal must fail along with the other grounds of appeal argued in this case. The Court will accordingly dismiss the appeal herein. | ||||||||||
