Legal argument: The legal argument which took place on the second day of the Brian Curtin trial revolved around the validity of the warrant under which his computer was seized.
Counsel for Judge Curtin, Mr Patrick MacEntee SC, told the court, in the absence of the jury, that the search warrant relating to the premises was a spent warrant, meaning it was out of date when the search took place. "An issue arises whether it was an adequate legal warrant to justify the violation of the constitutionally protected inviolability of the accused's residence.
"It will be our contention that there was an unconstitutional entry and that the items were seized unconstitutionally and cannot be admitted into evidence," he said.
Counsel for the prosecution, Ms Mary Ellen Ring SC, called Det Insp Thomas Dixon, of the domestic violence and sexual assault unit of the Garda Síochána based in Harcourt Square, to give evidence of obtaining the warrant.
He said that on May 20th, 2002, he went to the President of the District Court, Judge Peter Smithwick, and swore certain information he had received from Interpol. That included a list of names, among them that of Brian Curtin, an address at Ashe St, Tralee, an email address, a credit card number, the expiry date of the credit card, a password and some additional information.
He applied to the judge for a search warrant, to carry out a search of 24 Ard na Li, Tralee, the residence of Judge Curtin, seeking child pornography, a computer, disks and media storage devices. Judge Smithwick asked him had he established the ownership of the credit card used, and he said he had, it was owned by Brian Curtin. The judge issued him with a search warrant.
Having obtained the warrant, on the morning of May 27th, 2002, at about 8 a.m. he went with a superintendent and two detective sergeants to 24 Ard na Li armed with the warrant. No-one was present. They drove around and waited, calling back on a number of occasions. At about 1.50 p.m. they entered the house. There was a person present and later another person came and they then commenced a search and a number of items were taken.
He told Mr MacEntee he did not take any notes of the time he went to Judge Smithwick, but looked at his watch when the warrant was signed and saw that the time was 3.20 p.m.
Judge Carroll Moran told Ms Ring that she was being asked to prove the validity of the warrant.
She said that under the 1998 Child Trafficking and Pornography Act a warrant issued by a district justice authorised a named member of the Garda Síochána, along with others, to enter a premises within seven days of the date of the issuing of the warrant. She accepted that the onus was on the prosecution to prove that the gardaí had acted within the requisite time.
She referred to the Statutory Interpretation Act, which stated that where a period of time was involved, the day specified is deemed to be included, unless the contrary intention was indicated. She argued that in the 1998 Act the contrary intention did apply, and the phrase "within seven days from the date of the warrant" meant that the period started after the first day. Otherwise the Act would have said "within seven days of the date of the warrant". In other Acts the word used was "of".
She said that the clear purpose of the legislature was not to include the date of the issuing of the warrant in the reckoning of the time limit. So the warrant executed within seven days was not spent.
She said there was also an issue as to the definition of a "day" in the Act. It could be any period of 24 hours. The evidence in this case was that at about 3.20 on May 20th Det Insp Dixon obtained a warrant and this was executed by the entry into the house at 2.20 on May 27th, which clearly brought the entry within the statutory period.
Mr MacEntee said that the 1998 Act was very clear. It specified that the search should be carried out within seven days of the date of the warrant. The Act was presumably drafted in contemplation of the Interpretation Act, which made it clear that the first day should be reckoned.
What Ms Ring was contending could lead to an absurd situation, if the date on which the warrant was issued was not counted, where a warrant issued at five minutes past midnight on a specific date could not be executed for 23 hours.
If one took the approach of taking the time of the day, and working out 24-hour periods, the problem was that the warrant did not show the time of issue. A person faced with such a warrant would not know whether they were legally required to acquiesce or not. This would mean that the courts would have to hear endless wrangles about the time warrants were issued.