Drug Powers & Penalties
People (DPP) v Smyth and Smyth
[2010] IECCA 34
Judgment of the Court delivered on the 18th of May 2010 by Mr. Justice Charleton
1. This appeal concerns the nature of a reversed burden of proof in a charge of possession of controlled drugs. The Court also suggests the appropriate direction to a jury by a trial judge in that regard. Both applicants were charged with offences contrary to s. 15 of the Misuse of Drugs Act 1977, as amended, alleging that on the 20th August, 2007, at Béal an Átha, Falcarragh in the county of Donegal, they were in possession of cannabis for the purpose of unlawful sale or supply, and that they were in possession of cannabis worth more than €13,000 for the purpose of unlawful sale or supply. The men were also charged with simple possession. They were tried before Letterkenny Circuit Criminal Court, His Honour Judge John O’Hagan presiding, on dates between the 3rd and the 19th June 2008. Mr. Smyth Junior was convicted unanimously on all three counts. Mr. Smyth Senior was convicted by a majority verdict on the three counts.
Ground of Appeal
2. Only one ground of appeal was argued. It was that in addressing the jury, the learned trial judge misdirected them in their consideration of the defence to possession which is set out in section 29(2) of the Misuse of Drugs Act, 1977. This, as to the material part reads:
“In any such proceedings in which it is proved that the defendant had in his possession a controlled drug… it shall be a defence to prove that:-
he did not know and had no reasonable grounds for suspecting –
that what he had in his possession was a controlled drug… or
that he was in possession of a controlled drug.”
3. Apart from considering the direction to the jury of the learned trial judge, the Court would wish to add some brief comments as to the form of direction which should be given in such cases.
Background
4. During the course of a routine search in the DHL compound in Dublin Airport in August, 2007, five substantial parcels were found to contain cannabis. The consignee of the drugs was named, and a telephone number was given. The gardaí took possession of the parcels. Using the information furnished to them they made contact with an individual by telephone. A rendezvous was arranged. There, the gardaí handed the parcels over to the two applicants. They were shortly after that arrested and charged and, as we know, later tried and convicted.
5. The defence case, as revealed in statements which the applicants made to the gardaí, and in the evidence at the trial of one of them, was that a friend had contacted Mr Smyth junior, the second applicant, and asked him to collect parcels containing computer parts. He was instructed to use a new mobile phone and to use an assumed name. Not being able to drive, as he claimed, Mr Smyth junior had asked his father Mr Smyth senior, the first applicant, to drive a van and help him with the parcels. For this, according to themselves, they were to receive a sum of around €300.
6. The evidence presented at the trial clearly proved that both applicants had taken possession of the parcels and that these contained cannabis of the herbal kind. Whereas it might be apparent to a trained police dog that the contents of the parcels were cannabis, as proven, to any ordinary individual, without prior knowledge, they would appear as just packages of a particular weight and size.
7. At the trial, apart from the facts previously indicated, other evidence was led, properly in the view of the Court, concerning what the gardaí had detected as to the movements and behaviour of the applicants prior to their arrest. From this, the prosecution were arguing that an inference could be drawn against the accused men of knowledge as to what was within the parcels. Under section 29(1) of the Misuse of Drugs Act, 1977, as amended, it is of no legal account that an accused person was of the view that a different controlled drug to cannabis, or as may be, was what he intended to possess. In other words, it is not a defence that the accused thought that he was in possession of heroin, whereas in fact it was cocaine.
The Charge
8. In opening the case, counsel for the prosecution scrupulously outlined, in concise form, the relevant legal principles applicable together with a summary of the facts. She indicated that the prosecution bore the burden of proving beyond reasonable doubt possession of the controlled drug, as charged, as against each accused. She next said that the burden of proof then shifted on to each accused to show that they did not know, and had no reasonable grounds for suspecting that what they had in their possession was a controlled drug. This burden, counsel outlined, was to be discharged by each accused proving that defence on the balance of probabilities.
9. The Court comments that on the state of the law as it was then understood, this explanation by counsel for the prosecution as to the reversed burden of proof was correct. In particular, it accorded with the judgment of this court in The People (D.P.P.) v. Byrne Healy and Kelleher [1998] 2 I.R. 417. It was not necessary, counsel for the prosecution correctly told the jury, in relation to the charge contrary to section 15A of the Misuse of Drugs Act 1977 as inserted by s.4 of the Criminal Justice Act 1999, for the prosecution to prove that the accused knew or ought to have known that the market value of the controlled drug, or the aggregate of the market values of the controlled drugs in the five packages, amounted to €13,000 or more; see D.P.P. v. Ronan Power [2007] IESC 31 (unreported, Supreme Court, 26 July, 2007).
10. As this Court held in The People (D.P.P.) v. Byrne Healy and Kellegher, [1998] 2 I.R. 417, s. 29(2)(a) was intended to avoid the injustice that might arise out of a person being convicted solely because he is in possession of drugs although it was clear that he did not know, and had no reason to suspect, that he had drugs in his possession. The possibility of such a conviction arose from earlier English authorities that the Court analysed in that judgment. These authorities were considered in that judgment. Innocent people may, from time to time, take into their custody a package without having reason to suspect that it might contain a controlled drug. The circumstances out of which that possession originates may lead to an inference that they knew or that they suspected that they were engaged to carry, or otherwise possess, a controlled drug. It is perhaps the private nature of the motivation or belief that most people have in handling or possessing a closed packet that led the Oireachtas to reverse the burden of proof. The accused, facing a charge of possession of a controlled drug, must make out the defence set out in s. 29(2)(a) of the Act of 1977.
11. In criminal proceedings the burden of proving the charge is on the prosecution and that burden must be discharged by proof beyond reasonable doubt. Where any element of proof is reversed, it is not the law that the accused bears the burden of proving the non-existence of the relevant element of the offence beyond reasonable doubt. The Court is satisfied that it was not the intention of the learned trial judge to so indicate to the jury trying the applicants. In the result, however, a real issue has arisen as to whether that occurred in his charge to the jury.
12. In dealing with the general directions, the learned trial judge referred to the presumption of innocence and stated that the burden of proving the guilt of the accused rested with the prosecution. This burden, notwithstanding the relevant statutory provision, he said never shifted to the defence. That was an error. He referred to s. 29(2)(a) of the Misuse of Drugs Act 1977, and correctly characterised it as “the lynchpin” of the case. He correctly analysed the nature of the defence set out under that section as being subjective: it was what each of the applicants perceived, in all the circumstances of the case, that they had in their possession which was in issue. He then continued:-
“Now you should look at each of them individually. You can’t just say because one might have more evidence against him than the other – that’s a matter for you to work out. You must look at each of the accused. If you believe, for example, that Mr. Smyth Senior, in your opinion knew nothing about this, if you’re satisfied about that beyond reasonable doubt, or if you have a doubt, then you must give him the benefit of that and, similarly, you must look at Mr. Smyth Junior and apply the same principles”.
13. It was no part of the reversed burden carried by either of the applicants, as accused, for them to prove beyond reasonable doubt that they did not know and had no reasonable grounds for suspecting that what was in their possession was a controlled drug. The direction was therefore in error. There is also danger that the jury perceived the directions received from the learned trial judge to be inconsistent. A court should not give two inconsistent legal directions to a jury on a fundamental principle; such as the definition of an offence or what elements make it a defence in criminal law; The People (D.P.P.) v. Noonan [1998] 2 I.R. 439 at 445. The Court wishes to briefly offer assistance as to the correct direction to be given by trial judges in future as to the reversed burden of proof set out in s. 29 of the Misuse of Drugs Act 1977.
Correct Direction
14. A burden of proof on the accused, as set out in s. 29 of the Misuse of Drugs Act 1977, as amended, is not unique as to its form in criminal statutes. In making these comments, however, the Court confines itself to that specific provision. It is not, for instance, making any wider declaration as to how any particular reversed burden of proof is to be approached. In particular, it makes no comment on the historical feature of the insanity defence whereby it has always been the law that those who plead the defence must prove clearly that they did not know the nature and quality of their act, or that they did not know that what they were doing was morally wrong or that they could not control their actions. The re-statement of the law in s. 4 of the Criminal Law (Insanity) Act, 2006 as to insanity, and the introduction of the defence of diminished responsibility in s. 6 of that Act, carries with it a burden of proof on the defence which is discharged on the balance of probabilities. The prosecution carry the entire burden of proving the commission of the crime. Sound reasons of policy may indicate that a defence should be proven by the accused as a probability. One reason arises in relation to the special defence of insanity. A person who is found to have committed an intentional killing, for instance, and who might make out a plea of insanity on the basis of merely raising a reasonable doubt would, if not insane, be in danger of being discharged almost immediately by the Central Mental Hospital. A decision to reverse on to the accused an element of the proof of the commission of a crime that might normally be expected to be borne by the prosecution, or to set up a special defence such as insanity, is a matter of legislative competence. It is for the Oireachtas, in each case, to set the parameters of proof in a criminal charge; to decide whether there should be a reversed burden of proof in respect of any element of a crime; and to indicate expressly, or by implication, the nature of the burden of proof that is to be discharged by the defence.
15. How the burden of proof is borne depends upon the substantive law. At a criminal trial, the burden of proof is borne by the prosecution in respect of every issue; except on those issues on which the burden of proof is cast on the accused by statute. This burden is not to be confused with the burden of adducing evidence. Criminal trials would be chaotic were the accused entitled to run any potential defence which might be hypothetically open on the facts of the prosecution case. The accused must engage with the evidence. Where the defence of the accused to a murder charge is that he was defending himself, or that he was provoked, or that he was acting in an automatous state, he carries the burden of adducing evidence on those issues in order to allow that defence to be argued by defence counsel in a closing submission to the jury. As it was put by Devlin J. in Hill v. Baxter, [1958] 1 Q.B. 277 at 284:-
“It would be quite unreasonable to allow the defence to submit at the end of the prosecution’s case that the Crown had not proved affirmatively and beyond a reasonable doubt that the accused was at the time of the crime sober, or not sleep walking or not in a trance or black out.”
16. Consequently, there must be some evidence to which the accused can point whereby a particular defence to crime becomes open. This is not a legal burden of proof; it is merely the burden of adducing sufficient evidence to allow a defence to be argued in closing and then included as part of the relevant legal directions in the charge of the trial judge.
17. A legal burden of proof is different. This places upon the party bearing that legal burden, the obligation to prove the issue that he is required to prove. The standard of proof may vary. As already, mentioned, policy reasons have dictated that the defences of insanity and diminished responsibility should be clearly proven by the accused. For these defences, the burden of proof is for the accused to show that he has discharged the burden of proof by showing, as a probability, that he acted within the terms of one or other of those defences. The defence of insanity, as with other defences, is not, however, part of the elements of proof borne by the prosecution in establishing the crime. It is not incumbent on the prosecution to prove that in killing the deceased that the accused was not insane. It is for the accused to raise that defence and to prove it.
18. Much of the argument before the Court was centred on whether a reversed burden of proof could be compatible with Article 6(2) of the European Convention on Human Rights and Fundamental Freedoms. In particular, the Court notes that in R. v. Lambert [2002] A.C. 545 the House of Lords commented on this issue. The Court also notes that in R. v. Barr [2005] EWCA Crim 1764 the Court of Appeal quashed a conviction for possession of cocaine where the reversal of a burden of proof was in issue. The accused admitted passing a bag to another person but claimed that he did not know what it contained. Section 28 of the United Kingdom Misuse of Drugs Act, 1971 contains a defence section cast in similar terms to s. 29 of the Misuse of Drugs Act 1977, as amended, in this jurisdiction. The modern direction for the neighbouring kingdom appears to be as stated by the High Court of Justiciary in Henvey v. H.M. Advocate, [2005] SLT 384.
19. The Court considers, however, that the proper construction of the burden of proof in s. 29 of the Misuse of Drugs Act, 1977, as amended, and the correct direction to a jury hearing such a charge, is to be derived from Article 38.1 of the Constitution. This provides:-
“No person shall be tried on any criminal charge save in due in course of law”.
20. The fundamental principle of our criminal justice system is that an accused should not be convicted unless it is proven beyond reasonable doubt that the accused committed the offence. The legal presumption that the accused is innocent, until his guilt is proven to that standard, operates to ensure objectivity within the system. It is a matter for the Oireachtas to decide whether on a particular element of the offence an evidential burden of proof should be cast on an accused person. Of itself, this does not infringe the constitutional principle that the accused should be presumed to be innocent until found guilty. Reasons of policy may perhaps require that any reversed element of proof cast on the accused should be discharged as a probability. That should either be stated in the legislation or be a matter of necessary inference therefrom. The construction of a criminal statute requires the Court to presume that the core elements of an offence must be proven beyond reasonable doubt; otherwise the accused must be acquitted. A special defence, beyond the core elements of the offence, may carry a different burden; insanity and diminished responsibility are examples of such a defence which casts a probability burden on the accused. Where, however, in relation to an element of the offence itself, as opposed to a defence, a burden is cast upon the accused, the necessary inference that the accused must discharge that burden on the balance of probability is not easily made. The Court notes that bearing the burden of proving a defence as a probability could have the effect that in respect of an element of the offence an accused person might raise a doubt as to his guilt, but not establish it as a probability. This might lead to a situation where the charge was not proven as to each element of the offence beyond reasonable doubt, but nonetheless the accused could be convicted. That would not be right. Proof of a guilty mind is integral to proof of a true criminal offence, in distinction to a regulatory offence. In s. 29 of the Misuse of Drugs Act 1977, as amended, the normal burden of proving the mental element of possession of a controlled drug is removed from the prosecution and the accused is required to prove that it did not exist.
12. In consequence, the Court considers that an evidential burden of proof is cast on the accused by s. 29 of the Misuse of Drugs Act 1977, as amended, which is discharged when the accused proves the existence of a reasonable doubt that he did not know, and had no reasonable ground for suspecting that what he had in his possession was a controlled drug. This is not a burden merely of adducing evidence. It is legal burden discharged on the lowest standard of proof, namely that of proving a reasonable doubt. This has consequences for the trial of charges based on possession of a controlled drug. The prosecution must prove possession as against the accused. They must also prove that the substance in question was a controlled drug as defined in the Misuse of Drugs Act 1977, as amended. Regulations may need to be proven by handing in an official copy of them. These elements must be proven by the prosecution beyond all reasonable doubt. A burden is then cast on the accused to make out a reasonable doubt in accordance with s. 29. This may be done by pointing to a weakness in the prosecution case, by reference to a statement made to the gardaí, or by the accused himself giving evidence. Because this is a legal burden of proof, the decisions as to what evidence on that issue will be sufficient so as to raise a reasonable doubt are for the accused. He must decide if he has put sufficient evidence by way of proof to raise a reasonable doubt before the jury. This carries practical consequences. Once the prosecution have proved possession of a controlled drug, the accused cannot make an application of no case to answer at the close of the prosecution case based upon any failure on their part to prove that he did not know, and had no reasonable ground for suspecting that what he had in his possession was a controlled drug. In terms of making out the defence on the standard of showing a reasonable doubt, it is a decision for the accused as to whether he gives evidence or not. The prosecution may argue in closing submissions to the jury that the particular defence is not made out so as to show a reasonable doubt.
13. In directing the jury on this issue, trial judges should in future, in the view of the Court, give the ordinary direction as to the burden and standard and proof and the presumption of innocence. In stating the burden and standard of proof, however, a trial judge should point out that the prosecution are obliged to prove the elements of possession of the substance, and that the substance is a controlled drug, beyond reasonable doubt. A trial judge should then tell the jury that the burden of proof shifts to the defence to prove the existence of a reasonable doubt that the accused did not know and had no reasonable ground for suspecting that what he had in his possession was a controlled drug. It should be clearly stated that this burden cast on the accused is discharged if the defence prove a reasonable doubt, and no more than that, on that issue.
14. Finally, we should add that there is nothing improper in the prosecution seeking in their case to show evidence whereby that defence, of not knowing or having no reason to believe that what the accused had in their possession was a controlled drug, could be argued by them not to have been made out by the accused. The elements of this case provide an illustration of such prosecution evidence. They relate to the manner of the discovery of the packet, how the gardaí made the rendezvous, what the gardaí knew of the movements and contacts of the accused prior to the possession of the controlled drug and how they had responded on being confronted with relevant evidence; see The People (D.P.P.) v. Lawless (Unreported, Court of Criminal Appeal, 28th November, 1985).
Result
15. For the reasons given, the Court will treat the application for leave to appeal as being the appeal, allow the appeal, and order a re-trial of both applicants.
People (DPP) v Lawel
[2017] IECA 253
JUDGMENT of the Court delivered on the 9th day of October 2017 by
Mr. Justice Hedigan
Introduction
1. This is an appeal against severity of sentence. The appellant entered a guilty plea at Naas Circuit Criminal Court, on the 6th October, 2015, to a s. 15A offence pursuant to the Misuse of Drugs Act 1977 as amended (“the 1977 Act”) arising from the controlled delivery of a parcel containing cocaine. The appellant was sentenced on the 14th March, 2016, when the Court imposed a sentence of 10 years imprisonment. The final three years were suspended on condition that the appellant enter a bond of €200 to keep the peace and be of good behaviour for a period of three years. He was given credit for the period he spent in custody.
2. The offence occurred in 2011 and on the 19th July, 2012, the Circuit Court discharged the appellant from the indictment. An application under s. 4E of the Criminal Procedure Act 1967 was successfully brought claiming that the package containing the controlled drugs was not inspected, seized or detained in accordance with law. The Court of Criminal Appeal reversed this decision (The People (DPP) v. Lawel [2014] IECCA 33). It held that as the package was not addressed to the appellant no constitutional right arose. Therefore, it was an error to find that there was a breach of a constitutional right. Further that s. 4E was not the appropriate method of challenge. It upheld the illegality of the provisions relied upon in the interception. The charges were reinstated. The appellant was at liberty during the time between these two judgments.
The circumstances of the offence
3. The offence occurred on the 25th May, 2011, when the appellant took receipt of a parcel at his home in Co. Kildare which contained €1.4m. worth of cocaine. The delivery was by way of controlled delivery. The parcel was addressed to a fictional person, namely, “Tony Tutu, Honorary Consul of the Republic of South Africa”. It contained a green bag labelled “Diplomatic Mail”. It purported to have been sent by the South African embassy in Venezuela.
4. The parcel arrived at the FedEx depot in Dublin Airport on the 20th May, 2011. It was examined, suspected of containing cocaine and detained. A field test determined that it contained cocaine. Detective Garda John Dunning initiated a controlled delivery. It was delivered on the second attempt. On the 24th May, 2011, there had been no one home and a card with a fictitious telephone number was left. This number was used by someone other than the appellant to arrange delivery for the next day. The appellant accepted the parcel and signed for it using the name Tony Tutu on the 25th May, 2011. The parcel was left inside a front door but not an interior door. It was not secreted in any fashion.
5. Shortly after delivery the appellant was observed leaving the premises in his car. He picked up Mr. Ashola who had been waiting in the estate on foot and handed over the keys to the exterior door. Mr. Ashola came to the premises and immediately left with the parcel. The appellant continued on to his job street leafletting in Swords. Mr. Ashola travelled with the parcel and met a third co-accused. The Gardaiì seized the parcel later that day in Co. Meath. The appellant was placed under surveillance and was arrested later that day.
6. The appellant upon arrest stated that he signed for the parcel for a friend as a favour. During interview at Finglas Garda station he stated he took delivery for a named friend. He stated that he didn’t know there was cocaine in the parcel but that he did know that Mr. Ashola was involved in a class of criminality but not that he was a drug dealer. He also accepted that he didn’t ask what was in the parcel because he didn’t want to know. Further he had expected a smaller parcel than was delivered. He accepted that in doing so he was being reckless. It was on the basis of this recklessness that he entered a guilty plea. Mr. Ashola and another co-accused entered guilty pleas and were sentenced, in a different court, to 10 years with nothing suspended.
The appellant’s personal circumstances
7. The appellant was born in 1980. He was originally from Nigeria. He came to Ireland in 2007 and applied for refugee status which was granted in 2015. He has no previous convictions and had never come to Garda attention before. At the time of sentencing he was living in Galway. He got married in 2014. He has a number of FETAC qualifications dating back to 2009. A city of Dublin Vocational Educational Committees certificates, in relation to the European Computer Driving Licence, together with a future FETAC Certificate, for word processing and such matters, were handed into the Court. These were completed prior to July, 2012 while he was in Cloverhill. At the time of sentencing he was undergoing a course of studies in the national university of Ireland in Galway, which was a DFS1 science and engineering foundation course. This was a preliminary course with the intention of proceeding to fuller studies in information technology in Galway. There were references from his Pastor and a friend as to his character and community ties. At sentencing he had served almost nine months in custody.
8. He felt vulnerable to Mr. Ashola in 2011 due to the uncertainty regarding his immigration status and felt that if difficulties arose Mr. Ashola, who had been in the jurisdiction longer, might be able to assist him. It is accepted by the prosecuting Garda that there was an imbalance of power in that relationship.
9. The appellant had no involvement in setting up the operation or in the distribution thereafter. He had no ownership and was not to receive any profits from the distribution. He received €20 for diesel to get back to his leafletting job. It was accepted by D/Garda Dunning that the appellant was at the lowest rung of the ladder and his admissions reflected his involvement. Further it was accepted that he is unlikely to come to Garda attention again.
10. The appellant cooperated with and assisted the investigation with the knowledge he had which was limited. His account was borne out by the investigation of the electronic devices.
Sentence
11. Before imposing the sentence the judge noted that whilst his involvement was at a low level the appellant was a very important link in a sophisticated and elaborate plot. It was accepted by the prosecuting Garda that the appellant was not aware of the package’s contents albeit he was aware that he was receiving an illegal package. It was further accepted that he had no part in setting up the operation in question and had no role in the distribution of these drugs. The Garda accepted that it was very unlikely he will ever come before the courts again. The judge had regard to s. 27(3) of the Act 1977. In relation to the maximum sentence of life imprisonment the judge was satisfied that the offence was in the higher range. He had regard to the appellant’s personal circumstances.
12. The mitigating factors were that he plead guilty, fully cooperated with the investigation, made admissions and told the Gardaiì everything he knew and in the circumstances, this amounted to materially assisting in respect of the investigation of the offences. He has expressed remorse, he did not receive any financial gain or profit from the drugs and he was not one of the organisers or controllers, in the sense of where the drugs originated. He completed educational courses and was doing an Information Technology course in the university of Galway. He had no previous convictions and had not come to the attention of the Gardaiì since the date of this offence and D/Garda Dunning expressed a view that he’s unlikely to come before the Courts again.
13. The judge noted there were substantial aggravating factors. These were that this is a serious offence. The manner of his involvement in the offence; this was a sophisticated and elaborate operation. He was an essential player in respect of the drugs. He was to receive and accept delivery of the parcel of drugs. The address being used was given as the South African embassy. He was to use a false name in respect of signing for the parcel. It was a controlled delivery. The parcel was delivered to the address; it was signed for by the appellant as Mr. Tony Tutu. The drugs were left inside the door for collection by Mr. Ashola. He collected the drugs approximately 15 minutes later. The South African address and name which were fictitious were used to give cover in respect of the delivery of the parcel containing the drugs. He was acting at all times as the receiver of the drugs and for a short period as the storer by reason of where they were left for collection. He played an important link or part. The drugs had to have a delivery address. There had to be a person available as a receiver for the drugs. On both of these issues he played an important part in respect of the drugs. He played an important link or conduit in respect of the drugs and in respect of the sale or supply of drugs. The substantial amount of drugs, substantial street value and the effect of drugs on society.
14. The judge was satisfied having regard to the appellant’s personal circumstances, the totality of matters and the mitigating factors, a sentence of 10 years would be unjust in all of the circumstances, but it remained an extremely serious case. A sentence of 10 years with the final three suspended was imposed.
Appellant’s submissions
15. In his written and oral submissions the appellant appeals on seven grounds. First, the sentence imposed was excessive and disproportionate in all the circumstances and placed undue emphasis on aggravating factors. It is submitted that the trial judge used the maximum penalty of life imprisonment at the starting base rather than arriving at a “notional sentence” while bearing the maximum sentence in mind and then going back to make deductions. He then considered the offence within the higher range and simply balanced personal mitigation with the aggravating factors. Emphasis was placed on the “sophisticated and elaborate operation” as an aggravating factor and the appellant’s lack of involvement in setting up the operation was disregarded. It is submitted that cases involving similar drug values with greater aggravating factors in relation to the offender’s involvement have received lesser sentences. The appellant only received €20 and was merely reckless in his role of signing for them and allowing them to be left in his porch for 15 minutes. In The People (DPP) v. Bogdan [2016] IECA 70, an appeal against severity, this Court refused to interfere with a sentence of six years where the offender knowingly imported €1.5m. worth of cannabis herb for €5,000. The DPP submitted that the judge appropriately considered all the mitigating and aggravating factors and arrived at a properly constructed sentence.
16. Second, the sentence imposed was excessive and disproportionate in the all the circumstances and failed to adequately take into consideration the relevant mitigating factors. The appellant submits that insufficient weight was given to the mitigating factors, namely; he had no previous convictions; was substantially a person of good character; was a refugee, vulnerable to the approach made; made full and frank admissions and cooperated; that investigations corroborated his admissions as to his extremely limited role; pleaded guilty; provided as much material assistance as was possible; was unlikely to come to further Garda attention; since his release from remand he had moved on with his life, marrying his wife, achieving refugee status, and continuing with his education. In The People (DPP) v. Mannion & Martyn [2016] IECA 162 an entirely suspended sentence was not unduly lenient for Mr. Martyn despite his not spending any time in custody given his lack of previous convictions, that it was a once off offence and his limited role. There was strong mitigation and a period of liberty prior to finalisation. The Court emphasised the sentence Mr. Mannion had already served.
17. Third, the learned trial judge failed to exercise, properly or at all, his discretion to depart from the presumptive minimum sentence. It is submitted that a failure to depart from the headline 10 year sentence was an error in principle. This is especially so as the two co-accused received 10 year sentences and their roles were starkly different.
18. Fourth, he failed to weigh correctly in the balance the evidence in respect of the role of the appellant in the offence, and in particular, erred in law and in fact in determining the sentence with regard to the ‘sophisticated and elaborate’ nature of the importation of drugs, as opposed to the appellant’s role in that operation. It is submitted that the appellant’s role was as close to minimal as it could be. He did not know the parcel contained drugs but was reckless in this regard. He had been expecting a small box. The parcel was left in his porch for 15 minutes. His role was also subject to his vulnerability to an individual with power over him. He had no role in setting up or interest in the enterprise. His sentence should reflect his culpability and his contrasting culpability with his co-accused who received the same sentence without the three year suspension. It was submitted that the trial judge’s analysis failed to consider that a “receiver” could be someone otherwise uninvolved in the enterprise and the appellant’s role did not necessarily result in him being other than on the “lowest rung”.
19. Fifth, the trial judge erred in law and in fact in failing adequately to give the appellant due credit for his guilty plea and the stage at which it was entered. It is submitted that this is so in circumstances where the decision overturning the s. 4E judgment affirmed that the interception was in breach of s. 84 of the Postal and Telecommunications Act 1983. The Court fully upheld the challenge to the legality of the power used to examine the package, pursuant to s. 77, as well as upholding the challenge to the legality of the power of detention of that package pursuant to s. 7, as well as upholding the challenge to the power of seizure of that package, under s. 202 of the Customs Consolidation Act 1876. The Court ruled that it was an illegality rather than a breach of a constitutional right and it was for the Circuit Court judge to determine whether to admit the fruits of that illegality. The appellant, however, instructed to plead guilty. The Court of Criminal appeal judgment was made available to the trial judge. D/Garda Dunning agreed that there remained a degree of complexity to the case and that the plea was of some assistance to the Gardaiì. Inadequate credit was given to the significance of the plea and there was no reference to the context in which it arose.
20. Sixth, the trial judge erred in having undue regard to the sentence imposed on the co-accused and failed to adequately distinguish between their roles and involvement in the offences, and that of the appellant. It is submitted that the three year suspension does not reflect the contrast in full involvement, organisation and remuneration of the co-accused and the appellant’s limited role consisting of limited involvement, no organisation and almost no remuneration. This Court makes significant distinctions in the sentences of co-accused where there are varying degrees of involvement and culpability. In The People (DPP) v. Kilkenny [2016] IECA 348 there were cannabis plants with a potential value of €2.8m. The sentence on foot of an undue leniency appeal was increased from 10 years with 6 suspended to 12 with 4 years suspended. The offender had a central role leasing premises and sourcing machinery. Those tending the plants were given 7 years with 6 suspended on condition that they leave the jurisdiction. It was again held to be proper and necessary that different roles attract different sentences in The People (DPP) v. Mannion [2016] IECA 314.
21. Seventh, the trial judge failed to have regard sufficiently or at all to the efforts made by the appellant in respect of his rehabilitation and further failed to have regard to the objective of rehabilitation insofar as same is a component part of any sentence.
Respondent’s submissions
22. It is submitted that there was no error in principle, the sentence was proportionate, properly constructed, within the range of sentences for similar offences and appropriate consideration was given to all the mitigating and aggravating factors. The respondent, in relation to the first ground of appeal, submits that there is no basis for this proposition. While the trial judge referred to life imprisonment as the “starting base” it was clear that he did not use this as the headline sentence and deduct the mitigating factors from it. He had regard to the sentencing provisions in s. 27(3) of the Act 1977 and assessed where the offence came in the range. The trial judge correctly assessed the offence as being in the higher range. The market value was €1.4m. and the offence was “sophisticated and elaborate”. The trial judge expressly considered that the appellant did not gain financially from the drugs and was uninvolved in the organisation and control of the drugs. The appellant was considered an important link who signed for the drugs using a false name. his lesser involvement is reflected in the suspended element of his sentence which his co-accused did not receive.
23. In relation to Bogdan it is submitted that the DPP made its submissions in response to the arguments raised by the appellant therein.
24. The respondent submits that while the quantity and type of drugs is not determinative it is highly relevant when sentencing especially when assessing the headline sentence. In The People (DPP) v. O’Mahony & Brennan [2014] IECA 57 an unsuccessful appeal was brought against a sentence of 13 years with the final three suspended where a plea had been entered on the first occasion in relation to cocaine and heroin valued at €3.5m. Both accused had no previous convictions and had chronic addiction issues which they took very positive steps in dealing with. The Court of Appeal held there was no error in principle in not departing from the mandatory minimum sentence due to the value and quantity of drugs. In The People (DPP) v. Devlin & Delvin [2016] IECA 125, which involved €1.3m. worth of cannabis, the Court found that that it could not conclude that the sentencing judge fell into error in imposing sentences of 12 years with the final two and four years suspended respectively. The starting point was not excessive. The four year suspension addressed the significant mitigating factors. In The People (DPP) v. Byrne [2015] IECA 289, where the accused pleaded to possessing cannabis valued at €1.5m., this Court did not disturb the sentence of 12 years but increased the suspended portion from three years to four and a half.
25. In relation to the second ground of appeal the respondent submits that there is no basis for it. The trial judge expressly identified the appellant’s personal circumstances and the mitigating factors. The weight attached to the latter is evidenced in the ultimate sentence imposed, the suspended period and the street value involved. It is submitted that given the language used in the legislation and the stage the plea was entered or intention to do so indicated that it could not be considered an early plea. The appellant is not entitled to the same credit he would have received if the plea had been entered at a much earlier stage. In Mannion & Martyn this Court found the sentence imposed on Mr. Mannion to be unduly lenient. This was a highly unusual case and is limited to its own facts. While it was held that a fully suspended sentence was not inappropriate for Mr. Martyn that case involved cannabis valued at €200,000. The appellant herein found himself at liberty in radically different circumstances.
26. In relation to the third ground of appeal it is submitted that the trial judge specifically considered whether there were exceptional and specific circumstances relating to the offence which would render the maximum/minimum sentence of 10 years or a higher sentence unjust. He exercised his discretion in departing from the presumptive minimum. He noted it remained an extremely serious case. The trial judge considered the provision, considered it unjust to impose and then rightly placed the offence on the scale of penalties, had regard to the aggravating factors and discounted for the mitigating factors.
27. In relation to the fourth ground of appeal it is submitted that the trial judge identified and correctly addressed the appellant’s role and discounted for it. The trial judge identified the important role the appellant played in the offence. His lesser role was reflected in the suspended element of the sentence. The appellant’s analysis of the trial judge’s comments is not correct. He was the receiver in that he signed for the parcel in a false name at a false address and as such was an important link.28. In relation to the fifth ground it is submitted that the appellant successfully had his charges dismissed and was released and argued in the appeal that the judge had been correct in so doing. The appellant contended that he instructed that the matter not be appealed further or used at trial but to enter a guilty plea. It is submitted that the appellant is trying to have his cake and eat it. The appellant should get credit for his plea and should not receive a greater penalty for his s. 4E application. However, his argument ignored that he contested the proceedings before pleading. The legislation refers to the point at which an intention to plead was indicated. The appellant received the appropriate credit.
29. In relation to the sixth ground of appeal it is submitted that he did receive a lesser sentence than the co-accused who entered guilty pleas and do not appear to have brought s. 4E applications. There were no grounds advanced to support the proposition that the three year suspension does not reflect the marked contrast in full involvement, organisation and remuneration.
30. In relation to the seventh ground of appeal it is submitted that no grounds were advanced to support this proposition.
Decision
31. There is no doubt but that the offence involved herein was of the most serious nature. The appellant pleaded guilty in the Circuit Criminal Court to a charge under s. 15A and s. 27 of the Misuse of Drugs Act 1977 (as amended). This arose from circumstances where he received by arrangement, a postal delivery using a false name, of a consignment of cocaine valued at €1.4 m. This was, as the learned trial judge pointed out, a sophisticated and elaborate operation. The appellant was an essential player in that operation.
32. The learned trial judge heard detailed evidence from the prosecuting Detective Garda John Dunning of the circumstances of the case. The consignment was intercepted at Dublin Airport and identified as containing cocaine. A Garda controlled delivery was made to an address fictitiously described as a part of the South African embassy. The package was delivered and seen to be signed for and received by the appellant. It was placed inside an external door but outside an internal door. It was left there by the appellant while he went by car and picked up one of the two co-accused who was a main player in this drug dealing operation. This man was brought back to the house and departed with the consignment. The appellant was paid €20 as a contribution to the cost of diesel to get him back to Swords to continue his job of leafleting.
33. Detective Garda Dunning gave evidence of the appellant’s role in this drug operation. He accepted that he did not know the package controlled drugs albeit he was aware of its suspicious nature. The Detective Garda agreed that the plea made was on the basis that the appellant was reckless as to the contents of the package. He also agreed that the appellant was under the influence of the man who asked him to take delivery. There was, the Detective Garda agreed, an imbalance of power in the relationship. The appellant was a vulnerable person, he agreed. The Detective Garda also agreed that the appellant had no role in setting up the operation nor any role in subsequent distribution. He agreed that the appellant had no ownership of the drugs nor was he to share in any of the profits of the sale thereof. He agreed the appellant was at the lowest rung of the ladder. He had never come to the attention of the Gardaí before and Garda Dunning considered it unlikely he would ever again. He further stated that the appellant gave substantial cooperation to the Gardaí and thus materially assisted in the investigation of the offence.
34. The learned trial judge accepted all of the above evidence and clearly based his decision to disapply the mandatory minimum sentence of ten years on the exceptional and specific circumstances as found in this case. It is indeed, in the Court’s view, quite exceptional that the prosecuting Garda accepted the appellant did not know that he was handling drugs when he received the special delivery. He also clearly took account of all these mitigating factors when he suspended the last three years of the sentence. Was he correct however when he took as his starting point a ten year sentence? This was the same sentence as that imposed on the two co-accused who, it was accepted, were the masterminds of this drug operation and who would be the full profiteers therefrom. Even allowing that they received no suspensory element to their sentences, is there a disproportion present here between their sentences and the appellants? The Court must consider each offender and each offence in their own light. Here by all accounts the appellant was in effect a “patsy” for two shrewd criminals. This offence was a first offence for him. He in effect received no money for his role only a minor contribution to the cost of driving between Swords and Athy. The three year suspension amounted to a 30% reduction but the Court notes that a rough figure of 25% reduction would have been justified by the guilty plea alone in most similar cases. That only allows a 5% allowance in respect of all the other mitigating factors found present herein. That does not appear to be a sufficient allowance. Thus while the Court acknowledges the meticulous care with which the learned trial judge approached the sentencing herein, we consider such a 5% discount to be inadequate in all the circumstances and thus we identify an error in principle. We will therefore quash the sentence imposed by the court below and will proceed to resentence the appellant.
35. The appellant has furnished reports demonstrating that he has made very substantial efforts at rehabilitation. It is to be hoped he will continue to do so. It seems to the Court that taking into account all the mitigating factors outlined above, there are indeed present the exceptional grounds to justify disapplication of the mandatory sentence. We consider that the appropriate sentence is one of six years with the final 18 months suspended on the same conditions on the same conditions as were imposed in the Circuit Criminal Court. This should include as credit the almost nine months that the appellant spent in custody on remand from 26th October, 2011 to 19th July, 2012.
People (DPP) v Power
[2007] I.E.S.C. 31
JUDGMENT of Mr Justice Finnegan delivered on the 26th day of July 2007
The appellant was charged with an offence contrary to section 15A of the Misuse of Drugs Act 1977 as inserted by section 4 of the Criminal Justice Act 1999. He stood trial at Waterford Circuit Criminal Court on the 26th, 27th and 28th November 2004. The defence did not go into evidence. The appellant was convicted and sentenced to ten years imprisonment. In the course of requisitions on the learned trial judge’s charge counsel for the appellant made a submission in the following terms –
“There is just one matter, My Lord, if I may bring to Your Lordship’s attention…I think it is incumbent on Your Lordship to indicate that the jury must be satisfied that the accused knew or ought to have known at the time of the value of the drugs. It is a matter for Your Lordship.”
The learned trial judge refused the application. Leave to appeal was refused and the appellant applied to the Court of Criminal Appeal for leave to appeal. The grounds of the application included the following –
“That the learned trial judge erred in law and in fact in failing to direct the jury that it was a necessary ingredient in the offence contrary to section 15A that the accused was aware that the quantity of the controlled drug alleged to be in his possession exceeded the statutory amount.”
In an ex tempore judgment on the 22nd May 2006 the Court of Criminal Appeal held that section 15A properly interpreted does not require a mens rea element in relation to the value of the drugs involved in the offence. To succeed it is necessary for the prosecution to objectively establish that the value of the controlled drugs are of the statutory value or greater. It is not necessary to prove that the accused knew or ought reasonably to have known that such was the value. Any other interpretation would make section 15A unworkable. The appellant applied for a certificate under section 29 of the Courts of Justice Act 1924 (as substituted by section 22 of the Criminal Justice Act 2006) and the Court of Criminal Appeal certified that its decision involved a point of law of exceptional public importance that is to say –
“In the prosecution of an offence contrary to section 15A of the Misuse of Drugs 1977 (as inserted by section 4 of the Criminal Justice Act 1999) what mens rea must the prosecution prove?.”
The statutory provisions
The long title to the Misuse of Drugs Act 1977 reads as follows –
“An Act to prevent the misuse of certain dangerous or otherwise harmless drugs, to enable the Minister for Health to make for that purpose certain regulations in relation to such drugs, to enable that Minister to provide that certain substances shall be poisonous for the purposes of the Pharmacy Acts 1875-1962, to amend the Pharmacopoeia Act 1931, the Poisons Act 1961, the Pharmacy Act 1962, and the Health Acts 1947-1970, to repeal the Dangerous Drugs Act 1934, and section 78 of the Health Act 1970, and to make certain other provisions in relation to the foregoing.”
The Act contains provisions regulating the manufacture, importation, supply, transportation and prescription of controlled drugs but more particularly creates a number of offences relating to the possession of controlled drugs in sections 3, 15, 16 and 17. Defences generally are dealt with in section 29 of the Act which insofar as is relevant to this appeal provides as follows –
“29(1) In any proceedings for an offence under this Act in which it is proved that the defendant had in his possession or supplied a controlled drug, the defendant shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance, product, or preparation in question was the particular controlled drug alleged.
(2) In any such proceedings in which it is provided that the defendant had in his possession a controlled drug or a forged prescription, or a duly issued prescription altered with intent to deceive, it shall be a defence to prove that –
(a) he did not know and had no reasonable grounds for suspecting –
(i) that what he had in his possession was a controlled drug or such a prescription, as may be appropriate, or
(ii) that he was in possession of a controlled drug or such a prescription, as may be appropriate, or
(b) he believed the substance, product or preparation to be a controlled drug, or a controlled drug of a particular class or description, and that, if the substance, product or prescription had in fact been that controlled drug or a controlled drug of that class or description, he would not at the material time have been committing an offence under this Act, or
(c) knowing or suspecting it to be such a drug or prescription, he took or retained possession of it for the purpose of –
(i) preventing another from committing or continuing to commit an offence in relation to the drug or document, as may be appropriate, or
(ii) delivering it into the custody of a person lawfully entitled to take custody of it,
and that as soon as practicable he took all such steps as were reasonably open to him to destroy the drug or document or to deliver it into the custody of such a person.”
The Criminal Justice Act 1999, the long title thereof, commences as follows –
“An Act to create a new drug offence…”
Part II of the Act is entitled –
“Amendments to provide for new drug related offence”.
In Part II, section 4 provides as follows –
“4. The Act of 1977 is hereby amended by the insertion after section 15 of the following section:
‘15A(1) A person shall be guilty of an offence under this section where –
(a) the person has in his possession, whether lawfully or not, one or more controlled drugs for the purpose of selling or otherwise supplying the drug or drugs to another in contravention of regulations under section 5 of this Act, and
(b) at any time while the drug or drugs are in the person’s possession the market value of the controlled drug or the aggregate of the market values of the controlled drugs, as the case may be, amounts to £10,000 (€13,000) or more.
(2) Subject to section 29(3) of this Act (as amended by section 6 of the Criminal Justice Act 1999), in any proceedings for an offence under this section, where –
(a) it is proved that a person was in possession of a controlled drug, and
(b) the court, having regard to the quantity of the controlled drug which the person possessed or to such other matters that the court considers relevant is satisfied that it is reasonable to assume that the controlled drug was not intended for his immediate personal use.
he shall be presumed, until the court is satisfied to the contrary, to have been in possession of the controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations under section 5 of this Act.
(3) If the court is satisfied that a member of the Garda Siochána or an officer of customs and excise has knowledge of the unlawful sale or supply of controlled drugs, that member or officer, as the case may be, shall be entitled in any proceedings for an offence under this section to be heard and to give evidence as
to –
(a) the market value of the controlled drug concerned, or
(b) the aggregate of the market values of the controlled drugs concerned.
(4) No proceedings may be instituted under this section except by or with the consent of the Director of Public Prosecutions.
(5) In this section –
‘market value’, in relation to a controlled drug means the price that drug could be expected to fetch on the market for the unlawful sale or supply of controlled drugs;
‘an officer of customs & excise has the same meaning as in section 6 Criminal Justice (Drug Trafficking) Act 1966.’”
The appellant’s submissions
The appellant’s submissions may be summarised as follows –
1. In the prosecution of any crime there is a presumption that the prosecution bear the burden of proving mens rea in relation to every element of the actus reus.
2. The Criminal Justice Act 1999 created a new offence contrary to section 15A of the Misuse of Drugs Act 1977 (as inserted by section 4 of the Criminal Justice Act 1999). Mens rea must be proved in relation to each constituent element of the offence. A constituent element of the offence is that the value of the drugs must be €13,000 or over.
3. The potentially onerous burden of proving mens rea is not a factor to be considered in the construction of the statute.
I propose dealing with each of these submissions in turn.
1. In the prosecution of any crime there is a presumption that the prosecution bears the burden of proving mens rea in relation to every element of the actus reus.
This is undoubtedly so. In The People (D.P.P.) v Murray [1977] I.R. 360 at 386 Walsh J. said –
“It is well established that, unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, a court cannot find a person guilty of an offence against the criminal law unless he has a guilty mind.”
Again at p.399 Henchy J quoted with approval Lord Reid in Sweet v Parsley [1970] AC 132 at 148 –
“Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who are in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.”
Henchy J. went on to say –
“Admittedly Lord Reid was referring to a whole offence rather than a constituent element of an offence, but the basis for the presumption is the same in both cases, i.e. to avoid the unjust or oppressive application of the section to those who have not merited the guilt and punishment envisaged by the section either because they are totally blameless or because their blameworthiness is only such as to attract guilt for a lesser offence.”
That passage from Sweet and Parsley was again approved by this court in C.C. v Ireland, the Attorney General and Others [2005] IESC 48: where Denham J. said –
“I am satisfied that this statement reflects the common law in this jurisdiction also and I would adopt and apply this statement.”
It is thus settled Irish law that where a criminal offence is created by statute, and the statute is silent as to mens rea, there is a presumption that mens rea is required in relation to the offence as a whole and in relation to each constituent part of the offence. The presumption can only be displaced by clear words or by necessary implication.
2. The Criminal Justice Act 1999 created a new offence contrary to section 15A of the Misuse of Drugs Act 1977 (as inserted by section 4 of the Criminal Justice Act 1999). Mens rea must be proved in relation to each constituent element of the offence. A constituent element of the offence is that the value of the drugs must be €13,000 or over
(a) Appellant’s submission
On behalf of the appellant it is then submitted that section 15A creates a new offence and is wholly different from an offence under section 15 having the additional element that the value of the drugs possessed must be €13,000. This court accordingly should have regard to the decision in The People (D.P.P.) v Murray. The court was there concerned with the Criminal Justice Act 1964, section 1, which created the offence of capital murder. The Court of Criminal Appeal held that the offence of capital murder was not a new offence and that an accused may be convicted of that offence where the prosecution proved the ingredients required to constitute mens rea in regard to murder and the fact that the person murdered was a member of the Garda Siochána acting in the course of his duty. The Supreme Court held that the offence was a new statutory offence and that it requires proof of mens rea in relation to each of its constituent elements and accordingly it was necessary to establish by proof that the victim was known by the accused at the time of the killing to be a policeman acting in the course of his duty. In the course of his judgment Walsh J. at p.381 said –
“I respectfully agree with what was said in the judgment of the Court of Criminal Appeal dealing with the point when it said –
‘If capital murder is a new offence or a new variety of an existing offence, there would be a presumption at common law that it was the intention of the Oireachtas that an accused person was not guilty unless he had a mens rea in relation to all the ingredients of the offence. That would mean that no person could be convicted of the capital murder of a member of the Garda Siochána unless the prosecution established that the accused knew that the victim was a member of the Garda Siochána and was acting in the course of his duty. That presumption might be rebutted by the express or implied intention of the Oireachtas to be gathered from the language of the statute and the nature of the subject matter with which it dealt.’”
(b) Respondent’s submission
The respondent accepts that section 15A created a new statutory offence but makes the following submissions. The effect of section 15A is to add a further element to conduct already criminalised by section 15 of the Act, the possession of controlled drugs for the purposes of sale or supply. It does not alter or increase the maximum penalty applicable. Its effect is to impose a presumptive minimum mandatory sentence where the value of the drugs is €13,000 or more. Section 15A does not in express terms require the prosecution to prove knowledge in relation to the value of the controlled drugs. As with section 15 the prosecution must prove –
(a) Possession and
(b) Possession for the purposes of sale or supply.
The requirement that the value of the drugs be €13,000 or more is, it is submitted, an element of the actus reus and must be proved by the prosecution in evidence. The value is a constituent of the possession which the prosecution is required to prove.
In People (D.P.P.) v Byrne, Healy and Kelleher [1998] 2 I.R. 417 the Court of Criminal Appeal was concerned with an offence contrary to section 15 of the Misuse of Drugs Act 1977 (as amended) – possession of controlled drugs for the purpose of sale or supply. The appellants were found in possession of bales wrapped in an opaque material so that it would not have been possible to ascertain visually or by smell or touch that they contained cannabis resin. It was submitted that there was no evidence, or insufficient evidence, adduced on behalf of the prosecution to establish that they had guilty knowledge of the contents of the bales. The Court of Criminal Appeal cited with approval R. .v. McNamara [1988] 87 Cr.App.R 246 where Lane LCJ at 251
said –
“It seems to us, in order to make sense of the provisions of section 28 (of the English Misuse of Drugs Act 1971 and which contained provisions broadly corresponding to the Misuse of Drugs Act 1977 section 29(2)(a)) and also to make clear as can be possible the decision in Warner v Metropolitan Police Commissioner, the draftsman of the Act intended that the prosecution should have the initial burden of proving that the defendant had, and knew that he had, in these circumstances the box in his control and also that the box contained something. That, in our judgment establishes the necessary possession. They must also, of course, prove that the box in fact contained the drug alleged, in this case cannabis resin. If any of those matters are unproved, there is no case to go to the jury.”
The court then cited with approval a passage from Archbold on Criminal Pleading Evidence and Practice [1997] Ed. at para. 26.59 –
“The 1971 Act places the initial burden of proving that the defendant had, and knew that he had, a package in his control and that the package contained something upon the prosecution. That establishes the necessary possession. The prosecution must also prove that the package contained the drug alleged. If any of those matters are unproved there is no case to go to the jury. Once those matters are proved the burden is cast on the defendant to bring himself within section 28(2) and (3): See Lord Lane C.J. at p.252 (of McNamara).”
The Court of Criminal Appeal expressed itself satisfied that this is also a correct statement of the law in this jurisdiction in relation to an offence under section 15 of the 1977 Act.
The respondent further relied on the decision of the House of Lords in R v Lambert [2002] 2 A.C. 454. That case considered whether the offence of possession for the purposes of sale or supply under the English Misuse of Drugs Act 1971 and the provisions of section 28 of that Act, which cast upon a defendant the burden of proving that he did not know that what he had in his possession was a controlled drug was in conflict with the European Convention on Human Rights. That not being an issue in the present case the decision is of little assistance save that it confirmed the House of Lords decision in McNamara.
In summary then the respondent’s submission is that when construed in the context of section 15 and the onus thereby imposed upon the prosecution it is clear by necessary implication that on a prosecution pursuant to section 15A the legislative intention was not to impose an onus on the prosecution in relation to knowledge of the value of the controlled drugs involved.
(c) Decision
In construing section 15A the court must have regard to the established Irish jurisprudence that mens rea must be proved by the prosecution in respect of each element of a statutory offence unless the statute expressly or by necessary implication provides otherwise. Read in isolation section 15A does not expressly or by necessary implication provide otherwise. That is not an end to the matter however. In construing an enactment the court must take into account the state of the law at the time the enactment was passed. In particular Acts in pari materia “are to be taken together as forming one system and as interpreting and enforcing each other:” R v Holland Palmer [1785] 1 Leach 352 at 355. They are to be construed as one, whether or not the relevant enactment expressly requires this: Rainey v Greater Glasgow Health Board [1987] AC 224 at 240. Lord Mansfield in R. v Loxdale [1758] 1 Burr. 445 at 447 stated
“Where there are different statutes in pari materia, though made at different times, or even expired and not referring to each other, they shall be taken and construed together as one system and as explanatory of each other.”
It is thus necessary to consider whether the Misuse of Drugs Act 1977, the Misuse of Drugs Act 1984, and the Criminal Justice Act 2006, section 81, are in pari materia and so to be considered together. Before proceeding to do so one matter arises. It was submitted on behalf of the appellant that regard should be had to the Criminal Justice Act 2006 which was enacted subsequent to the events with which the court is concerned. Section 81 of the act provides as follows –
“81(1) Section 15A of the Act of 1977 is amended by the insertion of the following subsection after subsection (3):-
‘(3A) In any proceedings for an offence under this section it shall not be necessary for the prosecutor to prove that a person knew that at any time while the controlled drug or drugs concerned were in the person’s possession that the market value of that drug or the aggregate of the market values of those drugs, as the case may be, amounted to €13,000 or more or that he or she was reckless or that regard.”
(2) This section shall not have effect in relation to proceedings for an offence under section 15A of the Act of 1977 instituted before the commencement of this section.”
It is well settled that subsequent legislative history is relevant only as to the view which the legislature took, whether correctly or not, regarding the law with which the enactment deals. There is, however, no question of that history being admissible on a pure question of what the pre-Act law was. See Bennion on Statutory Interpretation 2nd edition Code s.210 and s.226. Thus the Act of 2006 is of no assistance in the interpretation of section 15A.
The Misuse of Drugs Act 1984, section 16(3) provides that the 1977 Act and the 1984 Act may be cited together as the Misuse of Drugs Act 1977 and 1984 and that they shall be construed together as one Act. Acts which are required to be construed as one are in pari materia: Bennion op cit Code s.261. Again this is true of Acts which have been given a collective title. Bennion op cit Code s.262. Likewise Acts having short titles that are identical Bennion op cit Code s.249. These two Acts accordingly constitute a code.
The Criminal Justice Act 1999 part II is entitled –
“Amendment to provide for new drug related offence”.
Of the four sections in that part, three effect amendments to the Act of 1977. The fourth amends section 3(1) of the Criminal Justice Act 1994 the short title to which reads as follows –
“An Act to make provision for the recovery of the proceeds of drug trafficking and other offences, to create an offence of money laundering, to make provision for international co-operation in respect of certain criminal law enforcement procedures and for forfeiture of property used in commission of crime and to provide for related matters.”
The 1994 Act contains provisions for the making of restraint orders and confiscation orders in respect of the proceeds of drug trafficking but also in relation to money laundering generally. The effect of the amendment to section 3(1) of the Act of 1994 is to include therein a reference to section 15A of the Misuse of Drugs Act 1977. Having regard to these circumstances I am satisfied that Part II of the Criminal Justice Act 1994 is in pari materia with the Misuse of Drugs Acts 1977 and 1984 and that those Acts together with (at the least) Part II of the 1994 Act constitute a code.
It follows from this that in construing section 15A the court should have regard to both section 15 and sections 29(1) and (2) of the Act of 1977. The offences created by section 15 and section 15A are in identical terms the latter however having the additional requirement that the value of the controlled drugs amounts to €13,000 or more. In Re Cathcart, Ex Parte Campbell [1868] 5 Ch.App. 603 at 706 James L.J. said –
“Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the legislature has repeated them without alteration in the subsequent statute, I can see the legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given them.”
Having regard to the decision in The People (D.P.P.) v Byrne, Healy and Kelleher the identical words in section 15(1) and 15A(1) being part of a code should be accorded the same meaning and effect. It follows that in order to succeed in a prosecution under section 15A it is necessary for the prosecution to prove that the accused has in his possession or control a package and that the package contained something. It is unnecessary to prove that the accused knew that the package contained a controlled drug. In addition the prosecution must establish the value of the drug and in order to do so may rely on evidence given pursuant to section 15A(3). As it is not incumbent on the prosecution to prove that the accused knew that the package contained controlled drugs. It would be absurd to construe section 15A as requiring the prosecution to prove that he had knowledge of the value of the drugs, his knowledge of the existence of which the prosecution is not required to prove. To import into section 15A the requirement for knowledge of the value of the controlled drugs would lead to two sections of the same code expressed in exactly the same words being given an inconsistent construction. Where such an inconsistency would arise the so called “golden rule” expounded by Parker C.B. in Mitchell v Torrup [1766], Parke 227, does not apply –
“In expounding Acts of Parliament where words are expressed plain and clear the words ought to be understood according to the plain and natural signification and import, unless by such exposition a contradiction or inconsistency would arise in the Act by reason of some subsequent clause from which it might be inferred that the intent of Parliament was otherwise.”
In the present case it is appropriate to substitute for “Act” “code”.
Having regard to the foregoing I am satisfied that by necessary implication and on its true construction section 15A as to the constituent of the offence thereby created relating to the value of the controlled drugs does not require the prosecution to establish knowledge on the part of the accused of the market value of the controlled drugs in question.
3. The potentially onerous burden of proving mens rea is not a factor to be considered in the construction of the statute
Having found that mens rea in relation to the value of the controlled drugs is not a necessary constituent of an offence under section 15A of the Misuse of Drugs Act 1977 on the true construction of that section it is unnecessary to deal with the utilitarian argument which was considered by the Court of Criminal Appeal.
Disposition
I would answer the certified point of law as follows. In the prosecution of an offence contrary to section 15A of the Misuse of Drugs Act 1977 (as inserted by section 4 of the Criminal Justice Act 1999) it is not necessary that the prosecution prove that the accused knew or ought to have known that the market value of the controlled drug or the aggregate of the market values of the controlled drugs, as the case may be, amounts to €13,000 or more.
Bowes v Devally
[1995] 2 ILRM 148
Geoghegan J
This is an application by way of judicial review for an order of certiorari quashing an order of the Circuit Court for the forfeiture of 890 upon affirming a District Court conviction for unlawful possession of drugs contrary to s. 3 of the Misuse of Drugs Act 1977 as substituted by s. 6 of the Misuse of Drugs Act 1984. The application is made pursuant to leave granted in the High Court by order of Flood J made 21 February 1994.
I should state at the outset that there is a technical problem about the actual form of the relief sought. The relief sought in the statement required to ground the application for judicial review reads as follows:
An order of certiorari by way of an application for judicial review of the order of forfeiture of 890 Irish punts, property of the applicant, such order made by the first named respondent on 1 November 1993 under s. 30(1) Misuse of Drugs Act 1977, affirming the order of Kilmainham District Court, Dublin made on 25 February 1992.
It seems clear that the actual order made by Judge Devally on the hearing of the District Court appeal was simply a dismiss of the appeal and an order affirming the order of the District Court. There is therefore no express reference to a forfeiture in Judge Devallys order. But the operative part of the District Court order made by Judge Hussey reads as follows:
And I did adjudge that the said defendant be convicted of the said offence and pay for penalty for said offence the sum of 75 within one month, and in default of payment of the said sum within the said period that she be imprisoned in Mountjoy Prison in said district for the period of fifteen days unless the said sum be sooner paid and did further order that money be forfeited.
If this Court was to quash Judge Devallys order only in so far as it affirmed the forfeiture part of the District Court order, that would be a clear severance and, in my view, not permissible (see State (Kiernan) v. de Burca [1963] IR 348). Counsel for the Director of Public Prosecutions very properly has not suggested that I should refuse the application on that ground alone. I am therefore approaching the case on the basis that if I come to the conclusion that the forfeiture complained of was made without jurisdiction, I should quash the entire order of the Circuit Court and make such further consequential orders as may be appropriate.
I turn now therefore to the substantive complaint being made in this application. The applicant was convicted of being in possession of drugs simpliciter. The drugs found were a small quantity of cannabis resin and at the same time there was found to be in the possession of the applicant a sum of 890. There was evidence before the Circuit Court judge that the sum of money was found in the same room as the cannabis resin. A forensic report was admitted in evidence and that report established that there were traces of cannabis resin on the money. The applicant gave evidence to the effect that the money was the property of her mother and that she was minding the money for her. She could not account for the traces of cannabis found on the money. Independently of any of the case law which has been opened to me by Mrs Jacobs, counsel for the applicant, I take the view that as a matter of construction of s. 30 of the Misuse of Drugs Act 1977, it was not open to the Circuit Court judge to make the forfeiture order. I have arrived at this view reluctantly because both Judge Hussey in the District Court and Judge Devally in the Circuit Court took a different view.
Mr Hogan, counsel for the respondents, argues that it is not sufficient for me to disagree with the Circuit Court judge and that the order must stand if there was any evidence at all on which he could possibly have been satisfied that the money related to the offence within the intention of the section. He goes on to argue that the traces of cannabis resin on the money was sufficient evidence. I entirely accept Mr Hogans submission as to how I must approach the matter but having done so I find it impossible to discern any evidence on which the Circuit Court could have been satisfied that the money related to the offence for which the applicant was convicted. Even if the judge drew an inference that the money was intended to be used to acquire more drugs, it had no relevance to the actual offence for which the applicant was convicted. If she had been convicted for selling drugs, the position might have been different as the question would then have arisen as to whether the money was the proceeds of that sale.
The view which I have taken seems to be borne out by the English case law relating to similar legislation and relied upon by counsel for the applicant, Mrs Jacobs. In the case of R. v. Cuthbertson [1981] AC 470, the House of Lords had to consider the similar English section. Lord Diplock makes it clear that it is necessary to connect the specific thing to be forfeited with the particular substantive offence to which it related (see p. 406). In the case of R. v. Ribeyre (1982) 4 Cr App R (S) 165, it was held by the English Court of Appeal in a judgment delivered by Taylor J (as he then was) that if money is to be forfeited it would have to be related to the actual offence for which the appellant had been convicted. The Court followed an earlier decision of R. v. Morgan [1977] Crim LR 438 in which it was held that the fact that the money may have been part of the offenders working capital for the purpose of his trade in drugs did not justify a forfeiture order if the money was not related to the actual conviction. Again in the case of R. v. Llewellyn (1985) 7 Cr App R (S) 225, the English Court of Appeal held that the power to order forfeiture of property under similar legislation in England applied only to property shown to be connected with the offence of which the offender was convicted and it was not sufficient that it should be established that the money represented the appellants working capital if it did not relate to the cannabis in his possession on the day of the search. A later decision of the English Court of Appeal in R. v. Cox (1986) 8 Cr App R (S) 384 is along similar lines. Indeed that does not exhaust the full list of the cases relied upon by Mrs Jacobs. What clearly emerges is that the forfeiture is part of the penalty and the circumstances in which a forfeiture can be made must therefore be strictly construed. By the clear wording of the section, the property must be related to the particular offence and there was no evidence in this case which would warrant a court being satisfied as to the connection. I am therefore satisfied that the forfeiture order was made without jurisdiction, the statutory precondition not having been fulfilled. For the reasons which I have indicated earlier in the judgment, I must quash the entire order of the Circuit Court. But having done that, I am satisfied that it is manifestly a case where I ought to exercise my discretion under O.84 r.26(4) of the Rules of the Superior Courts and remit the matter back to the Circuit Court with a direction to reconsider it and reach a decision in accordance with the findings of the court. This does not mean that the Circuit Court should re-hear the matter. The Circuit Court has already done so and Judge Devally has made a perfectly valid decision in relation to both conviction and sentence apart from the forfeiture. All that is required now is for the learned Circuit Court judge to make a new order varying the order of the District Court by removing the order for forfeiture but otherwise affirming the District Court order. On that basis the case shall be remitted accordingly.
People (DPP) v Rattigan
[2018] IECA 315JUDGMENT of the Court delivered on the 10th of October 2018 by Mr. Justice Edwards.
Introduction
1. On the 12th of February 2013 the appellant was convicted by the Special Criminal Court following a trial on indictment of the following offences:
• Count No. 1, being in possession of a controlled drug, to wit Diamorphine, with a market value of €13,000 or more, for the purpose of selling or otherwise supplying it to another, contrary to s.15A of the Misuse of Drugs Act, 1977, as inserted by s.4 of the Criminal Justice Act 1999 and as amended by s.81 of the Criminal Justice Act, 2006;
• Count No. 2, being in possession of a controlled drug, to wit Diamorphine, for the purpose of selling or otherwise supplying it to another, contrary to s.15 of the Misuse of Drugs Act, 1977;
• Count No. 3, being in possession of a controlled drug, to wit Diamorphine, contrary to s.15 of the Misuse of Drugs Act, 1977.
2. The appellant was acquitted on two additional charges being Count No’s 4 & 5, respectively, on the same indictment, each of which alleged offences under s.36 of the Prisons Act 2007, involving having possession of a mobile telecommunications device within a prison without the permission of the governor of the prison.
3. On the 20th of March 2013, the appellant was sentenced to imprisonment for seventeen years on Count No. 1 and Count No. 2, respectively; and to imprisonment for five years on Count No. 3; all sentences to run concurrently and to date from the 1st of June 2008.
4. The appellant now appeals against his conviction.
The evidence on which the appellant was convicted.
5. The Special Criminal Court heard evidence that, on the 21st May 2005, a search took place at 9 Hughes Road South, Walkinstown, Dublin 12, and this search took place on foot of a search warrant that had been obtained in circumstances wherein Detective Inspector Brian Sutton had come into receipt of confidential information that there was a large quantity of drugs to be found at the abovementioned address and it was going to be moved quickly.
6. A search warrant was therefore obtained and a team of Gardaí arrived at 9 Hughes Road South and a search was subsequently carried out. As a result of the search a large quantity of diamorphine, which was said to have a street market value of close to €1 million, was discovered in a shed at the back of the house. Additionally, a red and white Nokia phone and charger, which were charging at the time, were found in the same garden shed. Furthermore, an electric weighing scales was also found in the house itself, which was the house of Mr Anthony O’Connell. In Mr O’Connell’s bedroom a large sum of money at the base of the bed, and another smaller sum elsewhere in the bedroom, and another small sum in pockets, with a total value of €36,000 were also found.
7. During the search of 9 Hughes Road South a number of other telephones and telephone devices, namely SIM cards, were also found and seized. During the search a man by the name of Mr Anthony Cannon called to the house. He was searched and his phone was seized.
8. On the red and white Nokia phone there was a text message and the content of that text message appeared to be for the break-up of a large amount of drugs into particular portions and for the division of a large quantity of heroin. That text message had been sent from a telephone device with the phone number – 0858102394. This number was associated with the appellant. At that stage he was a prisoner in Portlaoise Prison and had been in custody since 2003.
9. As a result of that discovery, search warrants were obtained on the following day, the 22nd of May 2008, to search a number of cells at Portlaoise Prison, including the cell occupied by the appellant on Landing E1, cell 42. The Gardaí attended at Portlaoise Prison, presented their warrants, were subjected to security procedures, searched, etc., and were brought to Landing E1. The Gardaí thereafter searched the appellant’s cell. This was a single cell which was not shared with anyone else. He was on his bed with a mobile phone in his hand but, as the Gardaí were entering his cell, he threw the mobile phone out the door onto the landing. There was also CCTV footage which showed the mobile phone landing out on the landing. The phone that came out on the landing had two SIM cards, one of which was located in the actual mobile phone while the other was attached to the back of the mobile phone. A further search of the cell uncovered a Samsung mobile phone, another SIM card and some notebooks. The text message found on the red and white Nokia phone found charging in the garage of 9 Hughes Road South had been sent from the same number, 0858102394, which was the number of one of the devices thrown by the appellant from his cell onto the landing.
10. There was a text message found on Mr Anthony Cannon’s mobile phone (this man arrived at 9 Hughes Road South as the Gardaí were conducting a search) and this shows as having been received at 10.29 am which reads: “That dark is there.” The trial court had heard evidence that “dark” is a slang word for heroin and that this was a message from a device in the control of the appellant in Portlaoise Prison to Mr Cannon, informing him that the consignment of drugs had arrived at 9 Hughes Road South. That message was sent from the same mobile phone number, 0858102934, the same phone that had sent the text message to the charging phone in the garage with the drugs.
11. There was another text message from the same number, 08581023894, which read: “Can you give me half a box of the bad thing for 13? I’m waiting for a few bob so I can sort you out.” Another message from the same SIM card was addressed to the addressee called “Lip” and the investigating Gardaí were satisfied to attribute this to Ms Tasha McEnroe, who was the then partner of the appellant. This message read: “Drop €30 up to Parrot man.” The evidence was that this was the nickname of Mr Anthony O’Connell in whose house the drugs were found. The reference to “€30” was understood by Gardaí to refer to €30,000. The prosecution case was that this was significant in light of the very large sum of money found in the house (in excess of €30,000).
12. There was then another text sent from the device in the control of the appellant, addressed to a person described as Dicko which read: “Change your number. They got greasy with five nasty. He fucked, it’s on text.” The prosecution case was that this was a reference to Mr Anthony O’Connell, having being caught in possession of five kilos of heroin. Furthermore, there was an additional text sent to “Lipps” which the Prosecution contended belonged to Ms McEnroe which read: ” Get rid of your phones quick.”
13. Notebooks were found in the appellant’s cell in Portlaoise Prison when the Gardaí searched it. There was also a subsequent search conducted of Ms Natasha McEnroe’s house wherein a notebook was found. The material contained in the notebook in the appellant’s cell was very similar to the material contained in the notebook found at Ms McEnroe’s house. Specifically, there was a list of names and numbers which appeared to be a tick list for drugs.
14. Expert evidence was also adduced showing a telephonic connection between the various phones, i.e., between the appellant’s phone, Ms McEnroe’s phone, and a number of other phones, including Mr Cannon’s phone.
15. The defence did not go into evidence.
The judgment of the Special Criminal Court
16. Following a trial lasting twelve hearing days the Special Criminal Court gave judgment on the 12th of February 2013. Following a review of the evidence which the court had heard, and a consideration of the submissions made on behalf of both the prosecution and the defence, respectively, the court made the following findings:
“Findings.
1. The Court is fully satisfied beyond reasonable doubt that Mr Rattigan, upon the entry of the gardaí to the cell, threw a mobile telephone out of that cell, which telephone had its own SIM card and another which was attached to its battery.
2. Mr Rattigan was found in possession of that device and SIM cards and other devices found in the cell. The foregoing findings do not of themselves amount to a finding that Mr Rattigan was guilty of an offence under section 36 of the Prison Act aforesaid.
3. Counts 4 and 5. The evidence that the Court heard in respect of these matters was from John Sugrue, Mr Edward Whelan, Fergus Downey, all of whom said they were governors of the prison. The Court also then heard from a number of senior prison officers, all of whom replied when asked by the prosecution that they did not give permission to the accused man to have a telephone in his cell on the date in question. Two persons who could give evidence who were assistant governors, Martin O’Neill and Chris McCormack, were not called. The legislation is drafted without any presumption that a person does not have permission and, that being the case, the onus is on the prosecution to prove the matters. The prosecution submitted that the Act does not require evidence from the various governors and others, that there is evidence from the governor and the governor is Mr Whelan, who gave evidence that he didn’t give permission. The Court is not satisfied beyond reasonable doubt in respect of the evidence adduced in respect of these two matters.
5. The Court is satisfied on all the evidence that what we will describe as the “tick list” transmitted by text message from Portlaoise Prison to the telephone found with the drugs emanated from Mr Rattigan and, taken in conjunction, in particular with the notes found in his cell, amounted to directions as to the distribution of the said drugs. No other reasonable inferences can be drawn from the evidence. Mr Rattigan was therefore in possession of the drugs in question.
6. On the question of the value of the drugs, which is relevant to count 1, the Court of course fully accepts the rationale of the Connolly decision aforesaid. However, on the facts of this particular case, having particular regard to the expert evidence of Detective Sergeant Roberts, the Court is satisfied that in these circumstances purity of the drugs had little or no bearing on their street value. As the evidence of the street value of these drugs exceeded by an enormous factor the sum of €13,000 without having regard to the purity of the drugs, the Court can have no doubt that a test of the purity of the drugs could not affect the street value to such a very large extent, and we conclude beyond reasonable doubt that the value thereof exceeded €13,000.
Verdict. Having regard to the foregoing, the Court finds, on counts 1, 2 and 3, the accused guilty; on counts 4 and 5, not guilty.”
The grounds of appeal
17. The appellant appeals against his conviction on the following eight grounds:
(1) The trial court erred in law and in fact in upholding the lawfulness of the search warrant for 9 Hughes Road South.
(2) The trial court erred in law and in fact in upholding the lawfulness of the warrant to search cell 42 in El landing in Portlaoise.
(3) The trial court erred in law and in fact in admitting any evidence with regard to the Nokia phone (Garda exhibit number JMG1) and printouts and analysis of same.
(4) The trial court erred in law and in fact in accepting that Sergeant Brian Roberts was entitled and/or that he had sufficient expertise and knowledge to give evidence in respect of the valuation of the drugs seized.
(5) The trial court erred in law and in fact in accepting that Sergeant Brian Roberts was entitled, and/or that he had sufficient expertise and knowledge, to give evidence in respect of the understanding of what various language, words, symbols or items meant in the context of the prosecution herein.
(6) The trial court erred in law and in fact in upholding the lawfulness of the search warrant for 290 Cooley Road.
(7) The trial court erred in law and in fact in convicting the appellant of Count 1 on the indictment (a charge of possession of drugs contrary to section 15 A of the Misuse of Drugs Act, as amended) in circumstances where there was no evidence of the purity of the drugs seized at 9 Hughes Road South.
(8) The trial court erred in law and in fact in convicting the appellant of Counts 1, 2 and 3 on the indictment (charges of possession of drugs contrary to the Misuse of Drugs Act, as amended) in circumstances where there was insufficient evidence that he was in possession of the drugs seized at 9 Hughes Road South.
Ground of Appeal No (1)
18. The complaint here is that the trial court erred in law and in fact in upholding the lawfulness of the search warrant for 9 Hughes Road South. Numerous complaints are made both with respect to the procedure followed in obtaining the warrant and with respect to the form of the warrant. The Court has received eighteen pages of written submissions from the appellant with respect to this ground, which were further amplified in oral submissions. The essence of them is captured in the following paragraph:
“In the first place, the warrant in this case lacked any hallmark of the independent exercise of a discretion which would have to be exercised judiciously in terms of balancing of rights. The Peace Commissioner depended entirely on the petitioning Garda for the provision of the documentation in the case, for all the required information (which he did not test or query in any way) and for his recollection of the issuing of the search warrant in order to make his statement of proposed evidence. The evidence was of use of pro forma documents, carelessly prepared and completed, including a misleading heading indicating that the warrant had been issued by a court. The Peace Commissioner rather than being asked or expected to play a quasi-judicial role, was simply put in a position where he was presented with documentation to effectively sign and rubberstamp. Finally, there was no exercise of independent judgment as to whether or not a search warrant was necessary or whether there was any basis for the Garda belief that a warrant was required to search Mr O’Connell’s home.”
19. The respondent has filed replying submissions; in which she seeks to refute each of the appellant’s said complaints.
The form of the warrant
20. It is convenient to deal in the first instance with the complaints as to the form of the warrant. The type of warrant involved was a warrant under s.26 of the Misuse of Drugs Act 1977, which provides:
“26.(1) If a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of a member of the Garda Síochána that there is reasonable ground for suspecting that—
(a) a person is in possession in contravention of this Act on any premises of a controlled drug, a forged prescription or a duly issued prescription which has been wrongfully altered and that such drug or prescription is on a particular premises, or
(b) a document directly or indirectly relating to, or connected with, a transaction or dealing which was, or an intended transaction or dealing which would if carried out be, an offence under this Act, or in the case of a transaction or dealing carried out or intended to be carried out in a place outside the State, an offence against a provision of a corresponding law within the meaning of section 20 of this Act and in force in that place, is in the possession of a person on any premises,
such Justice or Commissioner may issue a search warrant mentioned in subsection (2) of this section.
(2) A search warrant issued under this section shall be expressed and operate to authorise a named member of the Garda Síochána, accompanied by such other members of the Garda Síochána as may be necessary, at any time or times within one month of the date of issue of the warrant, to enter if need be by force the premises named in the warrant, to search the premises and any persons found therein, to examine any substance or article found therein, to inspect any book, record or other document found therein and, if there is reasonable ground for suspecting that an offence is being or has been committed under this Act in relation to a substance or article found on the premises or that a document so found is a document mentioned in subsection (1) (b) of this section or is a record or other document which the member has cause to believe to be a document which may be required as evidence in proceedings for an offence under this Act, to seize and detain the substance, article or document, as the case may be.”
21. The warrant in question in this case was issued by a Peace Commissioner, a Mr Fergus Nestor, not by a District Court judge. However, a standard court form was used which was headed “The District Court – Dublin Metropolitan District” and which had a harp on it, which the appellant contends was apt to mislead a person reading the warrant so as to suggest to them that it had been issued by a District Court judge rather than by a Peace Commissioner. However, at the bottom of the form the status of the issuing authority was correctly stated, in that it was signed by Mr Nestor and his signature was clearly identified to be that of a “Peace Commissioner for Dublin and Surrounding Counties”.
22. There were no other irregularities in the form of the warrant. The appellant’s written submissions complain, erroneously, that the warrant issued in this case contains permission to search for items unrelated to the case, such as for “a forged prescription”, or for “a duly issued prescription which has been wrongfully altered”, or for “opium poppy, a plant of the genus cannabis, or a plant of the genus Erythroxylon” suspected of being cultivated on the premises; which items were not deleted from the pro-forma warrant when it was being completed. However, an examination of the relevant documentation indicates that that complaint is not in fact made out. While it is true that the superfluous items referred to were not deleted from the “Information for Warrant to Search” prepared by Garda Shane Curtis to ground the application to Mr Nestor for a warrant, in circumstances where Garda Curtis had used a standard form of information that was more properly intended for use in applications to a District Judge for such a warrant, but had failed to follow an instruction on the bottom of the form to “delete as appropriate” from a list of recitals thereon. However, the superfluous items were in fact deleted on the standard form utilised for the warrant itself.
23. The appellant relies on a number of authorities in support of his contention that, by reason of having an incorrect title headed “The District Court – Dublin Metropolitan District” and which had a harp on it, the form of the warrant “was entirely misleading to anyone who saw it” . These include Dunne v DPP (unreported, High Court, Carney J, 14 Oct 1994, [1998] WJSC-HC 1468); DPP v Edgeworth [2001] 2 IR 131; DPP v McCarthy [2010] IECCA 89 and DPP v Collins [2014] IECCA 30. The Dunne case was put forward as one in which the late High Court judge, Carney J, criticised the use of a pre-printed form of search warrant and held that if the prosecuting authority could rely on words on such a form that had been crossed out by claiming inadvertence “such an approach would facilitate the warrant becoming an empty formula” . The more recent cases of Edgeworth, McCarthy and Collins involved the distinction between fundamental errors in a warrant which have the potential to mislead and mere errors which are not likely to mislead, concerning which O’Donnell J was moved to remark in Collins that “[i]t is apparent … that these distinctions are very, and perhaps excessively, refined.” The appellant maintains that the errors as to form in the case of this warrant were fundamental and apt to mislead.
24. In reply to the appellant’s submissions, the respondent contends that DPP v Edgeworth is distinguishable from DPP v McCarthy and DPP v Collins . In all three cases a warrant issued by a Peace Commissioner was entitled “The District Court” . However, in both Edgeworth and McCarthy , the person who issued the warrant was a Peace Commissioner. In Edgeworth the person issuing the warrant was clearly identified as being a Peace Commissioner. The Peace Commissioner had signed the warrant and in doing so had crossed out the words on the printed form “Judge of the District Court” and had written in the words “Peace Commissioner” instead. In the present case the words “Judge of the District Court” did not appear at all, and therefore did not require to be crossed out, but the words “Peace Commissioner for Dublin and Surrounding Counties” were typed in immediately below the signature line on which Mr Nestor subsequently appended his signature. In contrast to the present case, and that of Edgeworth, in the McCarthy case the words “Judge of the District Court” , which were pre-printed below the place for the issuing person’s signature on the particular standard form used in that instance, were neither struck out nor removed, thereby, it was claimed, creating uncertainty or ambiguity as to the status of the person issuing the warrant. In the case of Collins , there was a different irregularity in the warrant which was a judicial s.26 warrant. It was entitled “The District Court – Dublin Metropolitan District” , and was correctly shown as having been issued by a District Judge. However, the District Judge who signed the warrant was not assigned to the Dublin Metropolitan District.
25. The warrant in the Edgeworth case was upheld as valid notwithstanding the erroneous title. However, the warrants in the McCarthy and Collins cases were condemned. The reasons for the different approaches are explained succinctly by O’Donnell J, giving judgment for the Court of Criminal Appeal in the Collins case:
“15. At first sight it is somewhat difficult to reconcile this decision of the Supreme Court in Edgeworth, with that of the Court of Criminal Appeal in McCarthy at least on a broad reading of the decision in Edgeworth. The reasoning of the Court of Criminal Appeal in McCarthy is however contained in the final substantive paragraph of the judgment:
‘On the law, this Court is satisfied that the learned Circuit Court judge was correct when he found that the error on the face of the search warrant document is a “fundamental error”, and it is so because, in contrast with the position in The People (DPP) v. Edgeworth, supra., the status of the party issuing the warrant, and therefore the jurisdiction to issue it, is claimed to be a judge of the District Court, and therefore discloses no proper jurisdiction in law, and is wholly misleading, particularly, when combined with the inclusion of the erroneous title “An Chuirt Duiche” and “The District Court” in the title of the search warrant.’
In McCarthy it was pointed out that in Edgeworth (at page 136) Hardiman J. had observed that in that case the status of the person actually issuing the warrant appeared clearly on its face. In that way Edgeworth was distinguishable. The key feature of McCarthy was that the Court read the warrant as asserting that the peace commissioner was a judge which was not the case.
16. It is necessary to observe that the fine distinctions made by the case law (of which Edgeworth and McCarthy are only a sample) and the careful debate over what in another context would seem to be obvious but forgivable errors, is given particular focus by the rigidity of the rule laid down in Kenny, which has been understood (and was understood in the case) as requiring that once a warrant is invalid, any search would be treated as a deliberate and conscious breach of the constitutional right of the citizen, and accordingly that all evidence obtained thereby must be excluded, almost automatically, subject to exceptions which certainly do not arise in this case.
17. The reasoning in Edgeworth might lead the conclusion that since the statutory requirements of s.26 of the Misuse of Drugs Act 1977, as amended, have been complied with, the reference to “Dublin Metropolitan District” in this case and “within the said District” are merely erroneous and of less significance than the error in Edgeworth, since there was no error as to the status of the person issuing the warrant. On the other hand, the reasoning in McCarthy could be understood as holding that where a warrant asserts, states, or suggests a jurisdiction that is incorrect (even if the person authorising the warrant had a jurisdiction in fact) then it is invalid. If that reason is applied here then the fact that the warrant asserts an incorrect jurisdiction by reference to the Dublin Metropolitan District is fatal to its validity.
18. In this case, the Court considers it cannot distinguish this case satisfactorily from the decision in McCarthy. In one sense the problem here was more substantial. The District Court is a court of local and limited jurisdiction. The geographical area of the Court’s jurisdiction is essential to the jurisdiction of the judge. The decision in McCarthy treats Edgeworth as being a case in which there was no confusion in fact because the status of the person issuing the warrant was clear and the heading could be ignored. Here the heading “Dublin Metropolitan District” is relevant to the content of the warrant since it relates to the jurisdictional district within which the premises are alleged to be found. The warrant states a jurisdiction which the District judge did not have, and which would not justify the issuance of the warrant for the location in question. The learned Circuit Court Judge in this case treated this error as one which was fundamental and in the context of a local and limited jurisdiction it was perhaps appropriate to so describe it. It is not a ‘mere error’ which ‘does not mislead’, as in the case of Mallon. Accordingly, on the basis of authority, this Court must conclude that the learned judge was correct to hold the warrant invalid and the evidence inadmissible.”
26. Apart from the form of the warrant, other complaints made on behalf of the appellant concerned the fact that the Gardaí made no attempt to contact a judge, contending that the urgency of the situation did not render it practical to do so; the fact that the Peace Commissioner, Mr Nestor, had no training in the issuing of warrants; that he had been provided with no guidance in that regard, and had nobody from whom he could seek independent advice with regard to the exercise of his functions; that the Peace Commissioner had asked no questions of the applicant Garda beyond asking him, after the Garda had taken the oath, whether the contents of the written information he had prepared were correct, which the Garda confirmed was the case; and that the Peace Commissioner had kept no records.
27. Further, in the appellant’s written submissions, it is contended that s.88 of the Courts of Justice Act 1924, which entitles Peace Commissioners to sign warrants, did not survive the coming into force of the Constitution of Ireland. However, no separate proceedings, seeking a declaration in that regard, have been initiated, and this point was therefore not pressed in oral argument.
28. In this case the Special Criminal Court ruled:
“This ruling arises out of Mr Grehan, on behalf of the accused, challenge to the warrant and the search in this case. And, first of all, we should say in relation to one thing raised by him, and both the information and the warrant bear the heading “the District Court”, in fact it looks like a District Court document, and that is most unfortunate. It should not happen. It’s entirely inappropriate. But there is no evidence that it has misled anybody, and the signatures on the documents clearly don’t purport to be that of a District judge or a District Court clerk and, in those circumstances, while it’s unfortunate it is certainly not fatal in this case. There could be cases with different circumstances where it could be fatal, but people should be just more careful of such things.
Another matter in relation to technicalities, if you like, is in the information, apart from the diamorphine other matters are mentioned, such as an alleged forged prescription. These were crossed out on the warrant and they hadn’t been crossed out on the information. That is most unfortunate because it makes that part of the information, on its face, incorrect. However, we’re satisfied that, on reading the entire document, it is very clear that what’s concerned here is information in relation to heroin or diamorphine on the premises in question.
So, in the first place Mr Grehan says that a warrant issued by a peace commissioner should be approached with grave circumspection. Whether we agree with the wording or not is one matter, but certainly such a warrant should be more closely looked at by this Court as it is not a warrant issued on the direction of a judge, and we do so. Also the point was made that the statute in question is a pre-constitutional statute, we accept that, and it may or may not be a matter for argument elsewhere, but this Court has no constitutional jurisdiction whatsoever.
The next criticism relates to the evidence. We are told that there is a difference between the two statements signed by peace commissioner in this case. Those statements have not been put before us so we are relying on the evidence that was given in this court. We have heard the evidence of Mr Nestor. We accept that he is an honest and straightforward witness. He issued the warrant on the strength of the information that was sworn before him. That information was very extensive, in that it went right — it went back to a briefing by the Detective Inspector Sutton, from whom we have already heard in this case, and it dealt with the investigation targeting an organised gang in Dublin 12 and says that ‘As a result of enquiries I’m satisfied …’ I’m sorry, some of the writing is missing in my copy, but in short it does say that there is a suspicion of drugs being present on the premises. He was cross examined very competently and very extensively on this and in the end of the day his evidence is to the effect that he satisfied himself. He wasn’t shifted in that evidence and, in view of all the circumstances, we accept that he did so satisfy himself and that the warrant was validly issued.”
29. We find no error in the approach of the Special Criminal Court. Their ruling with respect to the deficiencies in the form of the warrant was one that was open to them on the authorities, and in particular having regard to the Edgeworth decision. We agree that the situation in Edgeworth was distinguishable from that in McCarthy and in Collins , respectively.
30. With respect to the other complaints made, in the context of this ground of appeal, we are satisfied that the Court’s decision was correct and should be upheld. The Special Criminal Court heard the evidence of Mr Nestor, the Peace Commissioner, and observed him being rigorously and forensically cross-examined, as well as hearing the evidence of the Gardaí. The Special Criminal Court was best placed to form a view concerning the credibility and reliability of Mr Nestor’s testimony. It is of significance in our view that the written information prepared by Garda Curtis to ground the application for the warrant, and which he subsequently confirmed on oath to be correct, contained quite a significant amount of detail. The court below was satisfied that the Peace Commissioner was provided with adequate information to justify the issuance of the warrant. We find no error in the trial court’s approach.
Ground of Appeal No (2)
31. This ground concerns the lawfulness of the warrant to search cell 42 on E l. landing in Portlaoise Prison.
32. The relevant evidence was that, on the 22nd of May 2008, Detective Sergeant Emmet Casserly, who was involved in the ongoing investigation into a seizure of heroin at 9 Hughes Road South on the 21st of May 2008, attended a special sitting of Portlaoise District Court at 8pm. Detective Sergeant Casserly gave evidence of swearing several “informations” , seeking warrants under s.10 of the Criminal Justice (Miscellaneous Provisions) Act 2009, that would authorise Gardaí to search four cells on landing E 1. of Portlaoise Prison, including cell No. 42 (the appellant’s cell) on that landing. Detective Sergeant Casserly identified both the search warrant and the information for cell 42 to the trial court. He agreed that it was his idea to obtain warrants to allow Gardaí to search the prison cells.
33. The Detective Sergeant testified that he had prepared all of the relevant documentation before he went to court, based on prepared forms which were saved on the computer in his office. The relevant documentation included typographical errors and errors in the heading and incorrect references to the rules of court. The Detective Sergeant gave evidence that he signed the documents comprising the “informations” when he arrived at the court, and he handed them to the court clerk before he went in to see the Judge. When he handed in the “informations” , he told the clerk that he would be looking for a certified copy. Three different versions of certified documents purporting to be true copies of the information were served on the defence, one of which was not even signed by a Judge.
34. Detective Sergeant Casserly gave evidence that he swore the information before the District Court sat, and presented the sworn information to the court clerk prior to the Court sitting. He said that the District Judge read through it and asked Detective Sergeant Casserly if the application related to other applications that he was making at that time. Having been told that it was, the District Judge read through the information again and then he granted the warrant, having ascertained that the signature on it was Detective Sergeant Casserly’s. Under cross-examination, Detective Sergeant Casserly said that he “just took the normal oath” and that all four applications were dealt with together, the information for each being the same. No questions were asked about the actual information itself, nor were any questions asked about the grounds for the search warrant or the basis for the Sergeant’s belief that such warrants were necessary.
35. Having obtained those search warrants, the Gardaí left the court and went to Portlaoise Prison, where they identified themselves to the prison guards working there. They went through normal security when entering the prison and were escorted by prison officers to the cells in respect of which they had warrants to search.
36. The appellant complains that there was ambiguity relating to the status of the sworn information, resulting from the existence of multiple copies which differed from each other. Detective Sergeant Casserly was extensively and forensically cross-examined about how this might have arisen. While a definite explanation could not be provided by Detective Sergeant Casserly, a Ms Catherine Magner, Chief Clerk of the District Court, was also called by the prosecution. Ms Magner testified that original sworn “informations” were retained by the District Court office and that they were kept in a particular filing cabinet in a certain office, and that she was in a position to produce the original of the document in controversy. The Special Criminal Court had produced to it both the original sworn information that had been retained in the District Court office, and the warrant based upon it, and the certified copies of same as verified by Ms Magner. The original produced contained the signature of the District Judge, while the copies were acknowledged to be ambiguous.
37. The trial court took the view that with the adducing of the original document that there was at the end of the day no ambiguity. We are satisfied that there was evidence to support the Special Criminal Court’s ruling in that regard, and that it was entitled to so rule.
38. The next basis for complaint was that the information provided to ground the issuing of the search warrant was inadequate, as it did not set out such information as the Detective Sergeant had and could lawfully have provided for the District Court Judge. The sworn information had stated, inter alia, that:
“I suspect that evidence in relation to this s.15 Misuse of Drugs Act 177/84 offence is to be found in the prison cell of one Brian Rattigan, which is cell 42, Landing E 1., Portlaoise Prison. The evidence is specifically mobile phones, mobile phone call receipts, mobile phone chargers and ancillary items. I suspect this because of confidential information that I am in possession of. This information is from a previously reliable source. I have conducted a number of enquiries into the veracity of this information and am satisfied as to its accuracy and I hereby apply for a warrant …”
39. Counsel for the appellant complains that there were no questions asked to test the assertions made. He has submitted that a crucial aspect of the matter was that there was believed to be a connection between a phone found at the scene at 9 Hughes Road and a phone which Gardaí believed was connected to the appellant who had been in prison for some years at that stage. It was submitted that cogent and relevant evidence concerning that was not put before the District Judge. For example, it was suggested, the District Judge was not told that the phone which was being searched for was likely to be in the appellant’s cell. The provision of that detail would not involve disclosing confidential information and it was relevant to his determination. It was submitted that the issue of the search warrant was not reasonable in those circumstances.
40. In response, counsel for the respondent has submitted that it was not necessary for the District Judge to be provided with the detail suggested. The respondent maintains that there was more than adequate information for the Court to be satisfied on reasonable grounds that the issuance of a search warrant was appropriate.
41. We agree with the submission made by counsel for the respondent. Under the relevant statutory provision, a District Judge must be satisfied that “there are reasonable grounds for suspecting that evidence of, or relating to the commission of” an indictable offence was to be found at the suggested search location. The warrant, which in this instance was a judicial warrant, expressly states that the District Judge was so satisfied. The court below expressed itself satisfied that it would be inappropriate to seek to go behind the District Judge’s order, and we agree that the evidence did not provide any basis for doing so. The District Judge was not obliged to conduct a trial of the assertions made in the information. He was of course entitled to seek clarifications, or supplementary information if he felt he needed it, but he was not obliged to do so. If on the information contained in the sworn information he could be satisfied, and was in fact satisfied, that there were reasonable grounds for suspecting that evidence of, or relating to the commission of an indictable offence was to be found at the suggested search location, he was entitled to issue the warrant. We see no basis on which to criticise the ruling of the Special Criminal Court upholding the warrant.
Ground of Appeal No 3.
42. This ground is concerned with a complaint that the trial court erred in admitting any evidence with regard to the Nokia telephone (Garda exhibit number JMG1) and printouts and analysis of same.
43. There was a considerable amount of evidence relevant to this ground. The Nokia telephone in question was seized from the person of Anthony Cannon at 9 Hughes Road South. Evidence was given at trial about Garda examinations of that telephone by Sergeant Amanda Timmons and by video-link from New Zealand by a Mr Colm Gannon who had been a Garda at the relevant time. Sergeant Timmons gave evidence that when she received the telephone, it was switched on. She said that she did not do any XRY analysis of that exhibit and under cross-examination, she agreed that she did not undertake any process involving the cloning of the SIM card. She said that she had advised Sergeant Flanagan that further examination would be required and that this would have to be undertaken in Garda HQ.
44. Sergeant Tony Flanagan gave evidence that, having spoken to Sergeant Timmons, he contacted Garda headquarters and they advised him that they would revert to him. In the interim, he “made further inquiries with other people that were qualified to carry out this type of examination” as he had “met with a brick wall in relation to getting this further XRY’d” He said it was “left up to me, the phone was in my possession, the information was on the phone, it was required, so… I got every message, everything that was recorded on the phone, photographed.” Sergeant Flanagan gave evidence that while that was being done, he powered the phone off and inserted a blank SIM into it. Sergeant Flanagan admitted that he had no training but he said that “I had taken an interest in phones and I believe that during that interest that somebody had given me one of these and said to me, ‘If you’re ever in a situation where you have a crime you need to get one of these in to stop it linking onto the network.'” Sergeant Flanagan was unable to say who gave him the card he inserted into the phone and the card itself was unavailable for examination, as Sergeant Flanagan said that he took it out of the phone afterwards with the intention of using it again and he no longer had it in his possession. He could not say where it was.
45. Mr Gannon gave evidence of receiving exhibit JMG1 on the 18th of April 2010. He said that he carried out a visual examination on the device and noted that the Meteor SIM card was placed under the battery and that in the ICC slot of the device there was a cloned SIM card. Mr Gannon gave evidence that a cloned SIM card is a way of keeping the device away from network communications and that they are used as part of the forensic retrieval of information from the device, doing a logical acquisition of the device to ensure that it is kept at best seizure point. He identified the card in the slot as being the type of card associated with Micro Systemations or the XRY software that was currently being used by An Garda Síochána.
46. Under cross-examination, Mr Gannon agreed that the presence of that cloned SIM card indicated that someone else had “been at” or had examined the telephone before he examined it, and that the cloned card is not part of normal telecommunications hardware. He had no direct knowledge of where the telephone had been or what had been done with it in the almost two-year interval until he was asked to examine it on the 18th of April 2010.
47. Mr Gannon further explained that the reason for downloading SIM cards is to obtain the best evidence at point of seizure because the phone is not connecting to the telecommunication network and that prevents the phone from receiving text messages or from receiving calls. The cloning of the SIM card permits access to be gained to a device as well as keeping a device off the network.
48. The thrust of the complaint now being made is that there was evidence that the exhibit had been interfered or tampered with prior to Mr Gorman’s examination. It is said that the prosecution were not able to prove the integrity of the exhibit as a result of that interference or tampering, and further were unable to prove the integrity of the data subsequently retrieved. Moreover, it could not be ascertained what exactly had occurred during the interference or tampering that had undoubtedly taken place. Consequently, it was contended, the evidence which the prosecution sought to adduce was not reliable or safe. The court of trial ought not to have admitted the phone into evidence nor any of the unreliable evidence which was obtained once the integrity of the exhibit had been compromised whilst in the possession of Gardaí.
49. In response, counsel for the respondent emphasises that the evidence was that the only persons who had dealt with this phone for examination purposes were Sergeant Flanagan and Mr Gorman, both of whom had given evidence. If there was doubt as to the integrity of the exhibit that was something which would potentially go to weight but not to admissibility. However, it was not accepted that there was a reason to doubt the integrity of the exhibit. The chain of possession was intact from the time of its seizure until its subsequent examinations. There was no reason to speculate that some unnamed party had interfered with the exhibit simply because of the cloned SIM card that had been found in the device. Sergeant Flanagan had described using such a card and explained why he had done so. Moreover, this cloned SIM card was recognised by Mr Colm Gorman as one that would be widely used by forensic examiners of mobile phones.
50. Counsel for the respondent points out that no complaint is made concerning the reliability of the photographs taken by Garda Pidgeon on the 8th June 2008, both of the phone, and of information displayed on its screen. Garda Flanagan gave evidence concerning what he had photographed without objection.
51. The respondent maintains that the complaints made lack any merit and ought to be rejected.
52. We are satisfied that the Special Criminal Court was correct to admit the evidence in question. In general, complaints such as those made by the appellant go to weight rather than to admissibility. That having been said, a court of trial always retains a discretion to exclude evidence the prejudicial effect of which so outweighs its probative value as to render it unfair that the prosecution should be entitled to rely upon it. However, the threshold for such an intervention is a high one, and we are satisfied that the evidence of unreliability, if any, in this case did not remotely approach that threshold. The court of trial was right to admit the evidence. However, notwithstanding its admission, the defence were perfectly at liberty to suggest to the court at the appropriate time that, in the exercise of its function as the tribunal of fact, it ought not to rely on that evidence, alternatively that it should attach little weight to it. However, it was ultimately a matter for the court as to what weight, if any, it felt it could attach to that evidence. We are therefore not disposed to uphold this ground of appeal.
Grounds of Appeal No’s 4 & 5.
53. In these grounds it is suggested that the trial court erred in accepting that Sergeant Brian Roberts was entitled, and/or that he had sufficient expertise and knowledge, to give evidence in respect of the valuation of the drugs seized; and that it further did so in accepting that Sergeant Brian Roberts was entitled and/or that he had sufficient expertise and knowledge to give evidence in respect of the understanding of what various language, words, symbols or items meant in the context of the prosecution herein.
54. Section 15A (3) of the Misuse of Drugs Act 1977 provides:
“If the court is satisfied that a member of the Garda Síochána or an officer of customs and excise has knowledge of the unlawful sale or supply of controlled drugs, that member or officer, as the case may be, shall be entitled in any proceedings for an offence under this section to be heard and to give evidence as to—
(a) the market value of the controlled drug concerned, or
(b) the aggregate of the market values of the controlled drugs concerned.”
55. The Prosecution called Sergeant Brian Roberts to give evidence which purported to be expert evidence relating to the value of the drugs seized and the slang language used in the various text messages which the prosecution believed to be of importance in the case. The defence objected to the admissibility of that evidence, submitting that absent a specific statutory provision, such as that providing for the giving of evidence of belief of membership of the IRA, or belief as to the existence of a gangland organisation, the belief of a Garda, who has not otherwise been proffered and credentialed as an expert in a field of scientific endeavour or in an acknowledged area of knowledge and learning, represents inadmissible opinion evidence. It was submitted that Sergeant Roberts did not have the expertise envisaged by the relevant legislation, i.e., the Misuse of Drugs Act 1977, as amended, relating to either the value of the drugs, or for that matter concerning the slang language used by drug dealers. However, despite these objections, the court of trial accepted that Sergeant Roberts had the expertise required to give the necessary evidence, subject to satisfactory proof as to the purity of the drugs, and the appellant contends that it was in error in so ruling.
56. Sergeant Roberts gave evidence that he had been a Garda for 18 years and had spent 15 years attached to the Garda National Drug Unit. He gave evidence that he is on Europol’s expert group in an advisory capacity with regard to new synthetic drugs and on sub groups of the National Advisory Committee to the government on drugs. He said he was a supervisor on an operational test purchase unit, which involves the controlled purchases of controlled drugs throughout the country on a daily basis in an undercover capacity, with the objective of determining and monitoring the market prices of illicit drugs at any particular time. Most of the supervised transactions were at street level involving lower level deals. He estimated that in the preceding five years, there had been 2,500 controlled purchases of diamorphine alone.
57. Under cross-examination, Sergeant Roberts said that he had undertaken a number of courses in the UK and in Europol with regard to undercover operations, test purchase operations, decoy operations and expert dismantling of cannabis cultivation sites and new synthetic drugs. He said he had no formal qualifications in relation to the valuation of drugs and that he was relying purely on his experience in relation to same. Moreover, Sergeant Roberts was not in a position to give evidence as to the purity of the drugs seized. With regard to the valuation of the drugs seized, Sergeant Roberts gave evidence that he had had no direct dealing with controlled drug purchases in the preceding five years and that he was relying entirely on information conveyed to him by others involved in such purchases.
58. Sergeant Roberts further gave evidence that his knowledge of the argot or slang terminology used in the drugs trade was not based on data personally gathered. He gave evidence that he had no formal qualification in the field of argot or slang terminology. He said his knowledge was acquired from a UK produced reference work, which comprised a 400 page glossary of drug trade terminology, that is used by police forces across the globe. He acknowledged that some such terminology in use here may be different to that used in the UK. However, in May 2008, no document existed which recorded the terminology being used in Ireland at that time. Sergeant Roberts conceded he had no direct knowledge himself of that terminology.
59. The defence contended that Sergeant Roberts’s expertise had not been established on the evidence adduced. However, despite the objections raised the court of trial accepted that Sergeant Roberts had the expertise required to give the necessary evidence, subject to satisfactory proof as to the purity of the drugs, and the appellant contends that it was in error in so ruling.
60. In response to the appellant’s submission, counsel for the respondent has contended before this Court that the terms of s.15A(3) alone were sufficient to entitle Sergeant Roberts to give the evidence as to the value of the drugs that was in controversy. Moreover, and in any event, he submitted that the witness’s evidence established that he had expertise in valuation of drugs. The evidence that Sergeant Roberts gave as to value, and as to the meaning of the slang terms, was not hearsay. Rather, it was submitted, he gave a personal opinion based on his learning and acquired knowledge, and that was admissible evidence, counsel for the respondent says.
61. We agree with the submission made by counsel for the respondent. The fact that the source of some, or even all, of Sergeant Robert’s knowledge was hearsay was neither here nor there in terms of whether or not he had expertise. Most expertise is in large measure based on knowledge acquired concerning what others, perhaps long dead, have either written, or have discovered in research, or in experimentation, or have recorded through observation. Some experts may, of course, add something themselves to the field of knowledge concerned, but being an expert does not depend on making a personal contribution. It is based on having acquired and possessing expert knowledge and understanding, whatever the source of one’s learning might have been. Knowledge does not have to have been obtained first hand. That is not to suggest that the fact that expertise is based solely or largely on second hand knowledge may not be relevant to weight. It might or might not be, depending on the circumstances of the case, but that is an entirely different issue. The complaint made is based on alleged inadmissibility.
62. On the question of evidence as to value, we are satisfied in the first instance that Sergeant Roberts was entitled to give evidence as to value based on s.15 A (3) of the Misuse of Drugs Act 1997. Quite apart from that, however, we are satisfied that the evidence given by Sergeant Robert’s concerning his experience and learning in what we consider to be a recognised area of police science, namely the profiling of the actors, activities and methods of those engaged in the criminal drugs trade subculture, was also sufficient to allow the court of trial to be satisfied that he had the necessary expertise to testify as an expert, both with respect to street value and with respect to argot or slang in usage in the drugs trade, and that the evidence was therefore properly admitted. We are not therefore disposed to uphold this ground of appeal.
Ground of Appeal No 6
63. It is complained here that the trial court erred in upholding the lawfulness of the search warrant for 290 Cooley Road. This was the home of the appellant’s former partner.
64. It is complained that the judicial signature on the copy of the search warrant obtained from the District Court under s. 26 of the Misuse of Drugs Act 1977 is illegible. There is a squiggle on the line above the words “Judge of the District Court” which is incapable of discernment. The complaint in that regard, and in so far as it goes, is correct. The Court has viewed the signature and it is not possible to make out a name. However, the warrant is clearly in the correct form, and it is clear in its terms. It is clearly entitled “The District Court for the District Court area of the Dublin Metropolitan District” . Moreover, while the actual signature is not legible, it is plain to any addressee that it was purportedly granted by a Judge of the District Court, and as to the date on which it was granted and the basis on which it was granted. There is no suggestion that it was not signed by a District Judge, and the Garda who applied for the warrant, namely Detective Garda Ronan Doolan, gave evidence before the court of trial that the warrant was issued by a District Judge, whose name he could not recall, who had been sitting in District Court No 46 on the 28th of October 2008. In our view this is a complaint without substance. Nobody was misled or prejudiced in any way by the illegibility of the signature. It is not the personal identity of the judge concerned that is important. What it was important for the addressee, or an interested party to know, was that the warrant in this instance was issued by a judicial office holder. Such warrants prove themselves, unlike those issued by a Peace Commissioner whose viva voce evidence is required once there is a challenge to the warrant. The information that the signatory was a Judge of the District Court was clear to see on the face of the warrant.
65. A somewhat fanciful suggestion has been put forward that the appellant was prejudiced because he was to be tried before a three judge judicial panel of the Special Criminal Court, a member of which was going to be a District Court judge. It is suggested that in circumstances where the signature on the warrant was illegible, neither the appellant nor his lawyers had any way of knowing if the District Judge who would be on the panel to try the appellant might not have been the judge who signed the warrant, and that it was vital to know this in order to consider whether a recusal application should be made. We dismiss this complaint in limine . As it was a judicial warrant, a simple enquiry at the relevant District Court office would have solved the mystery for anyone concerned to verify ownership of the illegible signature.
66. We are not disposed to uphold ground of appeal no 6.
Ground of Appeal No 7
67. This relates to a complaint that the trial court erred in convicting the appellant of Count 1 on the indictment (a charge of possession of drugs contrary to section 15 A of the Misuse of Drugs Act, as amended) in circumstances where there was no evidence of the purity of the drugs seized at 9 Hughes Road South.
68. In that regard Superintendent Sutton gave evidence that the market value of a kilogram of diamorphine, on the 21st of May 2008, would have been worth €200,000. He stated that 4,973.6 grams, which was the quantity found at 9 Hughes Road, would therefore have a street value of €994,720. Superintendent Sutton relied upon the weight as certified in the Certificate of Rodney Lakes, Forensic Scientist, issued for the purposes of s.10 of the Misuse of Drugs Act 1984. He did not personally weigh, or even see, the drugs.
69. Mr Lakes gave evidence at the trial. He stated that the total weight of powder in this case was 4973.6 grams, that samples were analysed and found contain diamorphine, which is a controlled drug, under the Misuse of Drugs Act, and that the purity, or the diamorphine content, of the powder was not determined.
70. Mr Lakes explained that the Forensic Science Laboratory uses a sampling policy based on the hyper geometric probability distribution which is based on the European Network of Forensic Science Institutes, or ENFSI, and the United Nations Office of Drugs and Crime, UNODC standard. He explained that sampling procedure as follows:
“The scientist satisfied themselves that they are dealing with what we consider to be one population, so one set of tablets or one set of packs of powders, that there isn’t two different populations or that we can separate one set from another. So, once we’re satisfied that we’re dealing with just one population, we can apply the statistical model to this. So, we take the total number of packs – it was 18 in this case in item two – we then look at our sampling policy which tells us how many packs to analyse. In this case I analysed nine of the packs. Therefore, where each of those packs is found to contain diamorphine, we are obviously 100 % positive that each of those nine packs contain diamorphine. But equally, we’re allowed then to state that we are 99 % confident that a minimum of 75 % of these packs in total, if analysed, could contain diamorphine. So, the fact that we’ve analysed nine of them and they’re all positive for diamorphine allows us to have a certain confidence that the rest of the packs also contain diamorphine.”
71. Mr Lakes further stated in his evidence that: –
“Whilst the only way you could be 100 % positive that something contains diamorphine would be to analyse it, but because the other two contain diamorphine, we can have a strong amount of confidence that the third pack would also contain diamorphine, even though it wasn’t analysed.”
72. Sergeant Roberts also gave evidence. He described his experience which extended to fifteen years with the Garda National Drugs Unit. He was in a position to describe his role within that Unit and to demonstrate his familiarity with the controlled purchasing of diamorphine in this jurisdiction. He stated “It’s the main drug that we would be involved in purchasing” , and further stated:- “…I could give a quite accurate estimate in the last five years of 2,500 controlled purchases of diamorphine alone.”
73. Sergeant Roberts stated that in his experience, the market value of diamorphine seized on the 21st of May 2008 was €200 per gram. He said that in this case, he had seen Mr Lake’s certificate “which found that a quantity of 4,973.6 grams of brown powder determined to contain diamorphine” and that the value of the powder, based on simple multiplication, amounted to €994,720. Later in his evidence, Sergeant Roberts said that at a wholesale level of the market, the value of a kilogram of diamorphine would be in the region of €26,000 to €28,000. He agreed that a street deal of heroin would contain 0.1 gram of heroin, and that that quantity mixed with a kilo of brown sugar would still test positive for diamorphine. However, his evidence was that heroin purity in Ireland ranged from 30% to 50% but said that the street value did not depend on the quantity of heroin in the deal. The witness elaborated on this in response to questions asked in cross-examination. He said “In Ireland with regard to purity or quantitative analysis on large amounts of drugs, it’s [ i.e., testing for purity] generally not done, not reported by the laboratory for the — a number of reasons. From our perspective, when it comes to market value at street level, i.e. when the person is buying the lowest or the most common amount of a drug, be it a gram or a 0.1of a gram, the purity is not particularly relevant at that end of the market because the buyer is blind on the street as to what purity the substance might be.” The witness accepted that it was not established whether the diamorphine found was already adulterated before being seized by Gardaí or whether it was pure.
74. When further questioned about purity, this witness confirmed that:- “…the weight and the volume is what achieves the cash price on the street.” He also observed, having initially commented on the range for purity being between 30% to 50% within this jurisdiction, that :- “….if the heroin was 10% or if it was 40%, the value from my point of view would be the same because what ends up in these 0.1gram bags on the street being sold isn’t determined by the quantity in them.”
75. Sergeant Roberts confirmed that diamorphine is bulked up using other substances to increase its volume. In this case, no forensic test was carried out to establish whether the substance recovered was pure or contained other substances, as is common in drugs cases. Sergeant Roberts conceded that his valuation of the drugs in this case made “no allowance whatsoever for purity” and he said that the forensic science laboratory personnel were the scientists to answer those questions. The diamorphine seized in this case was not analysed to establish the level of its purity. He conceded that without specifically testing the purity of the drugs, it was not possible to say for certain how much diamorphine was present.
76. The appellant contends that, in the absence of evidence as to the purity of the powder found in the search, the evidence adduced was simply insufficient to establish that the drugs had a value in excess of €30,000, which is an ingredient of the offence charged under s. 15A of the Act of 1977, as inserted and amended. Counsel for the appellant has referred us to the decision in The People (Director of Public Prosecutions) v Connolly [2011] 1 IR 755, in support of this contention. It was submitted that the evidence in this case, at its highest, established a probable value for the drugs recovered and that that is not sufficient in light of the decision of the Supreme Court in Connolly . The appellant contends that any evidence which places a valuation on the drugs recovered in this case, without an analysis of purity or some evidence of the composition of the illegal drugs recovered, fails to meet the standard of proof beyond reasonable doubt. No explanation was given for the failure to test the purity of the drugs even at a late stage in the proceedings.
77. In the Connolly case, the appellant was charged with two counts of possession of controlled drugs, namely Amphetamine in powder form, for sale or supply, including one count that the drugs had a market value of €13,000 or more contrary to s. 15A of the Misuse of Drugs Act 1977, as amended. The appellant had made certain admissions in relation to possession of drugs. An expert witness for the prosecution gave evidence that only half of the packages had been examined in accordance with statistical sampling methods. Nevertheless, on the basis of such sampling as had been done she was prepared to offer the opinion, as a matter of 99% certainty, that amphetamine was present in seven of the packages seized. The witness went on to say that she had not determined the extent of the amphetamine content and was unable to say “for definite” what the level of presence of amphetamine was. She added that she could “give a range in which amphetamine purities generally fall” . She said that they “generally fall between that is maybe 10% and 40% …” . During the trial the appellant sought a direction that the case should be withdrawn on the grounds that the prosecution had not provided sufficient evidence that the drugs had a market value of €13,000 or more. This application was refused and the appellant was convicted. The appellant appealed against his conviction to the Court of Criminal Appeal on the ground that there was no evidence on which a properly directed jury could be satisfied beyond reasonable doubt in relation to the market value of the drugs. The appeal was refused, but the Court of Appeal certified a question of law of exceptional importance in relation to the appeal permitting him to appeal to the Supreme Court.
78. The Supreme Court allowed the appeal, and set aside the conviction without directing a retrial. In doing so they held, 1, that proof of value of the drugs was an essential ingredient of the offence with which the appellant had been charged and distinguished the offence from the sale or supply of drugs which had not been quantified or valued. They ruled that that essential ingredient must be proven to the satisfaction of the jury beyond reasonable doubt.
79. The Supreme Court further held that it was the totality of evidence before the jury which was important and that evidence must be such that, having regard to the onus of proof beyond reasonable doubt, if accepted, the evidence would entitle a jury to reach a verdict of guilty. The admissions of the accused carried some weight, however, the proof of the market value of the drugs was an objective matter.
80. It was further held that it was not sufficient for the prosecution to prove a mere presence of a particular drug and then to rely upon an unexplained range of values which generally applied without giving evidence which addressed the extent to which cases might fall outside that range. The word “generally” was central to the evidence given by the prosecution witness, the normal usage of that word leaving open the very real possibility that there were cases which fell outside the range given.
81. The respondent rejects the appellant’s contentions on the issue of the failure to establish the purity of the drugs seized. Her counsel has submitted that the present case can be readily distinguished from the Connolly case. He contends that the Special Criminal Court accepted the rationale in Connolly but was satisfied that the present case could be distinguished on the basis that the evidence of Sergeant Roberts was to the effect that what determined the price of a street “deal” was the quantity of the powder being sold rather than its quality or purity. The quantity involved in this case was such that, regardless of the purity of the powder in sale, it was possible to infer beyond reasonable doubt that once broken down into typical street deals the threshold value of €13,000 would be readily exceeded.
82. The precise finding of the Special Criminal Court on this issue was as follows:
“On the question of the value of the drugs, which is relevant to count 1, the Court of course fully accepts the rationale of the Connolly decision aforesaid. However, on the facts of this particular case, having particular regard to the expert evidence of Detective Sergeant Roberts, the Court is satisfied that in these circumstances purity of the drugs had little or no bearing on their street value. As the evidence of the street value of these drugs exceeded by an enormous factor the sum of €13,000 without having regard to the purity of the drugs, the Court can have no doubt that a test of the purity of the drugs could not affect the street value to such a very large extent, and we conclude beyond reasonable doubt that the value thereof exceeded €13,000.”
83. We agree that the circumstances in Connolly can be meaningfully distinguished from those of the present case. A close reading of the judgment of Fennelly J in Connolly does not indicate that there was any evidence in that case, which involved powder containing Amphetamine rather than Heroin or Diamorphine, as to whether that determined price at street level was simply the weight or volume of the powder involved in the deal, i.e., the physical amount of powder being sold, on its own; or whether it depended on both the quantity involved and the quality of the product being sold, i.e., its purity. In the present case there was such evidence. The relevant evidence was that in the case of Diamorphine, otherwise Heroin, the street value in this country was determined by the weight or volume involved in the deal regardless of its purity. We are satisfied in the circumstances that this evidence, coupled with the evidence of the physical quantity seized, and the evidence given concerning the value of a gram of powder sold at street level, regardless of the degree to which it might be adulterated or cut or bulked up with other substances, entitled the court of trial to draw the inferences that it did.
84. We therefore reject Ground of Appeal No 7.
Ground of Appeal No 8
85. Finally, it is complained that the trial court erred in convicting the appellant on Counts 1, 2 and 3 on the indictment (charges of possession of drugs contrary to the Misuse of Drugs Act 1977, as amended) in circumstances where there was insufficient evidence that he was in possession of the drugs seized at 9 Hughes Road South.
86. The prosecution’s case in that regard was always one of constructive possession of the drugs based on control, rather than actual physical possession of them. Moreover, it was a case based on circumstantial evidence. The appellant complains, however, that the Court drew impermissible inferences from the available evidence and unjustly convicted him. In particular, in so far as physical evidence was relied upon, reasonable and plausible explanations were in many cases available that did not necessarily incriminate the appellant. An example is given in the appellant’s written submissions suggesting that items, comprising drug dealers’ paraphernalia, found in the home of Natasha McEnroe, the appellant’s partner, were open to the explanation that they belonged to Ms McEnroe if she herself was engaged in drug dealing. It is said that, in this respect, the evidence, at its height, indicated an involvement in drug-related activity but fell short of proving the element of possession beyond a reasonable doubt.
87. It was submitted that the Garda evidence about the meaning of words, phrases and slang used in this case did not establish the appellant’s role to be anything more significant than the other people in this case, even if this Court were to uphold the admissibility of those beliefs in the case. It was submitted that a considerable amount of weight was attached to a few text messages, with meanings being ascribed to those messages by Gardaí to try to bring them within a statutory definition of possession. However, those meanings were not necessarily the only possible meanings of the texts in question. Garda Curtis under cross-examination said that in his analysis, the various texts and documents found “relate to drug dealing and activity, and are commonly known as tick lists” and that “it indicates activity consistent to drug activity.” He went no further. It was submitted that it was not possible to conclude that the only possible inference from those messages was that the appellant was the person who was directing the operation. The court was obliged to adopt the inference in favour of the appellant.
88. It was also complained that while telephone evidence was presented by Detective Garda Eamon O’Brien to support the thesis that the appellant was the central cog in the machine in this case, there was also evidence of direct telephonic communications between all of the parties to the transaction, including “Nat”, Anthony Cannon and Anthony O’Connell on the days in question, which was not highlighted by the court below as being significant in any way.
89. It was submitted that there was insufficient circumstantial evidence to permit the Court to exclude the other possibilities suggested by the defence. It is said that the available evidence supports the possibility that other persons were involved in directing and controlling the drug transaction which is the subject matter of the prosecution.
90. The items found at the home of Natasha McEnroe were capable of demonstrating that she was controlling the distribution of drugs through tick lists in her own notebooks and managing the proceeds of crime through betting. The search of her home took place after Ms McEnroe had been stopped by Gardaí in October, 2008 with €49,880 in the boot of her car. She had been in telephone contact on the day of the drugs offence with the phone of Anthony Cannon and had been seen by Gardaí associating with Mr O’Connell. The appellant had been in custody since 2003. It is suggested on behalf of the appellant that there is a far more patent possibility in terms of who was directing operations in this matter.
91. It is pressed that there was no evidence in the case to establish that the appellant had any direct involvement in the possession of the drugs in this case. There may have been a genuine belief on behalf of the Gardaí who gave evidence that the appellant was the person directing the distribution of the drugs in question, but it is suggested that when the evidence is analysed, it is not possible to exclude the other possibilities.
92. The respondent emphatically rejects the complaints made in this regard. Reliance is placed on s. 1(2) of the Misuse of Drugs Act 1977, which provides that “For the purposes of this Act, any controlled drug ………. of which a person has control and which is in the custody of another who is either under the person’s control or, though not under the person’s control, acts on his behalf, whether as agent or otherwise, shall be regarded as being in possession of the person..”
93. The respondent points to the “two views rule” , and correctly identifies that the requirement to adopt the view or version favourable to the accused only arises where the tribunal of fact is not satisfied to the standard of beyond reasonable doubt that the other view or version is correct. The respondent’s case is that the alternative views/explanations contended for by the appellant were all either expressly, or by implication, rejected by the Special Criminal Court in circumstances where they were satisfied beyond reasonable doubt that the inferences invited by the prosecution were the correct ones to draw.
94. We were referred to various authorities which it is not necessary to specifically review. The appellant has referred us to The People (Director of Public Prosecutions) v Nevin [2003] 3 IR 321 at p 348 concerning how circumstantial evidence should be approached, and to the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v Cronin [2003] 3 IR 377 at 389 concerning the “two views rule . The respondent in turn has referred us to The People (Director of Public Prosecutions) v Foley [1995] 1 IR 267 and to The People (Director of Public Prosecutions) v. Tanner [2006] IECCA 151, concerning the establishment of possession of drugs by means of circumstantial evidence. The respondent also referred us to the judgment of Geoghegan J in the Supreme Court on the appeal to them in the Cronin case, in relation to what he had to say concerning the two views rule.
95. We have considered the judgment of the Special Criminal Court and find no evidence to support the suggestion that the court of trial may have misunderstood or misapplied the two views rule. We are satisfied that there was evidence to support the inferences that they drew, and that in so far as alternative views/explanations/versions were possible on the evidence that they had rejected those alternatives on the basis of being satisfied beyond reasonable doubt that the ones adverse to the appellant, and invited by the prosecution, were correct.
96. We therefore reject Ground of Appeal No 8.
Conclusions
97. In circumstances where we have seen fit to reject all of the appellant’s grounds of appeal, we are satisfied that his trial was satisfactory and that his conviction is safe. We dismiss the appeal.