Cannabis & Opium
Cases
The State (Trevor Bloomfield) v Neylon and the Director of Public Prosecutions
]1983 No. 627 SS
High Court
6 February 1984
[1985] I.L.R.M. 602
(OHanlon J)
OHANLON J
delivered his judgment on 6 February 1984 saying: The prosecutor was jointly charged, with one David Hill, on indictment before the respondent President of the Circuit Court, in the Dublin District Court, on a number of charges relating to the possession of controlled drugs, contrary to the provisions of the Misuses of Drugs Act 1977. When arraigned, the prosecutor pleaded guilty to Count No. 9, which read as follows in the indictment:
Statement of Offence
Possession of a controlled drug, contrary to s. 3 of the Misuse of Drugs Act 1977.
Particulars of Offence
Trevor Bloomfield, on 27 March 1982, within the County of the City of Dublin, had in his possession a controlled drug, to wit, cannabis resin.
Having been convicted of this charge, the prosecutor was given a suspended sentence of two years imprisonment, and was ordered to pay a sum of 1,000 towards the costs of the prosecution. The Director of Public Prosecutions entered a nolle prosequi in relation to the other charges against the prosecutor, including a charge of possession of a controlled drug for the purpose of supplying it to another, contrary to s. 15 of the Misuse of Drugs Act 1977 and the Misuse of Drugs Regulations 1979.
The prosecutor now seeks an order of certiorari to quash the order of the Circuit Court judge, on three grounds, which are as follows:
(a) that there is no power to convict or sentence on indictment in respect of possession of a controlled drug contrary to s. 3 of the Misuse of Drugs Act 1977, where such possession is for the personal use of the accused;
(b) that the sentence imposed exceeded the learned trial judges sentencing powers under s. 27 (1) of the Misuse of Drugs Act 1977, by virtue of his finding of fact that the accuseds possession of a controlled drug was for his personal use; and
(c) that the order of conviction is bad on its face and void for failing to show whether the learned trial judge found that possession was for personal use, or other than for personal use, and whether sentence was being imposed under s. 27 (1) (a) or s. 27 (1) (b) of the Misuse of Drugs Act 1977.
A conditional order of certiorari was granted by Barrington J on the aforesaid three grounds on 3 November 1983. On the hearing of the motion to make absolute the conditional order, notwithstanding cause shown, it appeared to me that the arguments advanced on behalf of the prosecutor did not proceed exactly along the lines indicated by the grounds recited in the conditional order.
Mr Carney SC, for the prosecutor, contended that there was a clear intention evinced by the Act to deal in a different way with offences involving the controlled drug known as cannabis resin, and the other controlled drugs, and that this emerged clearly when one considered the provisions regarding penalties as found in s. 27 of the Act. He further submitted that a charge brought under s. 3 of the Act was essentially a charge of unlawful possession of a controlled drug for the personal use of the accused, and that the offences of possession for sale or supply to another were dealt with by s. 15 of the Act, and that the reference in s. 27 (1) (a) to possession for personal use was mere surplusage, as it was already implied in relation to a charge brought under s. 3 of the Act. On this basis, he claimed that a charge of possession of cannabis or cannabis resin in contravention of s. 3 of the Act was only a summary offence and could not be made an indictable offence; that the only penalties which could be imposed were those referred to in s. 27 (1) (a) of the Act, and that the learned Circuit Court judge had no jurisdiction to deal with the count to which the prosecutor pleaded guilty, on indictment, or to impose the punishment referred to in the order the validity of which is now challenged.
He further submitted that if the learned Circuit Court judge had jurisdiction to deal with the charge on indictment and to impose the punishment referred to in the order, it was necessary for the order to disclose the circumstances which brought the case within the scope of s. 27 (1) (b) and outside the scope of s. 27 (1) (a) of the Act, in order to show jurisdiction; and that as it failed to do so, this afforded a further or alternative ground for quashing the order.
If the prosecutor took the view that there was no power to indict him on the charge referred to in Count No. 9 of the indictment, he should, in my opinion, have moved to quash that count when arraigned before the Circuit Court judge. He elected, instead, to submit to the jurisdiction of the Circuit Court, and entered a plea of guilty. However, this failure on his part to challenge the validity of the indictment at the proper time is not of itself sufficient to defeat a later claim that the court which sentenced him acted without proper jurisdiction: see The State (Williams) v Kelly (No. 2) [1970] IR 271.
As to the manner in which the rather complex provisions of the Misuse of Drugs Act 1977 should be construed, I am not prepared to hold with Mr Carney that the reference to possession for personal use in s. 27 (1) (a) of the Act should be regarded as surplusage, or that it is implicit in a charge under s. 3 of the Act that it refers to unlawful possession for the personal use of the accused.
S. 3 of the Act makes it an offence to have possession of a controlled drug, unless the Minister by order excludes some specific controlled drug from the scope of s. 3 (1) or unless the possession is made lawful by the effect of regulations made by the Minister under s. 4 of the Act.
S. 15 of the Act deals with the offence of possessing a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations under s. 5 of this Act. To convict someone of this offence it must be established, not only that an accused person had possession of a controlled drug for the purpose of sale or supply to another, but also that regulations have been made by the Minister under s. 5 of the Act, and that there has been a contravention of these regulations. If no regulations were made by the Minister under s. 5 of the Act, a prosecution could still be brought against an accused person under s. 3 of the Act for possession of a controlled drug, and on conviction for such an offence it would be open to the court, in choosing between the penalties prescribed by s. 27 of the Act, to have regard to the purpose for which the accused had possession of the drug whether for his own personal use, or for sale or supply to others, or otherwise.
However, with regard to cannabis or cannabis resin, it appears to me that the combined effect of ss. 3 and 27 of the Act is to create a summary offence of unlawful possession of these controlled drugs, where the possession is for the personal use of the accused, and a further offence which may be prosecuted, at the option of the Director of Public Prosecutions, as a summary offence or as an indictable offence, when it is alleged that the possession was for some purpose other than for the personal use of the accused.
This being so, it appears to me that an essential ingredient of the indictable offence is that it should be established by evidence that the possession was for some purpose other than the personal use of the accused; that this should appear on the indictment, and should also form part of the order of the court if the accused is convicted, to show the jurisdiction of the court to deal with a case which otherwise could only be dealt with summarily, and to impose a penalty appropriate to conviction on indictment.
Having regard to the contents of the affidavits which have been filed on behalf of the prosecutor and of the respondents, I am unable to hold that the learned Circuit Court judge concluded that any cannabis resin found in the possession of the prosecutor was for his own personal use and, having regard to the manner in which he dealt with the question of sentence, it appears clear to me that he took the contrary view.
However, having regard to the conclusions I have come to in relation to the meaning and effect of the relevant provisions of the statute, I must hold that the order convicting and sentencing the prosecutor was made without jurisdiction and failed to disclose jurisdiction on the face of the order. On these grounds I propose to accede to application to make absolute the conditional order of certiorari, notwithstanding the cause which has been shown to the contrary.
Galdan Properties Ltd (In Liquidation), In Re
1986 No. 191
Supreme Court
11 March 1988
[1988] I.L.R.M. 559
(Finlay CJ, Hederman and McCarthy JJ)
McCARTHY J
(Finlay CJ and Hederman J concurring) delivered his judgment on 11 March 1988 saying: Galdan Properties Ltd (Galdan) were the owners of the Cat and Cage licensed premises in Drumcondra, Dublin, which were mortgaged to the Industrial Credit Company Ltd (I.C.C.). Haughtons is a firm of solicitors practising in Dun Laoghaire and Wicklow; on 17 November 1983 they were instructed by Galdan, then trading, to prepare particulars and conditions of sale for an intended auction. The title deeds were in possession of I.C.C. as mortgagees but had been obtained from I.C.C. by Haughtons on 16 November on foot of an accountable receipt to hold the said documents in trust for the said I.C.C. and not to do any act which would enable the property dealt with by it to be mortgaged or assigned without the I.C.C’s consent or its lien thereon to be in any way postponed or prejudiced. Haughtons did the work required in preparing the conditions of sale and attending what proved to be an abortive auction held on 28 November when the property was withdrawn at £681,000. Haughtons’ charges amounted to £8,414 including VAT. On 8 February 1984 a provisional liquidator was appointed to Galdan and it is in the course of the consequent liquidation that this matter comes before this Court. The solicitors to the liquidation, Messrs A & L Goodbody, by letter of 8 February requested the return of the title deeds and, after a threat of legal proceedings, they were returned to I.C.C. with an accompanying letter of 12 March, stating inter alia:
the documents are sent to you on the strict understanding as advised to the liquidator’s solicitors that our lien is preserved and to that end that you will not part with possession of the above documents without either obtaining our written consent to do so or alternatively until an order of the Court is made determining our right to hold them in relation to our claimed lien therein. We wish to make it clear that our claim to a lien upon the documents is exercised as a claim to be entitled to hold the documents in priority to any right of the Company and the Liquidator to obtain possession of them, and it is not sought to suggest that we should rank in priority to your Company in respect of the amount due by the Company on foot of the mortgage.
By notice of motion dated 24 April 1986, the Official Liquidator applied to the court for a determination of the following questions:—
1. Whether the claim of Haughtons solicitors as creditors in the liquidation of Galdan Properties Ltd in a total sum of £8,414 is an unsecured claim, or alternatively whether the said claim enjoys any, and if so what, priority.
2. An order providing for the costs of this application.
In the High Court, Carroll J ruled that no lien in favour of Haughtons was created in the circumstances of the case and that, therefore, the solicitors’ fees were not secured in the liquidation. From that judgment and order, Haughtons appeal.
1. A Solicitor’s Lien
A solicitor holds a general or retaining lien; in that respect it differs from the ordinary lien derived from possession of the article to which value had been added and to which there attaches a lien for payment of the charges in respect of that added value. A solicitor’s lien attaches to all documents and other personal property in his possession as such solicitor and relates to all outstanding charges, as solicitor, not merely those in respect of the particular documents over which the lien is claimed. The lien entitles the solicitor to retain the documents, or other personal property till payment of the full amount of his bill, subject to taxation if required and if the bill is still liable to taxation. A general lien is not limited to solicitors; it has been applied to bankers, factors, stockbrokers, warehouse keepers and insurance brokers but such liens are discouraged because general liens are a great inconvenience to the generality of traders because they give a particular advantage to certain individuals who claim to themselves a special privilege against the body of creditors at large instead of coming with them for an equal share of the insolvent estate. (Rushforth v Hadfield (1805 6 East 519 at p. 528).
2. The case for the Solicitors
As I understand the argument, it is based upon the circumstances that Galdan authorised release of the documents by I.C.C. to Haughtons thereby impliedly authorising the creation of a lien subject to the rights of I.C.C; that the lien arose as a result of the professional work carried out and attached to the title deeds, subject to the terms of the accountable receipt; and finally, that I.C.C. took back the title deeds with notice of the claim of lien and then got paid the amount of their charge, whereupon I.C.C. held as agent for Haughtons.
Counsel for the liquidator whose duty it is to accumulate as large as possible a fund for the general body of creditors, sought to identify three facts that were, he said, inconsistent with the lien claimed:
1. The title deeds were held by I.C.C. as legal mortgagee from Galdan; the rights of the solicitor, Haughtons, could be no greater than that of the client, Galdan; the client, at all relevant times, had no right to possession of the title deeds, an essential ingredient in the solicitors’ claim to a lien.
2. The undertaking in the accountable receipt created an express trust; possession as a trustee is absolutely inconsistent with a lien by a solicitor.
3. The unilateral statement in the letter to I.C.C. did not have any consequence in the creation of a ‘notional or constructive lien after possession had been yielded’.
I would like to express appreciation to counsel for both parties for the clarity and comprehensive nature of their arguments and the authorities cited.
3. Conclusion
I am satisfied, not without regret, that the claim of lien fails. In my view, a lien, general or otherwise, ordinarily only arises by operation of law in circumstances appropriate to create such a lien. This is so whether or not the lien be that of a solicitor or a broker or a craftsman; a lien may be waived even in advance but, in the absence of any such agreement, implied or otherwise, a lien is not created by unilateral act but, rather by operation of law.
Halsbury — Laws of England — volume 1.813; volume 28. 520 and 523; volume 44.235;
Pelly v Wathen (1849) 7 Hare 351;
Re: Walker; Meredith v Walker (1893) 68 LT 517;
Young v English (1843) 7 Beav 10;
In re Llewelyn (1891) 3 Ch 145;
Re: Gough; Lloyd v Gough 770 LT 725;
In re Clarke; ex p. Newland LR (1876) 7 Ch D 575;
The Gaupen (1975) wn 138;
Caldwell v Sumpters (a firm) and another [1972] 1 All ER 567.
It is true that Haughtons did the work, did so at Galdan’s request and were entitled to be paid their proper charges at a time when they had possession of the title deeds. Their problem is that their possession was a highly qualified one. Quite apart from the very rigorous requirement on a solicitor to comply to the letter with an undertaking of the kind given to I.C.C, their possession of the title deeds was entirely conditional and, expressly, as trustees for I.C.C. No doubt I.C.C. knew the purpose for which Haughtons held the deeds and, in a sense, did benefit from the work being done, but Haughtons did not hold the deeds in any sense as agent or trustee for Galdan; in no sense did the case resemble the facts in Caldwell v Sumpters [1972] 1 All ER 567 where the original solicitors who had established their lien handed over their deeds to new solicitors with a unilateral reservation. For these reasons it seems to me the liquidator’s second proposition is correct in fact and sound in law. In the Caldwell case the new solicitors received the deeds as agents for the original solicitors and the unilateral reservation was upheld; here, I.C.C received the title deeds, not as agents or trustees for Haughtons, but as of right as the body entitled to possession.
It is not necessary to express a view on the issue of the retention of some equitable right, including a priority in liquidation, if, through force of circumstance, the owner of a lien had to part with possession of the subject matter, but, at first sight, it would seem entirely equitable that he should not lose whatever priority or other rights he might have from such possession by the mere physical parting. The problem here is that there never was a lien. It may seem unjust that the solicitors who, with the knowledge of all concerned carried out extensive professional work, should lose their priority or security and, probably, in the circumstances, remain unpaid; it is not to be overlooked, however, that in a liquidation involving the significant sum shown by the bid at the abortive auction, many other creditors who have supplied services or goods to the company in liquidation are in a similar plight.
I would dismiss the appeal.
D.P.P.- v- Michael Tanner
[2006] IECCA 151 (30 November 2006)
Composition of Court: Kearns J., Hanna J., Feeney J.
Judgment by: Kearns J.
Status of Judgment: Approved
Judgments by
Result
Kearns J.
Refuse application
Outcome: Refuse application
7
THE COURT OF CRIMINAL APPEAL
Kearns J.
Hanna J.
Feeney J.
[012/2006]
BETWEEN
THE PEOPLE (AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
AND
MICHAEL TANNER
APPLICANT
JUDGMENT of the Court delivered by Mr. Justice Kearns on the 30th day of November, 2006
On the 8th November, 2005, the applicant, together with another man, James Tobin, was arraigned on three accounts of unlawful possession of controlled drugs under the Misuse of Drugs Act, 1977 as amended by the Criminal Justice Act, 1999. James Tobin entered a guilty plea to the charges. The applicant having pleaded not guilty, his trial proceeded at Cork Circuit Criminal Court between the 8th and 15th of November, 2005, at the conclusion of which the applicant was found guilty by the jury on all three counts. On the 15th December, 2005, a sentence of fifteen years was imposed on one count, and the other remaining counts were taken into account by the learned trial judge when passing sentence.
As the essential point raised in this appeal relates to the legal requirements of possession, it is important to set out the facts in some detail.
On 3rd May, 2003, the applicant rented a designated car parking space (number 48) at Block B, South Terrace Court, Cork for a period of three months. All his dealings in relation to the rental of this designated car parking space, both then and subsequently, were with Ms. Denise Finzer, the complex manager. In renting the space, the applicant used a false name and always paid cash, renewing the rental in September, January and April in consecutive rental periods extending into 2004.
The applicant was clearly identified as the person who rented the space in question during the course of the trial by Ms. Finzer, who recognised him from having met him on at least five separate occasions.
On the 3rd June, 2004, gardaí found drugs consisting of cocaine, cannabis and ecstasy in the boot of a Ford Escort motorcar, registration number 93 C 2420, which was parked in the designated space (number 48) in Block B of South Terrace Court. The value of the drugs recovered was just under €500,000. When the vehicle was being towed away, it was noted that it was covered in dust, indicating that it had been parked for some considerable time in the designated space.
As already noted, the applicant gave a false name (Joseph Hogan) when renting this space and furnished no address, simply furnishing a contact mobile telephone number. Under the rental arrangements, he received a swipe card which allowed admission into the car park. This swipe card was subsequently found in a car owed by the applicant which was parked outside his house at Inchydoney. The circumstances of this find will be mentioned shortly.
On the 2nd June, 2004, a car belonging to James Tobin was searched and the key to the car in Block B was found in it. Tobin was arrested and brought to Bandon Garda Station. Amongst his possessions was a mobile telephone.
While present in the car park at South Terrace Court, Garda Kelleher used the land line in the office to ring the contact number which had been given to Ms. Finzer. When the messaging service on the mobile came on, Garda Kelleher left a message on the phone. This message was recovered in Bandon Garda Station on the mobile telephone taken from James Tobin.
On the 2nd June, 2004, the gardaí had searched the applicant’s home but had not searched his car which was then parked outside the house. Evidence was given by Detective Sergeant McCarthy during the trial that while the applicant was in the garda station on the 3rd June, 2004, he was overheard making a telephone call to some person and saying the following:-
“If the alarm goes off in my car, you can break the window.”
On overhearing this instruction the gardaí went with all possible haste to the applicants’ home at Inchydoney and arrived there within fifteen minutes. On arrival it was noted that the alarm in the applicant’s car had been activated and a side window, which had been intact the previous day, was now smashed. The applicant’s father, brother and girlfriend were standing to the rear of the car. This car was a silver Honda. On searching the car, the gardaí found a small compartment in the driver’s door in which the swipe card to the car park at South Terrace Court was located.
The prosecution rely on these facts which were established in evidence as being adequate to allow the trial judge rule, as he did, that the case should go for consideration by the jury. Mr. Niall Durnin, senior counsel for the applicant, submitted that, following the test laid down in R v. Galbraith [1981] 1 WLR 1039 and accepted in this jurisdiction in The People (Director of Public Prosecutions) v Higginbotham (unrep, CCA, 17 Nov 2000), the trial judge should have acceded to his request at the conclusion of the prosecution case for a direction that there was no sufficient evidence upon which the jury could properly convict. He submitted that the prosecution had failed to establish all the ingredients of the crime of possession. He submitted that there were two elements to possession, firstly the external element of possession which consists of the control of the particular object by a person, or by someone on his behalf, and, secondly, the mental element which is the awareness by him of that control. The mental element must include, it was submitted, an awareness on the part of an accused of the nature of the object or substance. It was submitted that the applicant could not properly be said to be in control or possession of something of whose existence and presence he may have had no knowledge. Mr. Durnin argued that, while some unlawful enterprise involving the vehicle may have been contemplated by the applicant, there was no evidence that he knew what, if anything, was in the boot of the motor car. It could, he submitted, just as easily have been television sets, or other items with a resale value on the black market.
Decision
It goes without saying that possession in law is not confined to actual possession, but may include various forms of constructive possession. Obviously one cannot be in possession of something unless there is some degree of control over it which constitutes possession, either personally, through leaving it in a particular place, or through ordering it to be delivered somewhere or by someone, or having power to direct another person as to how the object should be managed or controlled on the accused’s behalf. Section (1) 2 of the Misuse of Drugs Act, 1977 provides:-
“For the purposes of this Act any controlled drug, pipe, utensil or document 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 an agent or otherwise, shall be regarded as being in the possession of the person, and the provisions of section 16 and section 18 together with the provisions of this Act relating to the possession of controlled drugs shall be construed and have effect in accordance with the foregoing.”
The Misuse of Drugs Act, 1977 merely reproduces the requirement of common law that where a person other than the accused is in possession, that that other party should act on his behalf. The statutory provision therefore is merely declaratory of the position of common law. There is in addition a mental element in the legal concept of possession which consists of the awareness on the part of the accused of the nature of the substance or recklessness as to what the object is (Charleton & McDermott Criminal Law at pp 359-360).
This a case where the trial judge had to consider if there was sufficient evidence for the jury to infer possession thus defined from surrounding circumstances. He was entitled to do so where the circumstances were consistent with guilt and at the same time inconsistent with any other rational hypothesis based upon the same set of circumstances (The People (Director of Public Prosecutions) v O’Shea [1983] ILRM 592).
As noted by Charleton and McDermott (at para. 5.16):-
“An inference of the external and mental elements of possession thus becomes an operation of degree. The more obviously the individual facts imply possession the more readily it will be inferred: the looser the association between the illicit object and the accused the more tenuous becomes the prosecution case that the accused was in possession.”
In the People (DPP) v Eamonn Kelly Court of Criminal Appeal, 4 March 1996, the accused and another person parked a vehicle in the car park of a Dublin hotel. The second person went into the hotel and obtained possession of a bag of cocaine which was wrapped like a packet. On returning to the car he handed the bag to Kelly in the driver’s seat of the car. The evidence established that Kelly opened the bag looked into it, then placed it between the seats and concealed it by removing the car jack from in front of an aperture and putting the packet therein. He then drove out of the car park, but was apprehended by the gardaí. He claimed not to know what the contents of the bag were and denied ever looking into the bag. However, the Court of Criminal Appeal was satisfied that the jury had been right to convict the accused.
It goes without saying that substances such as controlled drugs may be dressed up to resemble innocent items or products. This may render it extremely difficult to establish that an accused had precise knowledge of the nature of the object. This in many instances could provide a basis for acquittal if it was necessary for the prosecution to show in every case that an accused had actual knowledge of the nature of the object in the possession of another, even where such person is acting on his behalf.
This Court is of the view that proof of reckless disregard for what the object might be may also suffice to convict. The following statement of the law in this respect was, in the view of this Court, correctly summarised in Saad [1987] 29 A Crim R 20 in the following terms at p. 21:-
“In a case such as the present where it is necessary to show an intention on the part of the accused to have in his possession a narcotic drug, that intent is established if the accused knew or was aware that an article which was intentionally in his possession comprised or contained a narcotic drug. That is not to say that actual acknowledge or awareness is an essential element of the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained a narcotic drug would obviously sustain an inference of intention. So would proof of the possession of the forbidden drug in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and he nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the possession of narcotic drugs if it is proved beyond reasonable doubt that the accused was actually in possession of the drug and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in his possession and of the likelihood that it was a narcotic drug.”
This definition adequately encompasses the concept of ‘recklessness’ as contained in Charleton & McDermott and effectively says the same thing.
The Court is satisfied in the present case that all the requisite elements of possession, as that concept is understood in Irish criminal law, were present. There is a complete absence of any legitimate paper trail surrounding the transaction for the rental of the designated car parking space. A false name was provided in connection with the rental which was paid for in cash. A designated space was provided for the applicant and it was in this space that the vehicle, which had been parked there for some considerable time and which contained this massive haul of drugs, was found. The conversation overheard in the garda station, followed almost immediately by the recovery of the applicant’s car with the side widow broken and at a time when its alarm was sounding are also material circumstances. The phone number furnished by the applicant was that of the mobile found in the possession of the co-accused. The key which opened the car parked in the Southern Cross car park was found in the possession of James Tobin, the co-accused, who was not the owner of the vehicle. No explanation of any sort was offered by either man to explain away the presence of the drugs or to raise an inference of some innocent explanation. On the contrary, the evidence pointed towards a joint enterprise and a common design as between the applicant and his co-accused.
The Court will therefore dismiss the appeal and uphold the conviction.