High Court allows charge where defendant admits substance is cannabis, ruling expert analysis certificate not mandatory.

Neutral Citation Number: [2007] IEHC 150

THE HIGH COURT

2006 1638SS

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL) PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

COMPLAINANT

AND

GERRY BUCKLEY

DEFENDANT

Judgment of Mr. Justice Charleton delivered on 8th day of May, 2007

1. The defendant was charged with one offence before Judge Constantine O’Leary in Cork. This alleged that on 31st January, 2005 at

Hollyhill, in the city of Cork, he had cannabis resin in his possession contrary to ss. 3 and 27 (as amended by s. 6 of the Misuse of

Drugs Act, 1984) of the Misuse of Drugs Act, 1977. Having part heard this case in May, 2005, the learned District Judge referred a

question for the opinion of the High Court in the following terms:-

“Whether the defendants’ admission that the substance recovered from his pocket was cannabis is sufficient evidence

that it was such… in the absence of a certificate of analysis from the Garda Forensic Science Laboratory confirming that

the substance was in fact cannabis.”

Facts

2. This question was raised as a result of a submission by the defending solicitor at the close of the prosecution case. Mr. Joseph

Cuddigan submitted that there was no case for the defendant to answer because the Director of Public Prosecutions had failed to

adduce into evidence a certificate of analysis that the substance found on the defendant was cannabis. For the purpose of this

procedure, the learned District Judge has found a number of facts, to which I now turn.

3. The defendant was stopped on the street on the 26th May, 2005 in Ardcullen area of Hollyhill in the City of Cork by two members

of An Garda Síochána. They searched the defendant according to the terms of s. 23 of the Misuse of Drugs Act, 1977, as amended,

and as a result of this they found a small quantity of a brown substance, which was believed to be cannabis, in the defendant’s back

trouser pocket. This substance was shown to the defendant and he was cautioned that he was not obliged to say anything. Mr.

Buckley was invited to the Garda Station for the purpose of a thorough search and, when he declined, he was arrested under s. 23 of

the Misuse of Drugs Act, 1977, as amended. After being checked into Gurranebraher Garda Station under the Criminal Justice Act,

1984 (Treatment of Persons in Custody in Garda Síochána stations) Regulations, 1987, a further search took place. The Gardaí found

a knife in one Mr. Buckley’s pockets and an item that has been described as a “hash pipe” and a balaclava. After caution, Mr. Buckley

admitted that the brown substance was cannabis and he added that it was for his own use. He also accepted that the balaclava, the

pipe and the knife were his property. Mr. Buckley was then released from custody but the relevant items were kept for the purpose of

a prosecution. The cannabis was sent for analysis to the Forensic Science Laboratory, but it would seem that it never arrived back.

Consultative Case Stated

4. I am satisfied that the question asked by the judge is both sensible and pertinent. If, however, I baldly answer it without reference

to the other facts which he has found I may be in danger of misleading him as to the appropriate law. It seems to me that the

relationship between the District Court and the High Court in these cases is similar to that expressed by Finlay C.J. in Dublin

Corporation v. Ashley [1986] I.R. 781, in relation to a consultative case stated from the Circuit Court to the Supreme Court, where

this opinion was expressed at 785:-

“The purpose and effect of a consultative case stated by a Circuit Court judge to the Supreme Court is to enable him to

obtain the advice and opinion of the Supreme Court so as to assist him in reaching a correct legal decision. Having regard

to that purpose and relationship which exists between the two courts, it would, in my view, be quite inappropriate for the

Supreme Court, for any reason of procedure, to abstain from expressing a view on an issue of law which may determine

the result of the case before the learned Circuit Court Judge.”

5. It follows that for the purpose of assisting the District Court, this court must look at the whole of the case stated and give advice

on the basis of what Laffoy J. in National Authority for Occupational Safety and Health v. O’K Tools [1987] 1 I.R. 534 at 541 called:-

“the issue on which the District Court Judge requires guidance.” Therefore, a question may be reformulated and an answer given in

the light of the whole of the case stated provided this does not exceed the facts as found for this purpose by the learned District

Judge; Collins & O’Reilly, Civil Proceedings and the State (2nd Ed., Dublin, 2004), and The Director of Public Prosecutions (Comiskey)

v. Traynor, (Unreported, High Court, 27th July, 2005).

6. For this purpose, I accept that the trial judge has an obligation to have regard to relevant evidence, since the purpose of the

criminal trial is to enquire as to whether the prosecution have adduced sufficient evidence to prove beyond reasonable doubt that the

accused committed the crime. It has been argued, and I agree, that the public interest requires the acquittal of the innocent and,

where the prosecution have discharged the burden and standard of proof, the conviction of the guilty.

Direction Stage

7. The issue before the trial judge at direction stage, on the close of the prosecution case, whether he or she is sitting with the jury

or is the sole tribunal of fact, is whether the prosecution have adduced sufficient evidence which might enable a safe conviction to

occur on a full consideration of that evidence by the tribunal of fact. In The People (The Director of Public Prosecutions) v. O’Shea

[1983] I.L.R.M. 592, Finlay P. had this to say at 594:-

“One of the functions of a trial judge in a criminal trial is to reach a decision at the conclusion of the evidence tendered

on behalf of the prosecution as to whether there is evidence which if accepted by a jury could as a matter of law lead to

a conviction. This may frequently occur in practice in cases where there is a gap in the evidence tendered on behalf of

the prosecution and where some vital link in the chain of proof is missing. It also arises in my view, however, and not

infrequently, in cases where an apparent link in the chain of proof is so tenuous that it would clearly be perverse for a

jury properly directed as to the onus of proof upon the prosecution to act upon it.”

8. The test to be applied, therefore, revolves around whether the tribunal of fact, be it judge or jury, on full consideration and having

heard speeches or submissions on both sides, could properly convict on the evidence. It is the trial judge’s duty, at that point, to

stop the trial if that evidence is absent. The trial judge must bear in mind, however, that it is the fundamental duty of the jury, or the

trial judge as tribunal of fact, to decide facts and, in that regard, to apply reason and commonsense to the evidence. It is their task

to weigh the importance of the individual pieces of evidence in determining the issue as to whether the prosecution have discharged

the burden and standard of proof. It is not the function of the trial judge at direction stage to weigh the evidence. His or her

function, at that stage, is to see whether the requisite proofs to establish the case have been adduced in evidence, bearing in mind

that there can be cases where an apparent link in the chain of proof is so tenuous that it would clearly be perverse for a properly

directed jury to act upon it. This approach accords with the law as set out in England in R. v. Galbraith [1981] 1 W.L.R. 1039 where

at p. 1042, Lord Lane C.J. gave this description as to the duty of a trial judge where there has been an application for a direction:-

“How then should the judge approach the submission of ‘no case’?

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The

Judge will of course stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of

inherent weakness or vagueness or because it is inconsistent with other evidence.

(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is

such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission

being made, to stop the case.

(b) Where however the prosecution evidence is such that its strength or weakness depends on the

view to be taken of a witness’s reliability, or other matters which are generally speaking within the

province of the jury and where on one possible view of the facts there is evidence upon which the jury

could properly come to the conclusion that the defendant is guilty, then the judge should allow the

matter to be tried by the jury.”

9. Issues of credibility are therefore not part of the trial judge’s function at the direction stage of a criminal trial. Issues as to the

absence of evidence clearly are. This case is a good example of that principle and I therefore now turn to the question posed by the

learned District Judge.

Proof of a Controlled Drug

10. The Misuse of Drugs Act, 1977 did not allow for the proof of the presence of the controlled drug, an essential element of the

charge, by any other means than the calling of oral evidence. This meant that for the seven years prior to the implementation of the

Misuse of Drugs Act, 1984, a forensic scientist had to be called in evidence to give the results of the analysis of the substance in

question. In Charleton Controlled Drugs and The Criminal Law (Dublin, 1986) the following passage appears at page 93:-

“The prosecution must prove that the substance that the accused possessed is, in fact, a controlled drug. This is almost

always done by a forensic examination of the substance. Section 10 of the 1984 Act now allows the result of such a test

to be given in evidence by means of a certificate signed by an officer of the Forensic Science Laboratory. Such a

certificate can specify, as a result of testing or analysis that a substance proved to be a certain controlled drug. It would

also be proper to prove by certificate the percentage purity of such drug and, if necessary, to identify any impurities and

their percentage presence in the substance. The section does not allow evidence to be given by certificate as to such

matters as the medicinal dosage for such a drug or the usual quantities in which such drugs are sold at street level. That

is a matter for expert evidence gleaned by experience, not analysis, and therefore does not come within the scope of the

section. Section 10 therefore should only be used in relation to charges of simple possession. The existence of a

controlled drug may also be proved by an admission by the accused to that effect; R. v. Chatwood [1980] 1 W.L.R. 874,

[1980] 1 All E.R. 467, 70 Cr. App. Rep. 39. Such an admission will be given more weight where the accused is experienced

in using or dealing with the drug; The State v. Babatunde (1982) (1) N.C.R. 243. A court of first instance in England has

however held that an analysis report should always be produced in drugs prosecutions; R. v. Lang and Evans [1977] Crim.

L.R. 286.”

11. In Bird v. Adams [1972] Crim. L.R. 174, the issue was whether an admission by the accused took possession of LSD, made after

caution, and to the effect that he had supplied the drug to five or six people, was sufficient evidence. The High Court, on a case

stated, following the conviction of the accused, advised as follows:-

“There are many instances where an admission made by a defendant on a matter of law in respect of which he was not

an expert was really no admission at all, e.g., a defendant could not know in a bigamy case whether a foreign marriage

was valid, and there were cases where an admission of fact was valueless because the circumstances were such that a

defendant could not possibly have the necessary knowledge, but here the defendant admitted that he had in his

possession a dangerous drug and had been peddling it. The defendant certainly had sufficient knowledge of the

circumstances of his conduct to make his admission at least prima facie evidence of its truth which was all that was

required at this stage in the proceedings when the submission of no case was made and accordingly, the justices, had

correctly ruled that there was a case to answer.”

12. In R. v. Chatwood, [1980] 1 W.L.R. 874, [1980] 1 All E.R. 467, 70 Cr. App. Rep. 39, the only evidence against the accused men

was that they had admitted after caution that they had been injecting themselves with heroin. By this stage the evidence was, for

that reason, missing. One of the accused persons went into evidence and said that he had been injecting himself with flour. The

Court of Criminal Appeal, per Forbes J., applied the judgment of Lord Widgery CJ in Bird v. Adams and stated at 472:-

“… it is apparent that the statements of the accused in this case, either orally to the police officer or when reduced to

writing, was sufficient to provide prima facie evidence of the nature of the substance which had been in their possession.

One of them, Proctor, as I have indicated, gave evidence, but what I have said about his statement to the police and the

fact that he was found guilty by the jury indicates quite clearly that the jury disbelieved his explanation that it was flour

and believed his earlier statement to the police that he knew it was heroin.

The court is of the view that the statements of the accused provide, having regard to the circumstances of this case,

prima facie evidence of the identity of the substance. As that is the only point on the appeals against conviction, the

appeals against conviction are accordingly dismissed.”

13. In R. v. Bagshaw [1995] Crim. L.R. 433, an issue as to whether an untested substance was or was not cannabis was resolved by

the prosecution adjourning the case and arranging for a test to be carried out at a laboratory next to the court. Defence counsel

then admitted that the drug was cannabis resin. In City of Sunderland v. Dawson [2004] E.W.H.C. 2796, the issue was whether a

charge of selling alcohol to an underage person was made out. The defence submission at the close of the prosecution case was that

there had been no proof that the bottle sold in the off-licence to the child contained anything other than coloured water and

consequently that there was a fatal absence of a certificate of analysis to show that it was alcohol. Thomas L.J. stated:-

“The analogy of requiring an analysis for controlled drugs taken, as appears from the case stated, was manifestly absurd.

It is of course true that courts do have evidence of analysis of drugs such as cannabis, cocaine or heroin. They are not

sold as labelled products and, unless there is an admission as to the substance, it is often necessary to prove what it is.”

Conclusion

14. In considering, at the close of the prosecution case, whether sufficient evidence has been adduced to allow the case to proceed

to the defence case, or to submissions, a trial judge should be concerned to see whether the proofs necessary to make out the

charge have been adduced in evidence. At that stage, the trial judge is not concerned with issues of credibility or with sufficiency of

proof but with the technical nature of the elements of the offence and whether these have been reflected in evidence by proof.

There can be exceptional cases where the nature of a necessary proof is found to be so tenuous that a trial judge would be

compelled to make a conclusion that any consequent conviction would be unsafe. In those very rare cases the issue as to conviction

might be withdrawn from the jury, or from the judge acting as the tribunal of fact.

15. Cases proceed on the basis of direct evidence and circumstantial evidence. Here, there was both. The admission by the accused

that he was in possession of cannabis constituted an admission against interest and was therefore admissible against him. A piece of

direct evidence should never be divorced from its factual background. Instead, it should be considered in the light of all the other

relevant evidence in the case. The possession of a pipe and a knife could therefore be weighed with the admission to provide it with

context.

16. In considering an application for a direction the court should not weigh the evidence but simply consider whether it is present or

not. The admission, in this context, seems to me to be no different to a statement by someone who is familiar with the qualities of an

item in question. If, therefore, on the charge of serving alcohol after hours in a licensed premises, the smell and appearance of beer

and wine before customers can, in the ordinary knowledge of people in the community, provide sufficient evidence that alcohol, as

opposed to lime cordial or cranberry juice, was being served. The qualities of cannabis are not now so unusual as to put it in a

different category so that expert evidence of its presence is always required. An accused who admits a substance is cannabis can

be, but not necessarily must be, relied on to know what he is talking about.

17. It should be borne in mind, however, that if the prosecution choose to weaken their case by not adducing a certificate of analysis

in circumstances where the nature of the substance is at the core of the charge, that applications to dismiss the charge may be

expected. I would advise, that in all the circumstances of the case, that there was sufficient prima facie proof through the admission

of the accused, coupled with the pipe and the knife, that the substance in his back trouser pocket was the relevant controlled drug.

18. Finally, there have been incidents of trickery in Dublin and in other cities, whereby a substance looking like a controlled drug, such

as cocaine or heroin, is sold at mass gatherings such as rock concerts. The customers have sometimes later found, to their benefit,

and to their monetary cost, that what they have purchased is cleaning powder. When, therefore, the judge or jury are considering

the ultimate issue as to whether the prosecution has proved their case beyond reasonable doubt, this possibility should be borne in

mind. When the prosecution adduces evidence only of an admission, the issue for the judge, at direction stage, is whether the

circumstances show that the accused can be relied on to have sufficient knowledge to allow that admission to be safely relied on;

The People (The Director of Public Prosecutions) v. McHugh [2002] 1 I.R. 352. When the issue of guilt is being considered, that issue

must be tested in the light of the burden and standard of proof in criminal cases.