Court of Criminal Appeal dismisses appeal on drug possession but certifies point of law for Supreme Court.

THE COURT OF CRIMINAL APPEAL

[Record No: CCA 259/2007]

Denham J.

Herbert J.

Hanna J.

Between/

The Director of Public Prosecutions

and

Alphonsus Connolly

Applicant

Ruling of the Court delivered the 12th day of November, 2009 by

Denham J.

1. On the 12th day of May, 2009 this Court delivered a judgment on the appeal which had been brought by Alphonsus Connolly, "the

applicant", from his conviction at Naas Circuit Criminal Court on a count of having in his possession a controlled drug, amphetamine,

for the purpose of selling or otherwise supplying the drug to another and at the time while the drug was in his possession the market

value of the controlled drug amounted to €13,000 or more.

2. The appeal had been brought on the single ground that the learned trial judge erred in fact and in law in not withdrawing the case

from the jury on an application at the close of the prosecution case of no case to answer, made on the basis that there was no

evidence on which a properly directed jury could come to the conclusion and be satisfied beyond a reasonable doubt that the market

value of the drugs was €13,000 or more.

3. The case therefore turned on whether there was evidence upon which a properly directed jury could conclude and be satisfied

beyond all reasonable doubt that the market value of the drugs was €13,000 or more.

4. Having considered carefully the evidence before the trial court, this Court found that there was no error of law by the learned trial

judge in not withdrawing the case from the jury, and the Court was satisfied that there was sufficient evidence from which the jury,

properly directed, was entitled to come to the conclusion and be satisfied beyond reasonable doubt that the market value of the drug

in the possession of the applicant exceeded €13,000.

5. The applicant applied by way of a motion seeking an order, pursuant to s.29 of the Courts of Justice Act, 1924, as substituted by

s.22 of the Criminal Justice Act, 2006, as amended by s.59 of the Criminal Justice Act, 2007, certifying that the decision of this Court

involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal lie to the Supreme

Court in the following terms, or in such terms as deemed appropriate by the Court:-

"In the prosecution of an offence contrary to Section 15(A) of the Misuse of Drugs Act, 1977 (as inserted by

Section 4 of the Criminal Justice Act, 1999),

Is it open to the prosecution to rely on generic evidence of purity in circumstances:-

(i) Where such evidence is not on the Book of Evidence,

(ii) is based upon tests to which the defence have no right of access

In circumstances where it is always open to the prosecution to analyse the purity of the controll ed drug, the subject of the

indictment and such generic evidence does not give any information on the purity of the said drug."

6. The Court has determined that this case involves a point of law of exceptional public importance and that it is desirable in the

public interest that an appeal should be taken to the Supreme Court.

7. On the facts of this case, the point of law certified is:-

"In a prosecution pursuant to section 15A of the Misuse of Drugs Act 1977, for the purpose of ascertaining the amount

of a controlled substance present in a powder in a sealed container or in a number of such containers proven by expert

evidence to contain that particular controlled substance, may the amount of that controlled substance present in the

powder be established by the oral evidence of an expert as to the range within which amounts of that controlled

substance in other powders generally fell and, if the answer is in the affirmative, must the prosecution disclose to the

defence a statement or a report by that expert setting out the facts upon which her or his opinion as to that range is

based?"