Court of Criminal Appeal dismisses appeal on drug possession convictions due to sufficient evidence for jury trial.

THE COURT OF CRIMINAL APPEAL

[C.C.A. No: 28 of 2008]

Denham J.

Herbert J.

Clarke J.

Between/

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

Adrian Boyle

Defendant/Appellant

Judgment of the Court delivered on the 28th day of January, 2010, by Denham J.

1. An application for leave to appeal has been brought by Adrian Boyle, the defendant/appellant, referred to in this judgment as "the

appellant", against the convictions imposed on the 26th January, 2008 for the unlawful possession of a controlled drug for the purpose

of selling or otherwise supplying it; and against the sentence of 8 years imposed on the 30th January, 2008, to date from the 26th

January, 2008. This judgment relates to the application for leave to appeal the convictions. Depending on the outcome of the

application in relation to the convictions, the Court at a later date may address the issue of sentence.

The appellant appeared before the Circuit Criminal Court at Trim, County Meath, between the 16th and the 26th January, 2008 where

he was tried on Bill No. MH09/07 which contained 5 counts relating to him. These were:-

Count No.6 - unlawful possession of a controlled drug, cocaine, at Mooneystown, Athboy, Co. Meath, for personal use.

Count No.7 - unlawful possession of a controlled drug, cocaine, for the purpose of selling or supplying.

Count No.8 - unlawful possession of a controlled drug, cocaine, for the purpose of selling or supplying, being cocaine, the

market value of which amounted to €13,000 or more.

Count No.9 - unlawful possession of a controlled drug, cocaine, for the purpose of selling or supplying.

Count No.10 - unlawful possession of a controlled drug, cocaine, for the purpose of selling or supplying, being cocaine the

market value of which amounted to €13,000 or more.

All counts related to the possession of cocaine at the same address on the 5th August, 2006. The first three counts (6, 7 and 8)

concerned possession of the controlled drugs in a shed. The last two counts (9 and 10) related to possession of the controlled drugs

in a container at the rear of the shed.

The appellant was acquitted by direction of the trial judge on Count No.6. The learned trial judge ruled:-

"However, with regard to the section 3 offence, that is count 6 on the indictment, I am unsure as to what evidence there is as to the

accused being in possession of a controlled drug euphemistically referred to as "possession for one's own use", since that is the

alternative to possession for supply otherwise sections 15 and 15A. He was searched in the garden or shed and was not in possession

of any drugs on his person.

The question then arises of which exhibit was he possessed which was of such a quantity that was small enough to fall into this

bracket. … So it seems to me that there is no evidence to support a section 3 prosecution for the simply reason that the accused

was not in possession of any quantity small enough to bring him within the scope of section 3."

[Emphasis added]

[Transcript from the 24th January, 2008, at p.5, line 8]

The jury, after deliberation, found the appellant not guilty in relation to Counts No.9 and 10 - that was possession of the controlled

drugs in the container at the rear of the shed.

The jury, by a majority of 10-2, found the appellant guilty on Counts No.7 and 8, which related to possession of the cocaine in the

shed with intent to supply, and possession of that cocaine for sale or supply where the value exceeded €13,000.

On the 30th January, 2008 the appellant was sentenced to eight years imprisonment on Count No.8, the s.15A offence. No sentence

was imposed in relation to Count No.7.

In written submissions counsel on behalf of the appellant distilled the grounds of appeal in relation to the conviction as follows:-

(i) The trial judge erred in law in receiving a verdict in respect of Counts 7 and 8. The appellant was acquitted by direction on Count

No.6 and he was also acquitted on Counts No.9 and 10. The decision to convict on Counts 7 and 8 was perverse, was equivocal at

best, was bad and contrary to law and did not constitute a valid verdict being returned. He should have been acquitted on those

counts.

(ii) There was no evidence proffered as to the valuation of the drugs in respect of Counts 7 and 8.

The trial judge erred in refusing to grant directions.

Oral submissions

Counsel submitted that the verdict was perverse as the appellant had been acquitted by direction of the trial judge of the possession

of the same drugs for personal use. It was submitted that s.15, by operation of law, places a presumed intent onto the fact of

possession. However, one cannot have "possession with intent" where one does not have "possession" in the first place. It was

submitted that, as the appellant had been found not guilty, by direction, of the possession of the drugs in the shed on the s.3

offence, he could not have been validly convicted under s.15 for the possession of controlled drugs for unlawful sale or supply. It was

submitted that the trial judge incorrectly held that the s.3 count was an alternative to the s.15 and s.15A counts when he directed

the jury to acquit on that ground. It was submitted that the learned trial judge was incorrect as "simple possession" was not an

alternative. It was submitted that it is a condition precedent to a conviction under s.15 and s.15A that the essential element of

possession be established on either of such charges. It was submitted that the direction of the judge in relation to Count No.6 to

acquit in relation to possession of cocaine in the shed should have resulted in a not guilty verdict on Counts No.7 and 8, which

related to possession for supply. As the jury found the appellant guilty on Counts No.7 and 8 and not guilty on Counts No.9 and 10,

Counsel submitted that the verdict was perverse and contrary to law. Further, Counsel submitted that there was no cogent evidence

upon which a jury could find that the appellant aided and abetted.

Issues

Essentially there are two issues in this appeal. First, the issue of possession and the direction on the section 3 charge. Secondly, the

issue of possession in light of the facts of the case and Counts No.7 and 8. The case distilled down to the question as to whether

there was enough material to go to the jury.

Section 3 direction

In giving a direction on Count No. 6 it appears that the learned trial judge did not address the issue of “possession in law” at all. What

the learned trial judge ruled was that the quantity of the drugs involved, as established by the evidence, was such that no

reasonable jury properly directed could properly hold that its possession, should that be established, was for a purpose other than for

selling or supplying.

The appellant was acquitted by direction of the trial judge in relation to Count No.6; the section 3 charge. It is clear from the terms

of the ruling, which is set out earlier in this judgment, that this was done on the basis of the quantity of the drug. The learned trial

judge directed that the accused was not said to be in possession of a quantity of the controlled drug small enough to bring him within

the scope of section 3. Whether the learned judge was correct in his analysis as to the issue of quantity is not in issue. However, it is

clear that the learned trial judge was making a determination that if there was evidence that the appellant had possession, the

evidence could only relate to possession of a quantity which was not small enough to be for his own use. There was no finding of an

absence of sufficient evidence to the effect that the appellant was not in possession. Indeed, quite the contrary, it was the quantity

of controlled drugs that was said to be in his possession that the trial judge ruled was not small enough to be for his own use. The

learned trial judge addressed the issue of quantity and held that the quantity of the drug was not such as to meet the requirements

of section 3. Consequently, no issue arises on this ruling as to the possession of the controlled drugs upon which the appellant could

ground his appeal.

Possession and Counts No.7 and 8

The second issue arises on the facts and it is whether there was sufficient evidence as to possession by the appellant of the

controlled drugs in the shed to go to the jury.

All counts related to the possession of cocaine at an address in Athboy on the 5th August, 2006. Counts No.6, 7 and 8 related to

cocaine in a shed, Counts No.9 and 10 related to the possession of cocaine in a container at the rear of the shed.

Members of An Gárda Síochána, acting on a warrant, conducted a search at the address and found cocaine in the shed and in the

container. When the gardaí raided the premises they saw three men in the shed, one man, who is now deceased, the appellant and a

third man. The two other men took off rubber gloves when the building was raided and a few pellets of cannabis resin were found on

their persons. The appellant was not wearing rubber gloves and no controlled drugs were found on him. The appellant had permission

to be in the shed. He was present in the shed, and he had opened the shed doors for the other two men.

The appellant said he was in the shed nearly every day. He said he was there to tidy up.

Counsel for the appellant submitted that, notwithstanding the acquittals on Counts No.6, 9 and 10, the jury perversely, by a majority

of 10-2, found the appellant guilty on Counts No.7 and 8. Counsel submitted that the learned trial judge should have directed an

acquittal on Counts No.7 and 8.

Charge

The learned trial judge did not direct an acquittal on Counts No.7 and 8. In his charge the learned trial judge dealt with several issues

relevant to the matters in this appeal.

Presumption

The learned trial judge stated:-

“Section 15 too introduces a presumption, ladies and gentlemen, and I have to bring this presumption [sic] your attention. The

presumption is that in any proceedings for an offence under subsection 1, that is possession for sale or supply, where it is proved

that a person was in possession of a controlled drug and the jury having regard to the quantity of the controlled drug that the person

possessed or to such other matters as it considers relevant is satisfied that it is reasonable to assume that controlled drug was not

intended for the immediate use of the person, 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.

So what that basically means, ladies and gentlemen, is that if a person was charged under section 15 and they had only a small

amount of drugs on their possession, they could rebut the presumption that they were selling, but if one is caught under section 15

and you have a large amount of drugs in your possession such that it is obvious that they are not for your immediate personal

consumption, then you are presumed in those circumstances to have them in your possession for the purpose of sale or supply. I

don’t know what the threshold is, but the evidence was that street deals are a gramme. So I think it is fairly clear that if you are in

possession of 100 grams or 400 grams you are not going to use that for immediate personal consumption. In those circumstances,

then the presumption is, until it is rebutted the presumption is that you have it in your possession for the purpose of sale or supply.

The same presumption applies in the case of section 15A.”

[Transcript from the 25th January, 2008, at p.47, line 20 to p.48, line 7]

Possession

As to possession, the learned trial judge stated:-

“‘Possession’ is a term which needs to be addressed and needs to be explained. Where a person is in actual physical possession,

control of an object, there is little difficulty in establishing physical possession. But physical control consists of the ability of the

possessor to deal with the object as he desires. You cannot be in possession of an object unless there is a question of control over

that object in order to constitute possession. Possession for the purposes of the misuse of drugs, such as in this case, requires

something more. It requires that you have guilty knowledge. If you know that you are in possession of a prohibited object or

substance, you have the mental state equivalent to intent to possess. If you think you have a prohibited substance and ignore the

possibility or deliberately take a chance, then the mental state is the equivalent to recklessness. It is this possession with the

attendant mens rea, as it is referred to in the old system, the old Latin, or guilty knowledge that is prohibited by the misuse of drugs.

Possession plus knowledge are the crucial factors in this. You must be satisfied beyond a reasonable doubt that the [appellant] had

that guilty knowledge and that he intended to do a prohibited act, that was to possess drugs, in other words, the fact that he had

possession of the drugs with knowledge that they were drugs, controlled drugs, and that is was prohibited. So those factors have to

be present before possession is established.”

[Transcript from the 25th January, 2008, at p.48, line 13 to line 31]

Aiding and Abetting

The learned trial judge charged the jury on the issue as follows. He stated:-

“Ladies and gentlemen, the issue of joint enterprise arises in this case. That ranges from being involved in the planning, preparation,

the actual hands-on involvement as a person involved in the highest degree. It ranges from that down to the most minor aiding and

abetting, minimal aid or encouragement or assistance. Now what is aiding and abetting? An aider or an abettor is someone who assists

in the commission of a crime, whether by the supply of the instrument by the means of which the crime is committed or facilitated, for

instance, by keeping watch at a distance from the actual commission of the crime or by actively encouraging. The abettor is

somebody who would encourage the commission of the crime.

…

Now there is no requirement that an aider or abettor should make substantial contribution to the commission of an offence. Opening

and closing a gate might be enough. The liability arises by virtue of offering the aid in the commission of the crime. It is only

necessary to prove that he intentionally joined in the commission. If that is absent, the intention to join in the commission is absent,

there is no crime. Mere presence is not sufficient. There must be some act of aiding or abetting over and above mere presence. The

prosecution must prove that the accused was present in order to further the crime. One can actually be present, but if one doesn’t

do anything in the furtherance of the crime one will not be liable. So one could conceivably open and close a gate, but if one does

not know that those for whom you do that act are engaged in a criminal activity, you will not be guilty of aiding and abetting.”

[Emphasis added]

[Transcript from the 25th January, 2008, at p.48, line 33 to p.49 line 33]

The learned trial judge then referred to the circumstances of the present case and stated:-

“So I suppose one could say that in the present instance if you were to find that the [appellant] in this case did open the gate, and I

am not suggesting that you do, I am just saying if, that he did open the gate and closed the gate, he would not aid or abet in the

commission of the crime if he did not know that the persons on whose behalf he opened and closed the gates were engaged on

criminal activity. But if he opens the gate and closes the gate innocently for somebody and then thereafter discovers that they were

involved in criminal activity, the opening and the closing of the gate does not involve him as an aider or abettor. He must know at the

time he does the act. It cannot be retrospective. It has to be known at the time.”

[Emphasis added]

[Transcript from the 25th January, 2008, at p.50, line 1 to line 12]

Later the learned trial judge referred again to the acts of the appellant at the shed. The learned trial judge stated:-

“So on his own account as given to the gardaí, for whatever reason, he said initially that he went to the garage and went in through

the wicker door since he couldn’t open the shutter door from the outside, and then in the last interview, the last memo of interview,

he stuck with that for part of it and then finally said that he opened the shed door and they went in.

Now, ladies and gentlemen, it has been suggested to you that there could be an act of aiding and abetting and indeed it could, but it

could only be an act of aiding and abetting if when he opened the gate, if that is what he did and you have to remember his evidence

as he gave it himself from the witness box which was in accord with that, that he went in the wicker door, opened the main shutter

door which you can see in the photographs, yellow 1 I think, yes, yellow 1 shows both doors, it shows the wicker door and it shows

the shutter door, so he says he went in through the wicker door and then opened the shutter door and they drove in. That may well

be so, that’s a matter for you to decide on the evidence which you have heard but you then have to ask yourself: Is that an act of

aiding or abetting? It is only an act of aiding or abetting if when he opened the door he did so to assist in the commission of a crime

and to do so he had to know that a crime was being committed. If he opened the door purely and simply to allow them to drive in,

then no crime was committed. If he opened the door – and the suggestion has not been made I hasten to add – to allow them to

drive in to hide the car, then a crime could have been committed. But if he opened the door in the sure knowledge that they were

going to come in and start mixing drugs, then he is undoubtedly aiding and abetting. There is no evidence, there is no evidence

whatsoever of that being the case, but it is something which you will have to consider. You cannot make any finding on something

when there is no evidence.”

[Emphasis added]

[Transcript from the 25th January, 2008, at p.55, line 24 to p.56 line 15]

The learned trial judge when he addressed the issue of aiding and abetting, cited the provisions of s.7(1) of the Criminal Law Act,

1997, which repealed in full the Accessories and Abettors Act, 1861 and provides that any person who aids or abets the commission

of an indictable offence may be indicted, tried and punished as a principal offender. The learned trial judge in his charge made it

abundantly clear to the jury that mere presence was not sufficient. He instructed the jury correctly that one cannot be an aider and

abettor by accident. One must intend to encourage or assist in the knowledge that the activity constitutes or will result in the

commission of a crime. The prosecution must prove that the appellant was present in order to further the commission of a crime. An

accused can be present throughout, but if he or she does not do anything in furtherance of the crime the accused will not be liable

as an aider or abettor.

Presence at the commission of an offence can be evidence of aiding and abetting only if accompanied by some other factors

indicating assistance or encouragement. So what other factors are present on the evidence in the instant case?

The learned trial judge told the jury:-

“… So he says he went in through the wicker door and then opened the shutter door and they drove in … Is that an act of aiding and

abetting? It is only an act of aiding and abetting only if when he opened the door he did so to assist in the commission of a crime and

to do so he had to know that a crime was being committed. If he opened the door purely and simply to allow them to drive in, then no

crime was committed … But if he opened the door in the sure knowledge that they were going to come in and start mixing drugs, then

he is undoubtedly aiding and abetting. There is no evidence, there is no evidence whatsoever, of that being the case, but it is

something which you will have to consider. You cannot make a finding on something when there is no evidence.”

[Transcript from the 25th January, 2008, at p.56, line 2]

What does the phrase “but it is something which you will have to consider” mean? The Court rejects the contention that the learned

trial judge was inviting the jury to have regard to something in respect of which he had just immediately before instructed them that

there was no evidence. The Court is satisfied that the learned trial judge was advising them that in considering whether the applicant

had opened the door and the state of his knowledge when so doing, if he did, they must be careful to take this absence of evidence

into account.

The learned trial judge made it abundantly clear that it was not open to the jury to consider that the opening of the shutter door, the

admission of the two other men in a vehicle, and his mere presence in the shed would be sufficient to establish aiding and abetting.

However, there was further evidence relevant to this issue of aiding and abetting. In addressing the jury Mr Kilfeather told them:-

“He [the appellant] left it open that morning. The garage is very seldom locked because apparently they have a dog around. And yet

when the guards arrived at 5.15 or thereabouts, that garage was locked. Detective Garda Mulvaney only gets in when the door [is]

unlocked by Mr Boyle. The only person on his own evidence that had any dealings with the doors or means of entry to this shed was

Mr Boyle. He opens the shutter. He closes the shutter.”

[Transcript from the 25th January, 2008, at p.15, line 4]

In his speech to the jury, Mr Goldberg said as follows:-

“Mr Kilfeather says to you that the door was locked, but how could it have been locked? It was a door which only had a lock on the

outside, a padlock on the outside. There is no evidence that it had a locking mechanism on the inside. Garda Mulvaney did not try to

gain admittance through that door. There is no evidence that Garda Mulvaney put his hand up and pushed back the latch or tried to

push back the latch. There is evidence that Mr Boyle opened the door and let the gardaí in. There is no suggestion from his point of

view that he was trying to escape, and certainly I don’t think it would have been possible anyway.”

[Transcript from the 25th January, 2008, at p.21, line 5]

The learned trial judge in his charge to the jury (bk.7, p.55 -56) addressed the issue of the applicant opening the door and admitting

them in (as cited above), but he did not refer to whether or not either of the doors was locked when the members of An Garda

Síochána arrived. This was raised by Mr Kilfeather in his requisitions, he claimed that the evidence established that the shutter door

and the wicker door were locked. [See Transcript from the 25th January, 2008, at p.63, line 16]. The learned trial judge however, did

not choose to recharge the jury on this point.

The Court is satisfied that in fact there was other evidence which could go to the jury on the question of aiding and abetting,

including whether there was a significant departure on the occasion from the appellant's admitted normal routine in relation to the

closing of the shed doors, whether the doors were locked, whether the appellant, who was a lawful occupier, and these two other

men, were inside the shed behind closed doors and locked doors with the drugs and drug handling equipment and with no tidying up or

any other work of any sort being carried on.

This case is clearly distinguishable on its facts from the cited case of R. v. Bland [1987] 151 J.P. 857. In that case the Court of

Appeal, Criminal Division, found that there was no evidence of any assistance by the appellant, active or passive. She and her co-

accused lived in the same room which was also occupied by others. There was evidence from which a jury could infer that she knew

of her co-accused’s drug dealing but no more. In the subsequent case of R. v. McNamara and McNamara (Court of Appeal –

Criminal Division, 20th November, 1997, [1998] Crim.L.R. 278), the court pointed out that Bland:-

“was a decision on a particular case on its own facts and it was wrong to evaluate it into a statement of principle. The court in that

case was not laying down general rules about the evidence necessary for inferences to be drawn in respect of possession or joint

enterprise in such cases.”

In the instant case there was no evidence directly connecting the appellant with actual possession or control of the items on the

bench in the shed or in the filing cabinet. However, there was evidence that the appellant was a lawful and also a de facto occupier

of this shed. There was evidence that he was there every day. From this it was open to a jury properly to conclude that the drugs

and drug handling equipment, not least the adapted compressor, could not have come and remained there without his knowledge and

at least tacit, in the sense of passive, consent. This was not a shared space, as in the Bland case, over which the appellant had no

control and to which others were free to come and go and do as they pleased. While this might not be sufficient to establish actual

physical possession or control over these items it was evidence sufficient to go to a jury of offering assistance and encouragement to

the two other men in using the shed for the unlawful purpose.

The fact that the appellant gave differing accounts of events when interviewed by An Gárda Síochána, establishes nothing more than

that his credibility as a witness might be suspect. However, it was open to the jury to accept that the version of events which he

gave at the fourth interview was correct, and that he had opened the shutter door and allowed the other two to drive in. The learned

trial judge warned the jury that this could not in itself amount to evidence of aiding and abetting. However, it was evidence sufficient

to go to the jury with the other evidence as a strand in the rope of circumstantial evidence, from which the jury could properly

conclude that the appellant was guilty of intentionally providing active or passive assistance to the two others in the commission of

the crime.

It was open to the jury to decide, on the evidence, whether the appellant had attempted to flee when the “armed gardaí”

announcement was made.

This Court is satisfied that the evidence was sufficient to meet the third test in R. v. Galbraith [1981] W.L.R. 1039, as applied in

Director of Public Prosecutions v. Barnwell (Unreported, C.C.A., 24th January, 1997): Director of Public Prosecutions v. “M”

(Unreported, C.C.A., 15th February, 2001), and the learned trial judge in the instant case was correct in permitting it to go to the

jury. The third test is:-

“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 a 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 …”

This was a case based on circumstantial evidence. There was circumstantial evidence which the judge left to the jury to consider.

It was open to the jury to find the following relevant facts:

The appellant was present in the shed, and he said he was there to tidy up;

The appellant was there on a daily basis;

It was a small building;

There was a bench in the shed;

On the bench was a weighing scales, a razor blade, money, a coffee blender, a bin with capsules, and a red compressor

machine modified to compress drugs;

There was cocaine on the weighing scales, and controlled drugs in a filing cabinet;

When Sergeant Barrons looked in the shed window he saw the appellant standing at the bench with the two other men;

The appellant had attempted to flee when the shed was raided;

The appellant was interviewed four times and he gave two versions of events, three times he said that the other two men

were present when he arrived, on the fourth interview he said he arrived first and that he had opened the door for them;

The doors of the shed were locked.

None of these factors taken in isolation would be sufficient to ground a finding of guilt, but taken together they amount to evidence

which the trial judge was entitled to let go to the jury.

The Court is satisfied that the learned trial judge did not err in refusing to grant directions and in letting the matter go to the jury.

There was sufficient evidence for the learned trial judge to let the case go to the jury on the issue of aiding and abetting.

In the written submissions Counsel on behalf of the appellant raised the issue of the valuation of the controlled drugs. However, this

was not advanced in oral submissions. The Court is satisfied that Counsel was correct in this approach as, on reviewing the matter,

there was evidence before the trial court as to the value of the drugs; the Court would dismiss this aspect of the appeal also.

Consequently, the Court will treat the application for leave to appeal as the hearing of the appeal on the issue of the convictions and

dismiss the appeal on that ground. The matter of sentence has yet to be the subject of an oral hearing.