Court of Criminal Appeal refused certificate for Supreme Court appeal on drug importation defence not raised at trial.

THE COURT OF CRIMINAL APPEAL

[Appeal No. 2008/218 CCA]

MacMenamin J.

Moriarty J.

McGovern J.

BETWEEN:

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

PERRY WHARRIE

APPLICANT

Judgment of the Court of Criminal Appeal delivered by MacMenamin J. on the 4th day of October, 2016

1. Eight years ago, after a trial lasting 41 days in the Cork Circuit Court, the applicant, Perry Wharrie, was convicted of offences

under the Misuse of Drugs Act, 1977. These offences were:

(i) Simple possession of a controlled drug under s.3 of the Act of 1977, as amended;

(ii) Possession of such a drug for the purposes of sale or supply, pursuant to s.15 of the Act of 1977, as amended;

(iii) Possession for sale or supply of such a drug, the value of which exceeded €13,000, pursuant to s.15 of the Misuse of

Drugs Act, 1977, as amended.

2. Having been convicted, the applicant was sentenced to a lengthy term of 30 years imprisonment. He brought an appeal against the

conviction to the Court of Criminal, and this Court (MacMenamin J., de Valera J., McGovern J.), which delivered judgment on that

appeal, upholding the conviction, on the 19th April, 2013. Subsequently, a different panel of the Court (MacMenamin J., Moriarty J.,

Hunt J.) addressed the question of sentence, and the applicant’s original sentence of 30 years was reduced to an effective term of

22 years and 6 months, as a headline sentence, with a deduction of 5 years to reflect all mitigating factors.

3. Arising from the judgment of 19th April, 2013, the applicant now seeks a certificate pursuant to s.29 of the Criminal Justice Act,

1924 (as amended), for leave to appeal to the Supreme Court. He wishes to argue the following point of law:

“Are the offences under s.15 and s.15A, respectively, of the Misuse of Drugs Act, 1977 (both being offences of

possession of controlled drugs for sale or supply), subject to the restriction that the said offence(s) are not committed

where the evidence in a case establishes that the controlled drugs in question were destined for sale or supply to

persons in another jurisdiction, rather than to persons within the State itself?”

4. It is necessary, first, to say something about the evidence adduced at the trial. The prosecution case was that the appellant was

part of a large scale international drugs importation operation. The cocaine consignment was to be transferred from a yacht, the

Lucky Day, by inflatable rib to the West Cork coast. A significant number of those involved in all aspects of the scheme were citizens

of the United Kingdom. Some of the ‘reception party’ entered this State, using false passports. They entered the State a period of

days before the attempted importation. The appellant was one of those persons.

5. The consignment was, by any standards, a very large one. It was valued at between €100 million and €440 million. There were

references during the case to other non-Irish persons said to be involved, who were not before the Court. There was no evidence

before the Court that this enterprise was organised by Irish citizens, or that this very large consignment of drugs was, or even could

have been, intended for sale in Ireland. Even the very size of the consignment would militate against any such conclusion.

6. Counsel for the appellant now says that the question that the consignment was for sale or supply outside the jurisdiction only

came to light after conviction, when a senior member of An Garda Siochana, Superintendent John Healy, testified to that effect.

Counsel now says this constitutes non-disclosure. That point was not made at the trial, or sentence hearing. The Court cannot

accept this proposition. In the circumstances earlier outlined, it cannot be convincingly suggested that this testimony from

Superintendent Healy, that the consignment was intended for use out of the jurisdiction, came as a bolt from the blue. In fact, the

contrary must be the situation. All the circumstances, and the evidence, suggested this was the case. Yet, none of the defence

counsel, including the applicant’s own counsel, raised any question as to there being a deficiency in the prosecution case on this

basis, at the direction stage, or at the conclusion of the evidence, or at any other time.

7. A consideration of the judgment delivered by this Court on the 19th April, 2013, demonstrates that the applicant’s defence was

carried out by highly competent senior and junior counsel, in a carefully thought out tactical way. The applicant did not testify. That

was his entitlement. The main plank of his case was that there was no, or no sufficient, evidence to show, to the requisite standard,

that he was part of this large international joint enterprise.

8. The circumstances of his involvement are further described in the judgment of this Court on the appeal against sentence, which

was delivered on the 15th day of February, 2016, and do not require reiteration.

9. A description of these essential facts is necessary, because of the circumstances in which this application is now made. Despite

the many other points made at trial on behalf of the applicant, the point now sought to be canvassed was not raised at the trial. It

was only canvassed at the appeal to this Court, at the conviction hearing. Relying on D.P.P. v. Cronin (No. 2) [20106] 4 I.R. 329, this

Court held that, as the point had not been raised at trial, it would not entertain the issue on appeal.

10. In its judgment of 19th April, 2013, this Court set out the circumstance whereby, at the sentencing hearing, Superintendent John

Healy testified that the drugs were not for the Irish market. The judgment relates that counsel who appeared in the appeal for the

applicant, (who did not appear at the trial), submitted in the appeal that the Misuse of Drugs Act, 1977 did not prohibit the sale or

supply of drugs outside the State itself. He cited English authority to this effect (see R v. Seymour [2008] 1 AC 713 and R v. Hussein

[2011] 1 QB 1).

11. On this, the Court ruled, at paragraph 125:

“This contention was not made at the trial. On this basis alone, the court would not entertain the point, even if it is now

re-characterised as an issue of “want of disclosure” (see DPP v Cronin (No.2) [2006] 4 I.R. 329).”

The Court went on to point out that:

“Even were the point to be entertained, the court would observe that this precise point is covered by authority.”

The Court went on then to consider Irish authority on the point (DPP v Van Onzen and Hoopmans [1996] 2 I.L.R.M. 387). The Court

also outlined other considerations, which would support the conclusion drawn by this Court in Van Onzen. The passages cited make it

crystal-clear that the point now sought to be raised for certification was not part of the ratio of the Court’s decision at all. Rather,

this Court specifically pointed out it would not entertain the point, but adding that, even were it to be entertained, the Court would

have held against the applicant.

12. In approaching matters as it did, this Court applied the judgment of the Supreme Court in People v. Cronin, cited earlier. In order

for a point to be entertained that was not raised at the trial, the Supreme Court pointed out in Cronin that it was necessary that

there should be “some error or oversight of substance shown”. This would have to be sufficient to ground an apprehension that a

real injustice had occurred. The Supreme Court also emphasised a further requirement, to the effect that there would have to be

some sort of explanation tendered as to why the particular point had not been taken at trial. In his judgment in Cronin, Kearns J. went

on to point out that, without such a limitation, cases would continue to occur where a trawl of a judge’s charge, years after the

event would be made, to see if a point could be found which might have been argued, or might have been the subject matter of a

requisition. That judge commented that such a procedure was “entirely artificial” to a review of a trial, and one totally disconnected

from the reality of the trial itself. These observations apply here. It is entirely clear that this Court, in fact held it would not entertain

the point now sought to be certified. The other observations were obiter. This is relevant for the reasons now set out.

13. In the recent past, this Court has addressed the general criteria for s.29 applications. Two judgments are particularly relevant.

These are The People (DPP) v. Patchell [2014] IECCA 6, and The People (DPP) v. Cooke [2015] IECCA 5, Unreported 28th July, 2015.

14. These judgments clearly establish that for the grant of a certificate under s.29 it must be shown that the proposed point must

have been “involved” in the decision of the court, in the sense that the court’s ruling on the point formed part of the reasoning

leading to the rejection of the application. In other words, it must be possible to identify that point of law as being part of the ratio,

that is, one upon which this Court relied, and applied, in making its decision.

15. Both in Patchell and Cooke, this Court emphasised that appeals should not be used as an opportunity of simply re-running issues

which were argued in the substantive appeal. The Court has also laid emphasis on the fact that a certificate will not be granted

where a point sought to be certified is futile, moot or not pending, or had no direct impact in the appeal. All these points are relevant

criteria here.

16. In this appeal, the applicant faces insurmountable obstacles. These include the fact that the point was not raised at the trial at

all, and the Court ruled that it would not entertain the point. But, additionally, and for the reasons outlined above, it follows that the

point now raised does not satisfy any of the criteria, just identified, and as outlined by this Court in Patchell and Cooke. The point in

the application raised is, in the senses identified, futile, moot, not pending, and of no direct relevance to the appeal.

17. There is, too, a further consideration. In order for a point of law to be certified, it is necessary that it involves a point of law of

exceptional public importance, and that it is desirable in the public interest that the person should take such an appeal to the

Supreme Court. In Patchell, this Court laid emphasis on the fact that the requirements are cumulative. In this appeal, and for the

reasons outlined, it has not been shown that the point of law is one of exceptional public importance, in the sense that the point has

frequently arisen in trials, or is pending, in a range of other cases. The public interest requirement has not been satisfied.

18. In the circumstances, the Court will refuse the application.