Court of Criminal Appeal dismisses appeal against drug possession conviction based on circumstantial evidence of joint enterprise.

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.