Court of Criminal Appeal allows appeal against conviction for drug possession due to unsafe jury direction on evidence.

COURT OF CRIMINAL APPEAL

Record No. 121/05

McCracken J.

O’Donovan J.

Gilligan J.

BETWEEN

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

and

DANIEL CLEARY

APPLICANT

Judgment of the Court delivered on the 3rd day of March 2006 by Mr Justice McCracken

The applicant was charged with:

1. Possession of a controlled drug for the purpose of selling or otherwise supplying to another contrary to section 15 of the

Misuse of Drugs Act 1977.

2. Possession of a controlled drug contrary to section 3 of the Misuse of Drugs Act 1977.

3. Possession of one or more controlled drugs with aggregate value of €13,000 or more for the purpose of selling or

otherwise supplying to another contrary to section 15A of the Misuse of Drugs Act 1977.

These offences were alleged to have occurred on 19th February 2003 at The Heath, Portlaoise. He pleaded not guilty to

each of the charges.

On 4th March 2005 the applicant was found guilty by a jury on each count and sentenced to five years imprisonment in

respect of count 1, two years imprisonment in respect of count 2 and ten years imprisonment in respect of count 3.

The prosecution case was that the applicant and his uncle Alan Finnamore were observed by Gardai on 18th February 2003

with another unidentified person driving up a lane into a place known as Killenny Wood in The Heath, Portlaoise and

returning from the laneway about five minutes later. The Gardai having observed this trip searched Killenny Wood but

found nothing.

The next day, 19th February 2003, the Gardai staked out the wood and saw the same car being driven by Mr Finnamore

with the applicant in the passenger seat. The evidence of Garda Liam Logan was that he observed the driver and the

passenger of the vehicle getting out and having a look around. He was then asked what did he then observe and his answer,

which is of considerable importance in the case, was:

“I observed the driver lean back into the car, get something out of the car and carry it and place it in the

ditch.”

The evidence of Detective Garda Scully who was also present was that:

“The driver actually looked around as did the passenger and then the driver seemed to get back into the car and he

came back out and he walked over towards the ditch.”

Garda Logan’s statement in the Book of Evidence was also put to him in cross-examination where he said:

“I then observed the driver lean back into the driver’s door. He then came back out of the car and appeared to

carry something into the ditch.”

The two men returned to the car and shortly afterwards drove to the end of the laneway where there was a farmhouse and

they parked there. After about fifteen minutes the Gardai moved in and arrested Mr Finnamore and the applicant and

searched the ditch and found a rucksack containing amphetamine.

There was no direct evidence that the applicant ever handled the rucksack nor that he had any knowledge of the contents of

the rucksack. The charge that the applicant was in possession of the drugs was therefore based purely on circumstantial

evidence. This being so, the issue of whether the applicant was even aware there was a rucksack in the car was of vital

importance.

The first ground of appeal relates to the admission of evidence that the applicant was seen at Killenny Wood on 18th

February, the day before the offence is alleged to have taken place. This court is quite satisfied that the prosecution were

alleging that there was a joint enterprise between the applicant and Mr Finnamore even though those words may not have

been used to the jury. That being so, the court is satisfied that evidence of the actions of the two accused on the previous

day at or near the place where the drugs were found was clearly relevant as tending to show that there had been a joint

enterprise.

After the applicant was arrested, when interviewed by the Gardai he denied that he had been in the laneway on 18th

February. Despite objection by counsel for the applicant the learned trial judge allowed evidence of this denial to go to the

jury. Objection is now taken that he ought not to have done so, or, at the very least, he ought to have warned the jury that

even if they found or believed that he told lies in the course of his interview, that there could be reasons other than the

applicant’s guilt for having told the lies. Counsel for the applicant refers to a passage in a judgment in R. v Lucas [1981]

C.A. 159 at page 162 as follows:

“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly

it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the

truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt

to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family.

Fourthly, the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is

to be corroborated, that is to say by admission or by evidence from an independent witness.”

Counsel for the applicant submits that the effect of this passage is that there was an obligation on the learned trial judge to

warn the jury that the lies do not necessarily indicate guilt. There do not appear to be any Irish authorities requiring or even

recommending such a warning. In any event the context of that case related to corroboration of evidence against the accused

given by an accomplice, which is an entirely different context from the situation in the present case. It is certainly open to a

trial judge, and perhaps in some cases desirable, to make comments of that nature to a jury, but the court is quite satisfied

that this is a matter of discretion for the trial judge and can find no fault in the way in which the matter was dealt with by

him in the present case. It should be added, that no requisition was made at the end of the judge’s charge requesting him to

give such a warning.

The second ground of appeal is that the learned trial judge ought to have given a direction at the close of the prosecution

case. This really centres on the lack of evidence that the applicant was in possession or control of the drugs. There was no

direct evidence connecting the applicant with the drugs and the whole case against the applicant relies on circumstantial

evidence. The learned trial judge rejected the application for a direction on two grounds,. First that the evidence of the

Gardai as to what they actually saw was not contested in cross-examination and therefore the applicant was in effect

conceding that he was present on February 18th, and secondly, following from this, that there was sufficient evidence of a

joint enterprise to go before the jury. This court agrees with the learned trial judge. There was evidence on which the jury

could convict without direct evidence of possession by the applicant on the basis that there was a joint enterprise between

the applicant and Mr Finnamore, and that joint enterprise of course must have included the knowledge that there was a

rucksack containing drugs in the car.

The third ground of appeal centred on the closing speech of counsel for the prosecution, as a result of which the learned trial

judge was invited to withdraw the case from the jury. It was complained that some of his statements could lead the jury to

believe that there was an onus on the applicant to establish certain facts. There is no doubt that counsel for the prosecution

did make comments such as “the corner stone of the case made out by Mr Cleary fails” and “but that is not the case put

forward by Mr Cleary”. These phrases might lead to an inference that it was the applicant who had to make the case.

However in a closing address to a jury, counsel for the prosecution is entitled to comment on the strength and weaknesses

of the evidence and to put forward the prosecution’s case provided that he does so fairly. While some of the phrases used

by counsel for the prosecution may have been unfortunate, there is little doubt that the learned trial judge could deal with

any suggestion that there might be an onus on the applicant in his charge to the jury. Indeed, in the present case, the learned

trial judge did quite clearly instruct the jury that at no time was there any onus on the applicant.

There is, however, one aspect of counsel for the prosecution’s closing address which causes concern. He said:-

“We then have Mr Finnamore described as reaching into the car – not into the boot of the car – not into the

back seat of the car – but in through the driver’s door to an area, I think was described, and you will have

heard yourselves, an area in the vicinity of between the drivers and passenger seats, that sort of description”.

This comment was not in fact adverted to by counsel for the applicant in applying to have the jury discharged. However,

when dealing with the matter in his address to the jury, counsel for the applicant, in fact slightly incorrectly, quoted

Detective Garda Logan as saying:-

“I then observed the driver lean back to the driver’s door. He then came back out of the car, and appeared to

carry something into the ditch.”

The unfortunate matter in this case is not so much what counsel for the prosecution said, but what the judge subsequently

said in his charge to the jury. He said:-

“So you take a common sense view of all the evidence, and circumstantial evidence, and you consider, for

instance, the position of this bag within the car. Now, Mr Buckley said in his closing speech that it was in the

back seat of the car, behind Mr Finnamore’s seat. But there was not evidence about that. In fact it was the

other way around, that it was somewhere in the front of the car, rather than the back of the car. However that

is a matter for you.”

No objection was made at the time to this comment by the learned trial judge, nor was any requisition raised. However, the

actual evidence given in this regard is set out in the earlier part of this judgment and there is no doubt that, while the

evidence does not positively establish that the rucksack was in the back of the car, it certainly does not establish that it was

“somewhere in the front of the car” as stated by the learned trial judge.

The court always looks with some disfavour on a point being taken on appeal in relation to a judge’s charge which was not

the subject matter of a requisition. However that does not mean that such a point may never be taken where the court

considers that there is a danger that a conviction may be unsafe.

There are many cases in which a trial judge may make an error in his charge in relation to a specific piece of evidence, and

such an error certainly does not always give rise to a successful appeal. However, in the present case, the learned trial judge

not only was in error in reciting the evidence, but he also wrongly contradicted a submission in the closing address of

counsel for the applicant. An absolutely essential element in the applicant’s defence was that the prosecution had not proved

that he was aware either that the rucksack was in the car or that the rucksack contained drugs. The position of the rucksack

in the car was absolutely vital to the first point and the court considers that the learned trial judge’s remarks could have led

the jury to the false belief that the rucksack had been in the front of the car and therefore, as the applicant was sitting in the

front seat of the car, he must have been aware that the rucksack was in the car. As the case depends almost entirely on

circumstantial evidence, this is a circumstance which could have been the deciding factor in the jury’s decision to convict the

applicant.

In those circumstances, the court considers that the conviction was unsafe as it may have been based on a false belief by the

jury, and accordingly the court will grant leave to appeal and will allow the appeal and direct a retrial of the applicant.

DPP v Cleary