Court of Criminal Appeal allows appeal on reversed burden of proof direction for drug possession charges.

THE COURT OF CRIMINAL APPEAL

[2009 No. 25]

[2009 No. 26]

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR

OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

KIERAN SMYTH SENIOR AND KIERAN SMYTH JUNIOR

APPLICANTS

Finnegan J.

Charleton J.

McMahon J.

Judgment of the Court delivered on the 18th of May 2010 by Mr. Justice Charleton

1. This appeal concerns the nature of a reversed burden of proof in a charge of possession of controlled drugs. The Court also

suggests the appropriate direction to a jury by a trial judge in that regard. Both applicants were charged with offences contrary to s.

15 of the Misuse of Drugs Act 1977, as amended, alleging that on the 20th August, 2007, at Béal an Átha, Falcarragh in the county of

Donegal, they were in possession of cannabis for the purpose of unlawful sale or supply, and that they were in possession of cannabis

worth more than €13,000 for the purpose of unlawful sale or supply. The men were also charged with simple possession. They were

tried before Letterkenny Circuit Criminal Court, His Honour Judge John O’Hagan presiding, on dates between the 3rd and the 19th June

2008. Mr. Smyth Junior was convicted unanimously on all three counts. Mr. Smyth Senior was convicted by a majority verdict on the

three counts.

Ground of Appeal

2. Only one ground of appeal was argued. It was that in addressing the jury, the learned trial judge misdirected them in their

consideration of the defence to possession which is set out in section 29(2) of the Misuse of Drugs Act, 1977. This, as to the material

part reads:

“In any such proceedings in which it is proved that the defendant had in his possession a controlled drug… it shall be a

defence to prove that:-

he did not know and had no reasonable grounds for suspecting –

that what he had in his possession was a controlled drug… or

that he was in possession of a controlled drug.”

3. Apart from considering the direction to the jury of the learned trial judge, the Court would wish to add some brief comments as to

the form of direction which should be given in such cases.

Background

4. During the course of a routine search in the DHL compound in Dublin Airport in August, 2007, five substantial parcels were found to

contain cannabis. The consignee of the drugs was named, and a telephone number was given. The gardaí took possession of the

parcels. Using the information furnished to them they made contact with an individual by telephone. A rendezvous was arranged.

There, the gardaí handed the parcels over to the two applicants. They were shortly after that arrested and charged and, as we

know, later tried and convicted.

5. The defence case, as revealed in statements which the applicants made to the gardaí, and in the evidence at the trial of one of

them, was that a friend had contacted Mr Smyth junior, the second applicant, and asked him to collect parcels containing computer

parts. He was instructed to use a new mobile phone and to use an assumed name. Not being able to drive, as he claimed, Mr Smyth

junior had asked his father Mr Smyth senior, the first applicant, to drive a van and help him with the parcels. For this, according to

themselves, they were to receive a sum of around €300.

6. The evidence presented at the trial clearly proved that both applicants had taken possession of the parcels and that these

contained cannabis of the herbal kind. Whereas it might be apparent to a trained police dog that the contents of the parcels were

cannabis, as proven, to any ordinary individual, without prior knowledge, they would appear as just packages of a particular weight

and size.

7. At the trial, apart from the facts previously indicated, other evidence was led, properly in the view of the Court, concerning what

the gardaí had detected as to the movements and behaviour of the applicants prior to their arrest. From this, the prosecution were

arguing that an inference could be drawn against the accused men of knowledge as to what was within the parcels. Under section

29(1) of the Misuse of Drugs Act, 1977, as amended, it is of no legal account that an accused person was of the view that a

different controlled drug to cannabis, or as may be, was what he intended to possess. In other words, it is not a defence that the

accused thought that he was in possession of heroin, whereas in fact it was cocaine.

The Charge

8. In opening the case, counsel for the prosecution scrupulously outlined, in concise form, the relevant legal principles applicable

together with a summary of the facts. She indicated that the prosecution bore the burden of proving beyond reasonable doubt

possession of the controlled drug, as charged, as against each accused. She next said that the burden of proof then shifted on to

each accused to show that they did not know, and had no reasonable grounds for suspecting that what they had in their possession

was a controlled drug. This burden, counsel outlined, was to be discharged by each accused proving that defence on the balance of

probabilities.

9. The Court comments that on the state of the law as it was then understood, this explanation by counsel for the prosecution as to

the reversed burden of proof was correct. In particular, it accorded with the judgment of this court in The People (D.P.P.) v. Byrne

Healy and Kelleher [1998] 2 I.R. 417. It was not necessary, counsel for the prosecution correctly told the jury, in relation to the

charge contrary to section 15A of the Misuse of Drugs Act 1977 as inserted by s.4 of the Criminal Justice Act 1999, for the

prosecution to prove that the accused knew or ought to have known that the market value of the controlled drug, or the aggregate

of the market values of the controlled drugs in the five packages, amounted to €13,000 or more; see D.P.P. v. Ronan Power [2007]

IESC 31 (unreported, Supreme Court, 26 July, 2007).

10. As this Court held in The People (D.P.P.) v. Byrne Healy and Kellegher, [1998] 2 I.R. 417, s. 29(2)(a) was intended to avoid the

injustice that might arise out of a person being convicted solely because he is in possession of drugs although it was clear that he did

not know, and had no reason to suspect, that he had drugs in his possession. The possibility of such a conviction arose from earlier

English authorities that the Court analysed in that judgment. These authorities were considered in that judgment. Innocent people

may, from time to time, take into their custody a package without having reason to suspect that it might contain a controlled drug.

The circumstances out of which that possession originates may lead to an inference that they knew or that they suspected that they

were engaged to carry, or otherwise possess, a controlled drug. It is perhaps the private nature of the motivation or belief that most

people have in handling or possessing a closed packet that led the Oireachtas to reverse the burden of proof. The accused, facing a

charge of possession of a controlled drug, must make out the defence set out in s. 29(2)(a) of the Act of 1977.

11. In criminal proceedings the burden of proving the charge is on the prosecution and that burden must be discharged by proof

beyond reasonable doubt. Where any element of proof is reversed, it is not the law that the accused bears the burden of proving the

non-existence of the relevant element of the offence beyond reasonable doubt. The Court is satisfied that it was not the intention of

the learned trial judge to so indicate to the jury trying the applicants. In the result, however, a real issue has arisen as to whether

that occurred in his charge to the jury.

12. In dealing with the general directions, the learned trial judge referred to the presumption of innocence and stated that the burden

of proving the guilt of the accused rested with the prosecution. This burden, notwithstanding the relevant statutory provision, he said

never shifted to the defence. That was an error. He referred to s. 29(2)(a) of the Misuse of Drugs Act 1977, and correctly

characterised it as “the lynchpin” of the case. He correctly analysed the nature of the defence set out under that section as being

subjective: it was what each of the applicants perceived, in all the circumstances of the case, that they had in their possession

which was in issue. He then continued:-

“Now you should look at each of them individually. You can’t just say because one might have more evidence against him

than the other – that’s a matter for you to work out. You must look at each of the accused. If you believe, for example,

that Mr. Smyth Senior, in your opinion knew nothing about this, if you’re satisfied about that beyond reasonable doubt, or

if you have a doubt, then you must give him the benefit of that and, similarly, you must look at Mr. Smyth Junior and

apply the same principles”.

13. It was no part of the reversed burden carried by either of the applicants, as accused, for them to prove beyond reasonable doubt

that they did not know and had no reasonable grounds for suspecting that what was in their possession was a controlled drug. The

direction was therefore in error. There is also danger that the jury perceived the directions received from the learned trial judge to be

inconsistent. A court should not give two inconsistent legal directions to a jury on a fundamental principle; such as the definition of

an offence or what elements make it a defence in criminal law; The People (D.P.P.) v. Noonan [1998] 2 I.R. 439 at 445. The Court

wishes to briefly offer assistance as to the correct direction to be given by trial judges in future as to the reversed burden of proof

set out in s. 29 of the Misuse of Drugs Act 1977.

Correct Direction

14. A burden of proof on the accused, as set out in s. 29 of the Misuse of Drugs Act 1977, as amended, is not unique as to its form in

criminal statutes. In making these comments, however, the Court confines itself to that specific provision. It is not, for instance,

making any wider declaration as to how any particular reversed burden of proof is to be approached. In particular, it makes no

comment on the historical feature of the insanity defence whereby it has always been the law that those who plead the defence

must prove clearly that they did not know the nature and quality of their act, or that they did not know that what they were doing

was morally wrong or that they could not control their actions. The re-statement of the law in s. 4 of the Criminal Law (Insanity) Act,

2006 as to insanity, and the introduction of the defence of diminished responsibility in s. 6 of that Act, carries with it a burden of

proof on the defence which is discharged on the balance of probabilities. The prosecution carry the entire burden of proving the

commission of the crime. Sound reasons of policy may indicate that a defence should be proven by the accused as a probability. One

reason arises in relation to the special defence of insanity. A person who is found to have committed an intentional killing, for

instance, and who might make out a plea of insanity on the basis of merely raising a reasonable doubt would, if not insane, be in

danger of being discharged almost immediately by the Central Mental Hospital. A decision to reverse on to the accused an element of

the proof of the commission of a crime that might normally be expected to be borne by the prosecution, or to set up a special

defence such as insanity, is a matter of legislative competence. It is for the Oireachtas, in each case, to set the parameters of proof

in a criminal charge; to decide whether there should be a reversed burden of proof in respect of any element of a crime; and to

indicate expressly, or by implication, the nature of the burden of proof that is to be discharged by the defence.

15. How the burden of proof is borne depends upon the substantive law. At a criminal trial, the burden of proof is borne by the

prosecution in respect of every issue; except on those issues on which the burden of proof is cast on the accused by statute. This

burden is not to be confused with the burden of adducing evidence. Criminal trials would be chaotic were the accused entitled to run

any potential defence which might be hypothetically open on the facts of the prosecution case. The accused must engage with the

evidence. Where the defence of the accused to a murder charge is that he was defending himself, or that he was provoked, or that

he was acting in an automatous state, he carries the burden of adducing evidence on those issues in order to allow that defence to

be argued by defence counsel in a closing submission to the jury. As it was put by Devlin J. in Hill v. Baxter, [1958] 1 Q.B. 277 at

284:-

“It would be quite unreasonable to allow the defence to submit at the end of the prosecution’s case that the Crown had

not proved affirmatively and beyond a reasonable doubt that the accused was at the time of the crime sober, or not

sleep walking or not in a trance or black out.”

16. Consequently, there must be some evidence to which the accused can point whereby a particular defence to crime becomes

open. This is not a legal burden of proof; it is merely the burden of adducing sufficient evidence to allow a defence to be argued in

closing and then included as part of the relevant legal directions in the charge of the trial judge.

17. A legal burden of proof is different. This places upon the party bearing that legal burden, the obligation to prove the issue that he

is required to prove. The standard of proof may vary. As already, mentioned, policy reasons have dictated that the defences of

insanity and diminished responsibility should be clearly proven by the accused. For these defences, the burden of proof is for the

accused to show that he has discharged the burden of proof by showing, as a probability, that he acted within the terms of one or

other of those defences. The defence of insanity, as with other defences, is not, however, part of the elements of proof borne by the

prosecution in establishing the crime. It is not incumbent on the prosecution to prove that in killing the deceased that the accused

was not insane. It is for the accused to raise that defence and to prove it.

18. Much of the argument before the Court was centred on whether a reversed burden of proof could be compatible with Article 6(2)

of the European Convention on Human Rights and Fundamental Freedoms. In particular, the Court notes that in R. v. Lambert [2002]

A.C. 545 the House of Lords commented on this issue. The Court also notes that in R. v. Barr [2005] EWCA Crim 1764 the Court of

Appeal quashed a conviction for possession of cocaine where the reversal of a burden of proof was in issue. The accused admitted

passing a bag to another person but claimed that he did not know what it contained. Section 28 of the United Kingdom Misuse of

Drugs Act, 1971 contains a defence section cast in similar terms to s. 29 of the Misuse of Drugs Act 1977, as amended, in this

jurisdiction. The modern direction for the neighbouring kingdom appears to be as stated by the High Court of Justiciary in Henvey v.

H.M. Advocate, [2005] S.L.T. 384.

19. The Court considers, however, that the proper construction of the burden of proof in s. 29 of the Misuse of Drugs Act, 1977, as

amended, and the correct direction to a jury hearing such a charge, is to be derived from Article 38.1 of the Constitution. This

provides:-

“No person shall be tried on any criminal charge save in due in course of law”.

20. The fundamental principle of our criminal justice system is that an accused should not be convicted unless it is proven beyond

reasonable doubt that the accused committed the offence. The legal presumption that the accused is innocent, until his guilt is

proven to that standard, operates to ensure objectivity within the system. It is a matter for the Oireachtas to decide whether on a

particular element of the offence an evidential burden of proof should be cast on an accused person. Of itself, this does not infringe

the constitutional principle that the accused should be presumed to be innocent until found guilty. Reasons of policy may perhaps

require that any reversed element of proof cast on the accused should be discharged as a probability. That should either be stated in

the legislation or be a matter of necessary inference therefrom. The construction of a criminal statute requires the Court to presume

that the core elements of an offence must be proven beyond reasonable doubt; otherwise the accused must be acquitted. A special

defence, beyond the core elements of the offence, may carry a different burden; insanity and diminished responsibility are examples

of such a defence which casts a probability burden on the accused. Where, however, in relation to an element of the offence itself,

as opposed to a defence, a burden is cast upon the accused, the necessary inference that the accused must discharge that burden

on the balance of probability is not easily made. The Court notes that bearing the burden of proving a defence as a probability could

have the effect that in respect of an element of the offence an accused person might raise a doubt as to his guilt, but not establish

it as a probability. This might lead to a situation where the charge was not proven as to each element of the offence beyond

reasonable doubt, but nonetheless the accused could be convicted. That would not be right. Proof of a guilty mind is integral to proof

of a true criminal offence, in distinction to a regulatory offence. In s. 29 of the Misuse of Drugs Act 1977, as amended, the normal

burden of proving the mental element of possession of a controlled drug is removed from the prosecution and the accused is required

to prove that it did not exist.

21. In consequence, the Court considers that an evidential burden of proof is cast on the accused by s. 29 of the Misuse of Drugs

Act 1977, as amended, which is discharged when the accused proves the existence of a reasonable doubt that he did not know, and

had no reasonable ground for suspecting that what he had in his possession was a controlled drug. This is not a burden merely of

adducing evidence. It is legal burden discharged on the lowest standard of proof, namely that of proving a reasonable doubt. This has

consequences for the trial of charges based on possession of a controlled drug. The prosecution must prove possession as against

the accused. They must also prove that the substance in question was a controlled drug as defined in the Misuse of Drugs Act 1977,

as amended. Regulations may need to be proven by handing in an official copy of them. These elements must be proven by the

prosecution beyond all reasonable doubt. A burden is then cast on the accused to make out a reasonable doubt in accordance with s.

29. This may be done by pointing to a weakness in the prosecution case, by reference to a statement made to the gardaí, or by the

accused himself giving evidence. Because this is a legal burden of proof, the decisions as to what evidence on that issue will be

sufficient so as to raise a reasonable doubt are for the accused. He must decide if he has put sufficient evidence by way of proof to

raise a reasonable doubt before the jury. This carries practical consequences. Once the prosecution have proved possession of a

controlled drug, the accused cannot make an application of no case to answer at the close of the prosecution case based upon any

failure on their part to prove that he did not know, and had no reasonable ground for suspecting that what he had in his possession

was a controlled drug. In terms of making out the defence on the standard of showing a reasonable doubt, it is a decision for the

accused as to whether he gives evidence or not. The prosecution may argue in closing submissions to the jury that the particular

defence is not made out so as to show a reasonable doubt.

22. In directing the jury on this issue, trial judges should in future, in the view of the Court, give the ordinary direction as to the

burden and standard and proof and the presumption of innocence. In stating the burden and standard of proof, however, a trial judge

should point out that the prosecution are obliged to prove the elements of possession of the substance, and that the substance is a

controlled drug, beyond reasonable doubt. A trial judge should then tell the jury that the burden of proof shifts to the defence to

prove the existence of a reasonable doubt that the accused did not know and had no reasonable ground for suspecting that what he

had in his possession was a controlled drug. It should be clearly stated that this burden cast on the accused is discharged if the

defence prove a reasonable doubt, and no more than that, on that issue.

23. Finally, we should add that there is nothing improper in the prosecution seeking in their case to show evidence whereby that

defence, of not knowing or having no reason to believe that what the accused had in their possession was a controlled drug, could be

argued by them not to have been made out by the accused. The elements of this case provide an illustration of such prosecution

evidence. They relate to the manner of the discovery of the packet, how the gardaí made the rendezvous, what the gardaí knew of

the movements and contacts of the accused prior to the possession of the controlled drug and how they had responded on being

confronted with relevant evidence; see The People (D.P.P.) v. Lawless (Unreported, Court of Criminal Appeal, 28th November, 1985).

Result

24. For the reasons given, the Court will treat the application for leave to appeal as being the appeal, allow the appeal, and order a

re-trial of both applicants.