Court of Criminal Appeal quashed convictions for drug possession due to prosecution's failure to link evidence to defendants.

THE COURT OF CRIMINAL APPEAL

[2014] IECCA 32

163/11, 161/11 & 162/11

Hardiman J

Moriarty J.

Herbert J.

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

and

COMERFORD, BRENNAN AND GRIFFIN

Defendants

APPLICATION FOR RETRIAL

JUDGMENT of the Court delivered the 23rd day of July, 2014 by Hardiman J.

1. The defendants were convicted of offences related to the possession of drugs on the 5th day of July 2011.

2. They each appealed and their appeal was heard on the 31st day of March 2014. Judgment was delivered ex tempore on that day.

The convictions were quashed. The defendants had then served two years and eight months in prison, equivalent to perhaps three

years, or a little more, when remission is taken into account.

3. The present matter before the Court is the application of the Director of Public Prosecutions for a retrial in respect of two of the

accused vis Messrs. Comerford and Griffin. In the case of the remaining defendant, Mr. Brennan, no application for a retrial has been

made.

4. No application for a retrial was made on the day when the conviction was quashed. However, some days later it was indicated by

motion that such an application would be made. It was very strongly argued on the part of the appellants’ that the Court was functus

officio, especially since the Order of the Court of Criminal Appeal which allowed the defendants’ appeal had already been “passed and

perfected”. Notwithstanding the skilful and elaborate argument of Ms. Anne Marie Lawlor B.L., the Court has considered it proper to

address the question of a retrial on the merits.

5. The Court is satisfied from the judges’ recollection of what transpired on 31st March, 2014, from their own notes made on that

occasion and, from page 7 of the transcript of the D.A.R., that it was the intention of this Court to adjourn dealing with the question

of a re-trial to give Senior Counsel for the prosecution an opportunity to take instructions from the D.P.P. As Ms. Gearty, S.C., had no

instructions regarding bail the Court discharged all three accused but without prejudice, in the case of Griffin, to the lawful warrant on

which he was held in custody on another matter (trial presently in progress).

6. The Order made on 31st March, 2014, and perfected, 2nd April, 2014, does not therefore “carry out the intention and express the

meaning of the Court at the time the Order was made”. [In Re Swire 30 Ch. Div. 239 per Bowen L.J.]

7. The Court is satisfied therefore that the matter comes within the second case identified by Romer J. in Ainsworth v. Wilding [1896]

1 Ch. 673 at 677, where an order even though passed and perfected and in the form of a final order may be amended. This occurs

where:

“The Court itself finds that the judgment as drawn up does not correctly state what the Court actually decided and intended: (In Re

Swire 30 Ch. Div. 239). Bowen L.J. in In Re Swire added:- ‘provided the amendment be made without injustice or on terms which

preclude injustice’. Though he refers to ‘judgment’ it is perfectly clear from the context and the reference to In Re Swire that Romer

J. was using ‘judgment’ in the sense of a formal order drawn up following a determination and not the conclusion of the Court and the

reasons given for it.”

8. Ainsworth v. Wilding was followed and applied by the Supreme Court in Belville Holdings Ltd (in Receivership and in Liquidation) v.

Revenue Commissioners [1994] 1 ILRM 29, per Finlay C.J. at 36 & 37.

9. In Lawrie v. Lees [1881] 7 App. Cas. 19 at 35, House of Lords [e] (cited in Thynne v. Thynne [1995] p. 272 at 313 and by Lord

Denning M.R. in R&T Thew Ltd v. Reeves [1981] 2 All E.R. 964 at 975), Lord Penzance held:

“I cannot doubt that under the original powers of the Court, quite independent of any order that is made under the Judicature Act,

every Court has the power to vary its own orders which are drawn up mechanically in the registry or in the office of the Court – to

vary them in such a way as to carry out its own meaning, and where language has been used which is doubtful, to make it plain. I

think that power is inherent in every Court. Speaking of the Courts with which I have been more familiar all my life, the Common Law

Courts, I have no doubt that that can be done, and I should have no doubt that it could also be done by the Court of Chancery.

Moreover, having regard to the orders made under the Judicature Act, I should myself have thought that it would very well have

come under those orders. I recommend your Lordships not to make any variation of this order, but to affirm it as it stands without

prejudice to any such application to the Court below.”

10. This importantly is not an appeal to “inherent jurisdiction” in the wide sense. The C.C.A. is a statutory creation and has no

jurisdiction apart from that given in the statute. It is a power which every court has, and indeed must have, to control its own

procedure within the terms of its jurisdiction, whatever the source: in this sense it is “inherent in every court”. Any court must, as

Cotton L.J. observed (In Re Swire) have jurisdiction over its own records, and power to ensure that its orders, “carry out the

intention and express the meaning of the Court”, (Bowen L.J., idem). As to the same rules applying in Criminal Courts, see R. v. Cross

[1973] 2 All E.R. 920 at 922 c – h, per Lord Widgery C.J. (a case relied upon by counsel for the State).

11. There is no injustice in the C.C.A. now amending the order, by granting liberty to the D.P.P. to apply for a re-trial.

12. The Court is quite satisfied that R v. Blackwood is entirely distinguishable on the facts: also the law is different. Unlike Ms. Purnell,

it is very plain from the D.A.R. transcript that Ms. Gearty was reserving her position on a re-trial until she could get instructions from

the D.P.P. She expressly asked the Court, p. 7, para. 13, – “The Court isn’t specifically making any ruling in relation to a re-trial I take

it?” Hardiman J. replied – “no, indeed, because we have a new application: and the matter so continues”.

13. The Court will accordingly, amend the Order of 31st March, 2014, and hear the application for a re-trial.

Reasons for retrial.

14. In this regard the Court now sets out, in slightly edited form, its own extempore judgment quashing the conviction. We take this

course because it is most important that the present application proceed on the same basis as that on which the appeal was allowed:

“This is the appellants’ appeal against conviction and against the substantial sentences imposed on them for possession

of a quantity of heroin in a park in Palmerstown in the Western suburbs of Dublin some years ago.

The case featured certain difficulties. This was undoubtedly a very serious crime as is reflected in the sentences imposed,

but the evidence was not of the strongest. I say that, on a consideration of the case as it looked a week before the trial

began, and against one of the accused in particular.

Nevertheless the Court is of the view that Mr. Hood, of counsel for Mr. Brennan, is correct when he says that on that

day, a week before the trial began, that is to say the 16th June, there was a complete case against each of the

accused. That is not to say that they would necessarily have been convicted, but there was a case which would have

got the prosecution past the direction stage.

On the 17th June, something major happened which transformed the case. Ms. Gearty S.C. has volunteered the

information that she was freshly briefed for the State in the case at that stage and that the service of a Notice of

Additional Evidence was directed. This Notice of Additional Evidence transformed the case. It alleged that over and above

the relatively small quantity of heroin, a quantity capable of being held in one hand and passed from hand to hand, which

was alleged to have been passed between Mr. Comerford and Mr. Griffin, there was a quantity of heroin, at first I thought

it was nine times as large, but it transpired about fifteen times as large eventually, which was found in the park in a

search the next day. But it would have been found presumably earlier had not the falling of darkness prevented a search

later that night. There was no charge about this larger quantity but it was brought into the case by the Notice of

Additional Evidence. The appeal turns on the purpose for which this was done and the manner in which that purpose was

explained to the jury.

This material served by way of Notice of Additional Evidence and was the subject of immediate objection by the defence.

Accordingly, that issue was tried or was ruled upon by the learned trial judge, his Honour Judge McCartan, on the 23rd

June after the accused had been arraigned but before they had been given in charge to the jury. And the judge held that

this evidence was admissible.

The point was fought with notable vigour by Ms. Gearty, Senior Counsel for the prosecution, who said in relation to this

aspect that the new material was admissible “on first principles”. That is to say it was admissible not because of any

statute or specific rule of law, but simply on first principles.

It did not seem to be disputed that the new evidence was prima facie inadmissible. Why was it inadmissible prima facie?

Because the only the charge against the accused at that stage or indeed at any stage, was possession of the smaller

quantity of heroin, in two cases in the Waterstown Park and in the other case in the Kenilsfort Road which was

immediately adjacent, on the first of the two days to which the evidence related. This evidence about the larger quantity

in the park was therefore on the face of it inadmissible. Why? Because it was not probative of the offence which was

charged, and it was highly prejudicial. It carried with it the considerable risk that the jury would, as the judge indeed

thought possible when he charged them, “think the worst of the defendants” on account of an impressionistic link to the

larger quantity.

Now the basis upon which evidence of this larger cache was said to be admissible, despite its prima facie inadmissibility,

was on the basis of two decisions of the Superior Courts in recent years, that is to say the McNeil and Timmons cases

which have been mentioned in argument, and on the basis of a well known case declarative of the Common Law generally,

the English case of R. v. Boardman, in the 1970s.

Now in the case of Boardman and in the case of McNeil, what was found to be admissible was evidence of previous

actions of the defendant himself, not of somebody else, or of a person unknown, but previous actions of the

defendant. The McNeil case was a case of a person charged with sexual offences against a girl. What was admissible by

way of making the evidence comprehensible as background evidence, was evidence that for a considerable number of

years long prior to the offences with which he was actually charged, the defendant had been engaged in activities which

would be generally described as “grooming” the victim of the offence. As it happens the Boardman case was remarkably

similar except that the victim in that case was a boy, and the background evidence was of actions allegedly done by the

accused towards the boy, and towards or with other boys in a school.

As Ms. Gearty very fairly said in addressing the trial judge the great bulk of the cases where evidence of this kind, so-

called “background” evidence, is admissible have been sexual cases. That may be because it is often necessary in such

cases, either in point of law or in order to make the case credible, to explain why there has been a long delay in

advancing the claim.

However, there is no reason in principle, we think, why such evidence could not be also admitted in a case which was not

of a sexual character. It also has to be said that the law on this subject has been fraught with difficulty for a good many

years. For some time it was thought that evidence of this kind was admissible only if the earlier actions were done in

some manner peculiar to the accused but we think that is, the State say, probably no longer a necessity. It is not

necessary to decide this point in the present case.

But what is entirely novel in this application, as Ms. Gearty has conceded with the greatest candour, is this: there is no

case which the Court is aware of or which the ingenuity of counsel on either side of the case has produced, where a

matter was relied upon as background evidence, necessary for rendering comprehensible the evidence on the lesser

charge, was not the act of the accused himself. That is to say, to take the case of Boardman as an example, if the

evidence sought to be admitted there had been not that the defendant had behaved in a particular manner towards the

boy who was the victim of the offence or towards other boys, but that somebody else had done so, or simply that other

boys had been assaulted and it was not possible to say by whom, the “background” evidence would plainly have been

inadmissible.

It appears to the Court that once a decision was taken to improve the State case by serving additional evidence on the

17th June, that is six days before the trial began, considerable conceptual difficulties arose. And certainly

misunderstanding developed between the prosecution on the one hand, and the learned trial judge on the other, as to the

exact purpose for which the new evidence was admitted.

Ms. Gearty, in a passage we have gone into in some detail in argument and which I will just refer to briefly, made it

perfectly clear to the jury who were trying the case, that the prosecution would not and could not allege any link

between the defendants and the larger cache. In the course of addressing the jury Ms. Gearty said:

“I don’t know, nobody knows who owns these drugs. I can’t suggest and won’t suggest that the prosecution

will prove a link between any of these three accused with that particular cache or stash of drugs”.

She went on to say what the relevant purity was and to remark about the packaging. She actually said, and I think

correctly, that she could not establish a link between the accused and the larger cache. Nevertheless when it came to

the learned trial judge’s time to charge the jury on this point he told them:

“It seems to me the inference can be made that this had something to do with what was going on”.

“This” being what he called the huge amount of heroin found in the field.

He said that prosecution:

“Don’t pretend it can convict a man as to what was found in the park, but what it does say is that it is highly

relevant that the drugs are found there, so close in time and distance to the accused. The type of drugs,

these are all the links that Ms. Ring S.C., [who was counsel for Mr. Brennan at the time], says are not there.

They are there. The type of drugs is the same, the purity is very similar, and I do not know why it mentioned

it but when he was arrested Mr. Brennan was seen to have dirt on his hands”,

The prosecution did not merely say they could not convict any defendant for possession of the larger quantity. They said

they could not “prove a link” between any defendant and the larger quantity. As to the contentions of the prosecution

and the charge of the Judge: either of them may be true or may not be correct but one thing is sure: they both cannot

be correct. The proposition that the cache to which the accused (as the prosecution admitted) could not be linked was

nevertheless corroborative, or relevant, or necessary in the proof of the case against the prisoners is one that cannot be

upheld. The conviction after that direct contradiction is neither safe nor satisfactory.

In the course of the argument, it may be recalled, I had expressed surprise of the fact that neither side, no doubt for

good reasons although different reasons, had referred to any of the numerous text books in this area. I discussed with

Ms. Gearty under what heading one would look it up and when I actually looked it up in the leading Evidence text book

McGrath, I found I was directed to the heading of “Misconduct Evidence”. Now evidence to which a prisoner cannot be

linked cannot be regarded as misconduct evidence against him for that very reason. This evidence is admissible in very

particular circumstances and is no doubt very necessary in those circumstances, but it is important not to extend it

beyond the purposes for which it is properly admissible. The Chief Justice, in giving the judgment that was concurred in by

three other members of the Court in the McNeil case, described the proper bases of admission as relevance and

necessity. It does not appear to the Court, having been referred to the relevant passages by both sides, that the

learned trial judge made any finding of necessity. One might ask, necessity for what? The authorities speak of necessity

in order to comprehend the evidence on the charge actually preferred. It seems to the Court that the directly relevant

evidence was perfectly complete and comprehensible in itself. It does not appear that the “background” evidence can be

relevant unless it can be connected to at least one of the accused.

Now Ms. Gearty, again with commendable frankness on the hearing of the appeal, said that the characterisation of the

background evidence, made by the prosecution to the jury, that it is they could not prove a link between the prisoners or

any of them and the larger cache was simply a mistake. But, she said, it was a mistake that could be overlooked for the

purposes of the safety of the conviction because it actually misstated the position in law in a manner overly favourable to

the accused. The Court thinks that Mr. Green is correct when he said in reply “That the time as of which the issues as to

admissibility must be decided is the time that the issue arose, that is the very beginning of the trial”. There was at that

time nothing to indicate, and it was not then the State’s case, that there was no link between the larger cache of drugs

and on any of the accused. But that had become the position by the end of the case. The clearly enunciated position of

the prosecution, now said to have been mistaken, was never corrected, or ever acknowledged to be mistaken, during the

trial.

The Court has to ask itself on an application of this sort, not whether the accused are guilty or innocent, but whether the

trial, where that question was determined by the jury, was safe and satisfactory. The Court is of the view that it was not

safe and satisfactory because of the pretty radical confusion that arose on this point, and because the prosecution and

the learned trial judge were urging the use of this “background” evidence for different and inconsistent purposes, and in

different and inconsistent ways. The jury was given no clarity on this important point. Highly prejudicial evidence was put

before the jury with no clarity as to how it was to be used.

The Court considers that this point is sufficient to resolve the case. That is not to say there are not other aspects of the

case that, if the first point were not available, might not call for comment. It appears that the case against one of the

accused, Mr. Brennan, was weak in the extreme in the absence of the impugned evidence, and that that evidence viewed

at its most favourable from the prosecution, impugned him only by reference to the mud said to be on his hands. This

observation was allegedly written down by a garda who was not available for the trial because he was in America. His

unavailability was only notified to the defence on the sixth day of the trial. His note was then admitted into evidence. The

Court need say no more than that that sort of development is less than satisfactory, though there might be more to be

said on the topic if it were gone into fully.

In the circumstances the Court considers that the convictions are not safe and satisfactory for reasons to do with the

admission and the subsequent treatment of the evidence as to the larger cache of drugs. This evidence was

unnecessary, apart from any other consideration, once a decision had been taken to try the defendants only in relation to

the smaller quantity. Accordingly, the Court will simply allow the appeal and quash the convictions”.

Effect of the judgment of the 31st day of March, 2014.

14. From the judgment just set out it is clear that the necessity to apply for a retrial was entirely created by the prosecution and

was in no way caused, or contributed to, by the defendants or either of them.

15. The prosecution’s actions, which gave rise to the quashing of the conviction, and accordingly gave rise to the necessity to apply

for a retrial, were in substance the following:

The case passed through the hands of the investigating gardaí, the Director of Public Prosecutions, and through the

District Court. It seemed appropriate at all of these stages to charge the defendants only with possession of a relatively

small quantity of a controlled substance. This limited charge was preferred, notwithstanding that there was available to

the gardaí, to the Director of Public Prosecutions and to prosecuting counsel who presumably settled the indictment,

evidence that there was found in close proximity to where the defendants were arrested a quantity of the same

controlled drug some fifteen times larger than the quantity to which the charges related.

Not merely was no charge brought about this larger quantity in the first instance, but the evidence of its existence and

discovery was not itself included in the Book of Evidence.

On the basis of what counsel for the prosecution told the Court which heard the appeal, new prosecuting counsel was,

for the first time, instructed in this case. This occurred about a week before the trial. It was then decided, for the first

time to add into the Book of Evidence material relating to the finding of the larger quantity of controlled drugs. It is most

important to bear in mind precisely what the prosecution decided to do. They did not decide to bring any charge against

any of the (then three) defendants in relation to this larger quantity. They merely served a Notice of Additional Evidence

relating to it.

The defence objected to the very late service of this additional evidence and said that it was inadmissible. The

prosecution did not say that it was admissible on any specific basis, but on “first principles”. It is very plain that the

admission of such evidence was prejudicial to the defendants and the judge specifically warned the jury that they must

not “think the worse of” the defendants on account of it. Of course, the mere fact that the evidence was prejudicial is

not a criticism. It is the function of properly admissible prosecution evidence to be prejudicial to the defendant’s position.

Prosecuting counsel, in addressing the jury, told them expressly, as set out above, the prosecution could not link the

larger quantity to the defendants or any of them. This raised in a very pointed form the question, why, since the larger

quantity could not be linked to any of the defendants, was the evidence in relation to it advanced at all? The statement

of prosecuting counsel to the jury seems entirely to undermine admissibility of the evidence on the basis that it was

“background” evidence needed to render the rest of the evidence comprehensible. Such “background” evidence always

relates to the act of the defendant which, on the prosecution’s own showing, could not be demonstrated in the present

case.

Conclusion.

16. It thus appears that the necessity to quash the verdict arrived at at this trial arose wholly due to the actions and decisions of

the prosecution, and not at all to those of the defence, who simply had no say in the matter.

17. In particular, the prosecution decided to introduce evidence of the larger cache of drugs without thinking through its significance.

Once it was conceded, as it undoubtedly was, that the prosecution could establish no link between the large cache and any of the

defendants, it was not easy to see what its role was. The judge seemed to take a more sanguine view of whether a link could be

established than the prosecution did in closing. This was a situation replete with scope for confusion. It has often been observed that

litigation “is a two way street”. But in this case the prosecution were entirely responsible for the difficulties and inconsistencies which

afflicted the trial and gave rise to the necessity to quash the conviction.

18. In those circumstances it does not seem fair or appropriate to subject the defendants, who have spent a considerable time in

prison but have now been released, to a second trial, in circumstances where they have not in any way contributed to the necessity

to quash the conviction.

19. Indeed, the difficulties which afflicted the prosecution would not have arisen at all had the defendants been successful in the

objection, which they made in a timely manner, to the introduction of the larger cache by way of additional evidence.