Director of Public Prosecutions v DT

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr Justice Peter Charleton
• Judgment Date: 04 June 2025
• Neutral Citation: [2025] IESC 25
• Year: 2025
• Docket Number: Supreme Court appeal number: S:AP:IE:2025:000166 Dublin Circuit Criminal Court bill number: DUDP1022/2023 [2024] IECA 252

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

DT

Accused/Appellant

[2025] IESC 25

Dunne J

Charleton J

O'Malley J

Murray J

Donnelly J

Supreme Court appeal number: S:AP:IE:2025:000166

Court of Appeal record number: 2024/ 133

Dublin Circuit Criminal Court bill number: DUDP1022/2023

[2024] IECA 252

An Chúirt Uachtarach

The Supreme Court

Drug offences – Dismissal of charges – Criminal Procedure Act 1967 s. 4E – Appellant seeking dismissal of charges – Whether there was a rational prospect that the appellant could be convicted on the charges

Facts: The accused/appellant (DT), on 18 November 2022, and two others present in a duplex apartment in Dublin were charged and sent forward for trial. The charges may be divided based on the location and nature of the evidence. Counts 1 to 5 related to the possession by DT of drugs found in the kitchen/living room area including cannabis-infused gummy bears and bags of cannabis leaf. Counts 6 to 10 related to the possession and cultivation of cannabis in two grow areas located adjacent to the kitchen/living room area in the hot press and downstairs opposite the bedroom of the official tenant (EH). DT applied to Judge Nolan on 10 April 2024 to dismiss all ten charges against him under s. 4E of the Criminal Procedure Act 1967. The trial judge dismissed counts 6 to 10 but not counts 1 to 5. The prosecutor/respondent, the Director of Public Prosecutions, appealed the trial judge's dismissal of counts 6 to 10, claiming that the decision was wrong in law. The Court of Appeal (Edwards, McCarthy, MacGrath JJ), ruled that the prosecution’s appeal should be allowed: [2024] IECA 252. DT sought leave to appeal the Court of Appeal’s decision to the Supreme Court. On 4 February 2025, the Supreme Court granted leave: [2025] IESCDET 14. A number of cases were cited by DT asserting a fundamental deficiency in any safe proof of possession of contraband and of cultivation arising from the circumstances. Regarding the s 4E application, DT argued that the court must determine whether there is a sufficient case to put the accused on trial.

Held by the Court that the following factors established the rational prospect that the accused could be convicted on the charges related to the kitchen/living room area: the presence of the accused in the room; the accoutrements of production; the dried cannabis leaf in transparent packets; his personal effects, phone and passport in the room; and the absence of an account as to why he was there. As regards the grow locations and the cultivation areas, the Court held that the above factors also applied, but in addition, a potential connection with a common design to possess the growing cannabis plants and to cultivate same, included: the secateurs in the kitchen/living room area; the argued-for continuity in the production line from live to dried plant to infusion in jelly; the use of heaters, lighting, insulation etc. in the grow locations to speed growth; and the absence of any explanation as to why he was in the flat. The Court held that this did not mean that there was enough evidence on either of the grouping of charges around the kitchen/living room area, or in respect of the grow rooms, that a jury would be convinced as a matter of fact, beyond reasonable doubt, that the accused was part of a common design to possess in respect of three distinct areas and to cultivate the two rooms of plants in addition; but the alleged evidence partly of circumstances and partly by reason of a lack of an explanation as to why he was there, enabled a jury to consider all the charges.

The Court affirmed the judgment and order of the Court of Appeal.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Wednesday 4 June 2025

1 When the legislature deems the possession of certain articles and substances a criminal offence, the facts required to prove the core issue of possession of that contraband is the central issue on this appeal. As a concept across many areas of criminal law, possession is not given a central definition, despite its applicability to such key prohibitions as controlled drugs, explosives, firearms and offensive weapons. Hence, this judgment seeks to outline the conceptual basis of possession and its elements. Often, possession is to be deduced from facts and circumstances, and in this regard, sections 18 and 19 of the Criminal Justice Act 1984 enable inferences adverse to an accused to be drawn in particular circumstances and following a prescribed procedure. Where possession is the offence, the applicability of a provision enabling an adverse inference from possession may be a circularity that undermines the duty of the prosecution to prove the core of its case. Here, the possession is alleged to be of drugs and the circumstances that the prosecution propose to prove against the accused DT have given rise to a dismissal of some of those charges and thereafter restoration by the Court of Appeal. The accused DT contends that none of the charges against him are supported by sufficient fact enabling a safe inference of possession, while the prosecution assert their soundness as enabling a jury to convict.

Caution

2 The summary which follows represents the facts proposed by the prosecution and not established facts. This Court is making no ruling on any facts presented. The prosecution will attempt to demonstrate its case, bearing as it does the burden of proof, and the Court's task is to define the circumstances in which facts and circumstances may be taken as sufficient to enable a jury to find that the accused was in possession of contraband. Whether a jury so decides or not is a matter for shrewd assessment by them on the basis of a common-sense appraisal of the facts as they emerge at trial. It cannot be predicted as to how any fact will be assessed by the jury or as to what inference may be drawn from fact.

3 The procedural history of this matter is such that on being returned for trial, the accused DT applied to the Dublin Circuit Criminal Court under s 4E of the Criminal Procedure Act 1967, to dismiss all charges against him. Of the 10 charges, 5 were dismissed as untenable by Judge Martin Nolan, while 5 remained and in the Court of Appeal, all charges were restored. The detail of that follows.

Background allegations

4 On 14 November 2022, An Garda Síochána obtained a warrant to search an underground car park in Dublin. The search was conducted on the morning of 18 November 2022. During the course of this search, the Gardaí received information leading to an application for and grant of a further warrant on the same day to search a duplex apartment in the same building. This search warrant was executed later that same morning. Upon entering the apartment upstairs, they found DT and two other individuals, one of whom was EH who was apparently living there as the official tenant. There is no evidence of the exact positions of the individuals that were in the apartment when Gardaí arrived. One team of Gardaí entered the apartment and then withdrew and were replaced by members of the drug squad. It is on the observations of the latter that the prosecution depends.

5 The Gardaí observed several items in the apartment that are asserted by the prosecution as suggesting that the apartment was being used to produce green-coloured cannabis-infused sweets, resembling gummy bears, of which there were more than 1,400 in the kitchen-living area. The layout of the apartment is that there is a front door leading to stairs up to a kitchen-living area and a separate hot-press. At entry level there is a bedroom to the left, occupied by EH and with his personal effects obviously present. On the other side of the stairway is another room that could be used as a bedroom but which contained a number of cannabis plants.

6 Apart from kitchen utensils and seating, the kitchen-living area contained (gummy-bear shaped) moulds, syringes, food colouring, and flavourings, which the prosecution propose were to be used for the production of cannabis-infused sweets. The photographs show a trí na chéile disposition here, including a pot on the stovetop which contained a green gelatinous substance and the serried ranks of gummy bears that were similar in colour perhaps to the gelatinous substance found on the stovetop. Also in that room were some transparent bags of dried cannabis leaf and a secateurs.

7 The total number of gummy bears found in the apartment amounted to 4,331 with a street value asserted of approximately €43,000, based on a sale value of €10 each. These gummy bears were the subject of Counts 1–3 on the indictment, which relate to possession and trafficking of cannabis in the form of these sweets. Additionally, the bags of dried cannabis plants found in the kitchen-living room area are asserted to be valued at approximately €4,000 to €5,000. These prepared cannabis leaf items were the subject of Counts 4 and 5. Two mobile phones were seized by Gardaí in that area. One phone had a black cover, and the other had a clear cover. The phone with the clear cover contained a bank card bearing DT's name. This was found on the radiator in the kitchen-living room of the apartment. Although DT was not a named resident of the apartment, his passport was also found on an extractor fan above the stovetop where the gelatinous material was apparently cooking.

8 Gardaí discovered cash in two separate batches, one amounting to €12,000, and the other to €2,300. That was in EH's bedroom, it seems. Additionally, a quantity of cocaine was recovered from the apartment. DT has not been charged in relation to either that money or the cocaine. There were two grow locations in the apartment, where cannabis was being cultivated. The upstairs grow location was located in the small hot-press area adjacent to the kitchen-living room area and contained 12...