Director of Public Prosecutions (respondent ) v Alphonsus Connolly
| Jurisdiction | Ireland |
| Judge | Mr. Justice Fennelly |
| Judgment Date | 15 February 2011 |
| Neutral Citation | [2011] IESC 6 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 478 of 2009] |
| Date | 15 February 2011 |
[2011] IESC 6
THE SUPREME COURT
Murray C.J.
Hardiman J.
Fennelly J.
Macken J.
Finnegan J.
AND
COURTS OF JUSTICE ACT 1924 S29
RSC O. 58 r25(3)
DPP v FINNAMORE 2009 1 IR 153 2008/18/3743 2008 IECCA 99
CRIMINAL LAW
Evidence
Burden of proof - Drugs - Possession of controlled drugs - Market value of drugs - Sample testing of packages for presence of drugs - Qualitative analysis only - Whether amount of controlled substance might be established by oral evidence of expert as to range within which amounts of controlled substance generally fell - People (DPP) v Finnamore [2008] IECCA 99, [2009] 1 IR 253 distinguished - Misuse of Drugs Act 1977 (No 12), ss 15 and 27 - Appeal allowed; no retrial ordered (478/2009 - SC - 15/11/2011) [2011] IESC 6
People (DPP) v Connolly
Facts The appellant pleaded guilty to possession of controlled drugs but not guilty to possession of drugs for sale or supply. He was convicted and on seeking leave to appeal in the Court of Criminal Appeal. He contended the manner which the prosecution placed a value on the drugs and put forward the ground that the trial judge erred in law in refusing a direction to withdraw the case from the jury. The Court of Criminal Appeal refused his application but the court certified a question to the Supreme Court namely:
"In a prosecution pursuant to section 15A of the Misuse of Drugs Act 1977, for the purpose of ascertaining the amount of a controlled substance present in a powder in a sealed container or in a number of such containers proven by expert evidence to contain that particular controlled substance, may the amount of that controlled substance present in the powder be established by the oral evidence of an expert as to the range within which amounts of that controlled substance in other powders generally fell and, if the answer is in the affirmative, must the prosecution disclose to the defense a statement or a report by that expert setting out the facts upon which her or his opinion as to that range is based?"
Held by the Supreme Court (Murray CJ; Hardiman; Fennelly; Macken and Finnegan JJ) in allowing the appeal and not directing a new trial:
On examination of the expert evidence given at the trial on the value of the drugs the forensic scientist conducted tests on 5 of the 10 bags containing drugs. She gave the level of amphetamines as "between that is maybe 10% and 40%". The court was concerned with the word "maybe" and its intended meaning. She also used the word "generally". She did not say what percentage of cases fell under "generally". DPP v Finnamore referred to and distinguished.
In the normal usage of the word "generally" it leaves open the very real possibility that there are cases outside that range. It cannot be assumed that the forensic witness evidence meant any more than that there was probably 10% and 40%" amphetamine present. "Probability" is not enough.
In this case it was not sufficient for the prosecution to prove the mere presence of amphetamine and to rely on an unexplained range of values which generally applies without evidence which addressed the extent to which there are cases outside the range. This left a gap in the prosecution evidence. The case should have been withdrawn from the jury.
Reporter: BD
1. The appellant was charged, at the Circuit Criminal Court in November 2007, with two counts of possession of controlled drugs, namely amphetamines, for sale or supply at Kill West, Kill County Kildare on 16 th November 2004. The first, the section 15A count, alleged that the drugs had a market value of €13,000 or more. In the second count, possession of the same drugs for sale or supply was charged but no value was alleged. The appellant pleaded guilty on arraignment to the latter count but contested the first. The only real issue was as to the adequacy of proof of the value of the drugs, which is the issue before the Court on this appeal. The jury, sitting with his Honour Judge O'Shea, convicted the appellant. The appellant was sentenced to ten years imprisonment on this count and to four years imprisonment to run concurrently on count number 2.
2. By the first count, the prosecution alleged that the appellant had had in his possession for the purpose of sale or supply a quantity of amphetamines with a market value of €13,000 or more contrary to section 15A (as inserted by section 4 of the Criminal Justice Act, 1999) and section 27 (as amended by section 5 of the Criminal Justice Act, 1999) of the Misuse of Drugs Act, 1977. This offence attracts a minimum presumptive sentence of ten years' imprisonment. Hence, the interest of the appellant in contesting the value of the drugs.
3. As the appellant puts it, as a result of his plea of guilty to the second count, the only live issue which the jury had to consider was the question of the value of the drugs concerned. Counsel for the appellant submitted at trial that the proof of value of the drugs proffered by the prosecution was insufficient and that he had no case to answer. The learned trial judge refused his application for a direction.
4. The appellant appealed against his conviction to the Court of Criminal Appeal on the single ground that:-
"The learned trial judge erred in fact and in law in not withdrawing the case from the jury on an application at the close of the Prosecution case of no case to answer, made on the basis that there was no evidence on which a properly directed jury could come to the conclusion and be satisfied beyond a reasonable doubt that the market value of the drugs concerned was €13,000 or more."
5. The Court of Criminal Appeal concluded that there had been no error of law on the part of the learned trial judge in failing to withdraw the case from the jury and that there was sufficient evidence on which a jury properly directed was entitled to come to the required conclusion with regard to the market value of the drugs, found in the possession of the appellant. The Court dismissed the application for leave to appeal.
6. The Court of Criminal Appeal, pursuant to section 29 of the Courts of Justice Act, 1929, as substituted by section 22 of the Criminal Justice Act, 2006, certified the following as a question of law of exceptional importance:
"In a prosecution pursuant to section 15A of the Misuse of Drugs Act 1977, for the purpose of ascertaining the amount of a controlled substance present in a powder in a sealed container or in a number of such containers proven by expert evidence to contain that particular controlled substance, may the amount of that controlled substance present in the powder be established by the oral evidence of an expert as to the range within which amounts of that controlled substance in other powders generally fell and, if the answer is in the affirmative, must the prosecution disclose to the defence a statement or a report by that expert setting out the facts upon which her or his opinion as to that range is based?"
7. In addition to the foregoing ground, the appellant was granted leave by this Court pursuant to Order 58, Rule 25(3) of the Rules of the Superior Courts to argue the single ground of appeal advanced before the Court of Criminal Appeal as set out above, effectively that the learned trial judge erred in not withdrawing the case from the jury.
8. These are not separate grounds. The certified question relates to the sufficiency of proof of value of the drugs and, in turn, to the ground on which the appellant submits that the case ought to have been withdrawn from the jury.
9. On 16 th November 2004 members of the Garda National Bureau of Criminal investigation, acting on confidential information received, stopped a motor vehicle on the Naas Road near Kill. The driver was the appellant. He was alone in the vehicle. When asked if he knew why he had been stopped, he replied that there was "stuff in the car." Asked what the stuff was, he said he thought it was "speed," adding "drugs, you know." In evidence, it was established that this was slang for amphetamines. He said there were ten kilograms of drugs on the back seat. During later interview, when detained pursuant to the Criminal Justice Act, 1984, he signed a note of these statements.
10. The gardaí took possession of the drugs, which were contained in a red Marks & Spencer shopping bag, which, in turn contained zip-lock bags filled with white powder. In total, they weighed 9.717 kilograms.
11. At trial, Detective Garda Grennan gave evidence estimating the value of the drugs at €145,755, using a price of €15,000 per kilo. He assumed that the each of the packs contained at least 10% of amphetamine. The witness made it clear that proof of the actual contents of the bags was a matter to be proved by the forensic scientist.
12. The prosecution called Dr Mary Casey, a forensic scientist attached to the Forensic Science Laboratory at Garda Headquarters. She had a B.Sc in Chemistry and a Ph.D. in synthetic chemistry. She confirmed the...
To continue reading
Request your trial
-
DPP v Wilson
...5.53 In that context it is, perhaps, appropriate to refer to the decision of this Court in Director of Public Prosecutions v. Connolly [2011] IESC 6. That case involved a prosecution under s.15A of the Misuse of Drugs Act, 1977 as amended. The value of the relevant drugs was, therefore, of......
-
DPP v Rattigan
...and amended. Counsel for the appellant has referred us to the decision in The People (Director of Public Prosecutions) v Connolly [2011] 1 I.R. 755, in support of this contention. It was submitted that the evidence in this case, at its highest, established a probable value for the drugs re......