Director of Public Prosecutions v Klubikowski
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 18 May 2023 |
| Neutral Citation | [2023] IECA 137 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 272/2019 |
[2023] IECA 137
McCarthy J.
Kennedy J.
Donnelly J.
Record Number: 272/2019
THE COURT OF APPEAL
Conviction – Drugs offences – Duress – Appellant seeking to appeal against conviction – Whether the trial judge failed to put the appellant’s defence of duress to the jury adequately or at all
Facts: The appellant, Mr Klubikowski, on the 5th November 2019, was convicted of an offence contrary to s. 15A and s. 27 of the Misuse of Drugs Act 1977, as amended, and other drugs offences under the 1977 Act, in relation to possession of cannabis and cocaine. He appealed to the Court of Appeal against conviction. The Court was furnished with nine grounds of appeal. At oral hearing, it was indicated that grounds 2, 7, 8 and 9 were not being pursued. The grounds were as follows: (1) the trial judge erred in fact and law in finding in a voir dire that the stop of vehicle 07LS6179 alleged to have been driven by the appellant on the 30th November 2017 at M8 Motorway, Corrin, Fermoy, in the County of Cork by Garda O’Loughlin was lawful; (3) the trial judge failed to explain or clarify for the jury, adequately or at all, the meaning of material terms, including possession and control; (4) the trial judge failed to explain or clarify s. 29 of the 1977 Act; (5) the trial judge failed to put the appellant’s defence pursuant to s. 29 of the 1977 Act to the jury adequately or at all; and (6) the trial judge failed to put the appellant’s defence of duress to the jury adequately or at all.
Held by the Court that, as it was satisfied that the Garda had a common law power to stop the vehicle, the fact that the judge wrongly attributed his exercise of that power as being under statute did not impact on the lawful exercise of the common law power to stop the appellant’s vehicle; moreover, it seemed to be the position that Garda O’Loughlin’s concerns regarding the conduct of the three occupants arose in the context of a road traffic patrol. The Court found that it was clear that the judge not only properly instructed the jury regarding the legal concept of possession and the necessary elements but that he also, clearly, concisely and logically set out the facts for the jury, including the appellant’s defence. The Court was not persuaded that the judge erred in that respect. The Court noted that the judge directed the jury that the respondent, the Director of Public Prosecutions, was obliged to prove beyond reasonable doubt the elements of possession of the goods in question and that it was a controlled drug, however, he did not point out to the jury that the burden then shifted to the appellant to establish the existence of a reasonable doubt regarding his knowledge. The Court noted that he did, however, place the burden on the prosecution to prove to the required standard that the appellant knew or ought to have known that the goods in question were controlled drugs; thus, giving directions to the jury which were in fact more favourable to the defence than if he had directed them in terms of s. 29(2) and the reverse onus of proof. Consequently, as the charge favoured the appellant in that regard, the Court was not persuaded that any injustice arose rendering the conviction unsafe. The Court held that the remarks alluded to in the memoranda of interview could not be taken to mean, on any rational analysis, to be threats in the sense envisaged in People (AG) v Whelan [1934] IR 518. The Court held that before a defence may be left for a jury’s consideration, there must be some evidence of reasonable cogency as stated in People (DPP) v Almasi [2018] IECA 372. In the Court’s view, the threshold had not been met in this case. The trial judge refused the requisition to visit the defence of duress and properly in the opinion of the Court.
The Court held that, as it had not been persuaded that any of the grounds of appeal had been made out, the appeal would be dismissed.
Appeal dismissed.
JUDGMENT of the Court delivered on the 18 th day of May 2023 by Ms. Justice Isobel Kennedy.
. This is an appeal against conviction. On the 5 th November 2019, the appellant was convicted of an offence contrary to s. 15A and s. 27 of the Misuse of Drugs Act, 1977, as amended and other drugs offences under the 1977 Act, in relation to possession of cannabis and cocaine.
. At approximately 2:20pm on the 30 th November 2017, Garda Peter O'Loughlin was travelling southbound on the M8 motorway in an unmarked Garda patrol car, when, between Mitchelstown and Fermoy, he overtook a vehicle being driven by the appellant. He stated that there were three males in the vehicle and that when they spotted the unmarked patrol car, they appeared to be uneasy with the patrol car overtaking them.
. Garda O'Loughlin decided to pull in front of the line of traffic and reduce his speed to 80km/h. He stated that all of the other vehicles in that line of traffic behind him overtook the patrol car, whereas the appellant's vehicle stayed back behind him. The Garda slowed down further, waiting for the appellant's vehicle to overtake him so that he could do a vehicle registration check. He stated that he pulled into the hard shoulder and had almost come to a stop before the appellant's vehicle overtook him.
. At this point, Garda O'Loughlin radioed Fermoy Garda Station seeking assistance as he intended to stop the vehicle. Once he received confirmation that Gardaí from Fermoy Garda Station were on their way, he activated the blue lights and the appellant pulled into the hard shoulder and stopped. The Garda approached the passenger window. There were three men in the vehicle, the appellant, and two other males.
. When the front seat passenger opened the passenger window, the Garda immediately noted a strong smell of cannabis coming from the vehicle. He asked the appellant for his driving licence, and he complied. The two other passengers also gave the Garda their identification. The appellant recognised Garda O'Loughlin as he had previously stopped him for a road traffic matter.
. The Garda informed the three males that due to the strong smell of cannabis coming from the vehicle, he intended to search the vehicle pursuant to s. 23 of the Misuse of Drugs Act, 1977. He asked them to step out of the vehicle and they complied. At this point, Garda O'Loughlin was accompanied by Sergeant Lyons from Fermoy Garda Station.
. Garda O'Loughlin searched the appellant's person and discovered €850 cash. He then searched the front of the vehicle and the back seat. Upon the Garda opening the boot of the vehicle, the front passenger ran down an embankment and disappeared out of sight. The appellant and the other male remained at the scene.
. The Garda removed a blue Adidas sports bag, a Lidl shopping bag and a brown leather wallet from the boot. Inside the sports bag was what appeared to be three bundles of cannabis wrapped in cling film. Inside the Lidl bag, there appeared to be cannabis and some white powder wrapped up. This white powder appeared to the Garda to be cocaine. Inside the wallet, there was €5,001. Garda O'Loughlin then cautioned the appellant and the other male.
. A further two Gardaí arrived at the scene. At approximately 2:50pm, the two men were conveyed to Fermoy Garda Station. Initial estimations by the Gardaí were that the drugs recovered from the vehicle driven by the appellant were worth somewhere in the region of €40,000. The appellant was arrested under s. 25 of the 1977 Act.
. Ms O'Neill of Forensic Science Ireland confirmed that the weight of the cannabis was 1,156.3 grams and that the weight of the cocaine was 49.8 grams. This was valued by Detective Sergeant Leahy at €20 a gram for cannabis giving a total as €23,126 and at €70 per gram for the cocaine giving a total of €3,486. This gave an overall total value of controlled drugs of €26,612.
. This Court was furnished with nine grounds of appeal, however, at oral hearing, it was indicated that grounds 2, 7, 8 and 9 were not being pursued. The grounds are as follows:-
“1. The Learned Trial Judge erred in fact and law in finding in a voir dire that the stop of vehicle 07LS6179 alleged to have been driven by the Applicant on the 30th day of November 2017 at M8 Motorway, Corrin, Fermoy, in the County of Cork by Garda Peter O'Loughlin was lawful.
3. The Learned Trial Judge failed to explain or clarify for the Jury, adequately or at all, the meaning of material terms, including possession and control.
4. The Learned Trial Judge failed to explain or clarify section 29 of the Misuse of Drugs Act, 1977 (as amended).
5. The Learned Trial Judge failed put the Applicant's defence pursuant to section 29 of the Misuse of Drugs Act, 1977 (as amended) to the Jury adequately or at all.
6. The Learned Trial Judge failed put the Applicant's defence of duress to the Jury adequately or at all.
. It is the appellant's position that the stop of his vehicle was unlawful. Garda O'Loughlin gave the following account in direct evidence as the basis for stopping the appellant's vehicle:-
“Judge, I was on patrol on the M8 motorway on the 30th of November 2017. Approximately 14.20 I was traveling southbound between Mitchelstown and Fermoy. There was a few cars in front of me driving in lane 1. I was overtaking them in lane 2. I observed the accused's vehicle, Judge, a grey Audi A8 07LS6179. As I overtook this vehicle, I saw three males briefly and they — they looked to be — have immediately spotted the unmarked patrol car and seemed to be uneasy with the patrol car overtaking them. I pulled in in front of the line of traffic and I reduced my speed to approximately 80 kilometres an hour. All the other vehicles in the line that were behind me overtook me and Mr...
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