DPP v Adrian Boyle

JurisdictionIreland
JudgeDenham J.
Judgment Date28 January 2010
Neutral Citation[2010] IECCA 3
CourtCourt of Criminal Appeal
Date28 January 2010

[2010] IECCA 3

THE COURT OF CRIMINAL APPEAL

Denham J.

Herbert J.

Clarke J.

[C.C.A. No: 28 of 2008]
DPP v Boyle
Between/
The People (at the suit of the Director of Public Prosecutions)
Prosecutor/Respondent

and

Adrian Boyle
Defendant/Appellant

MISUSE OF DRUGS ACT 1977 S15A

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S3

CRIMINAL LAW ACT 1997 S7(1)

ACCESSORIES & ABETTORS ACT 1861

R v BLAND 1987 151 JP 857 1988 CRIM LR 41

R v MCNAMARA 1998 CRIM LR 278

R v GALBRAITH 1981 1 WLR 1039 1981 2 AER 1060

DPP v BARNWELL UNREP FLOOD 24.1.1997 1998/15/5319

DPP v M UNREP CCA 15.2.2001 2001/8/1990

CRIMINAL LAW

Joint enterprise

Aiding and abetting - Mens rea - Intention to possess controlled substance for sale or supply - Whether mere presence at crime sufficient for conviction - Whether sufficient circumstantial evidence from which to infer intention - Whether evidence of encouragement - Misuse of Drugs - Possession - Conviction - Whether acquittal by direction on charge of possession precluded conviction on charge of possession with intent to supply - R v Bland [1988] Crim LR 41 distinguished - Criminal Law Act 1997 (No 14), s 7(1) - Misuse of Drugs Act 1977 (No 12), ss 3, 15 and 15A - Appeal dismissed (28/2008 - CCA - 28/1/2010) [2010] IECCA 3

People (DPP) v Boyle

Facts The defendant/appellant was found on two counts, Count No.7 and Count No.8 relating to possession of cocaine with intent to supply in a shed, and possession of that cocaine for sale or supply where the value exceeded €13, 000. He was sentenced to eight months imprisonment on one of the charges, no sentence imposed on the other count. The applicant raised several grounds of appeal, first, that the trial judge erred in law in receiving a verdict in respect of the above counts. The appellant was acquitted by direction on Count No.6 and he was also acquitted on Counts No.9 and 10 relating to similar charge of possession of cocaine with intent to supply in a container. The decision to convict on Counts 7 and 8 was perverse, was equivocal at best, was bad and was contrary to law and did not constitute a valid verdict being returned. The appellant submitted that he should have been acquitted on those counts. Second, that there was no evidence proffered as to the valuation of the drugs in respect of Counts 7 and 8.

Held by the Court of Criminal Appeal (Denham J.Herbert and Clarke JJ) in refusing leave to appeal against conviction that this was a case based on circumstantial evidence which the Judge left the jury to consider. None of the factors taken in isolation would be sufficient to ground a finding of guilt, but taken together they amount to evidence which the trial judge was entitled to let go to the jury.

R v Bland [1987] 151 J.P. 857 distinguished

R v Galbraith [1981] W.L.R 1039 and DPP v Barnwell Court of Criminal Appeal 24th January 1997 followed

Reporter: Caroline O'Connor

1

Judgment of the Court delivered on the 28th day of January, 2010, by Denham J.

2

1. An application for leave to appeal has been brought by Adrian Boyle, the defendant/appellant, referred to in this judgment as "the appellant", against the convictions imposed on the 26 th January, 2008 for the unlawful possession of a controlled drug for the purpose of selling or otherwise supplying it; and against the sentence of 8 years imposed on the 30 th January, 2008, to date from the 26 th January, 2008. This judgment relates to the application for leave to appeal the convictions. Depending on the outcome of the application in relation to the convictions, the Court at a later date may address the issue of sentence.

3

2. The appellant appeared before the Circuit Criminal Court at Trim, County Meath, between the 16 th and the 26 th January, 2008 where he was tried on Bill No. MH09/07 which contained 5 counts relating to him. These were:-

4

· Count No.6 - unlawful possession of a controlled drug, cocaine, at Mooneystown, Athboy, Co. Meath, for personal use.

5

··Count No.7 - unlawful possession of a controlled drug, cocaine, for the purpose of selling or supplying.

6

··Count No.8 - unlawful possession of a controlled drug, cocaine, for the purpose of selling or supplying, being cocaine, the market value of which amounted to €13,000 or more.

7

··Count No.9 - unlawful possession of a controlled drug, cocaine, for the purpose of selling or supplying.

8

··Count No.10 - unlawful possession of a controlled drug, cocaine, for the purpose of selling or supplying, being cocaine the market value of which amounted to €13,000 or more.

9

All counts related to the possession of cocaine at the same address on the 5 th August, 2006. The first three counts (6, 7 and 8) concerned possession of the controlled drugs in a shed. The last two counts (9 and 10) related to possession of the controlled drugs in a container at the rear of the shed.

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3. The appellant was acquitted by direction of the trial judge on Count No.6. The learned trial judge ruled:-

"However, with regard to the section 3 offence, that is count 6 on the indictment, I am unsure as to what evidence there is as to the accused being in possession of a controlled drug euphemistically referred to as "possession for one's own use", since that is the alternative to possession for supply otherwise sections 15 and 15A. He was searched in the garden or shed and was not in possession of any drugs on his person.

The question then arises of which exhibit was he possessed which was of such a quantity that was small enough to fall into this bracket.… So it seems to me that there is no evidence to support a section 3 prosecution for the simply reason that the accused was not in possession of any quantity small enough to bring him within the scope of section 3."

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[Emphasis added]

12

[Transcript from the 24 th January, 2008, at p.5, line 8]

13

4. The jury, after deliberation, found the appellant not guilty in relation to Counts No.9 and 10 - that was possession of the controlled drugs in the container at the rear of the shed.

14

5. The jury, by a majority of 10-2, found the appellant guilty on Counts No.7 and 8, which related to possession of the cocaine in the shed with intent to supply, and possession of that cocaine for sale or supply where the value exceeded €13,000.

15

6. On the 30 th January, 2008 the appellant was sentenced to eight years imprisonment on Count No.8, the s.15A offence. No sentence was imposed in relation to Count No.7.

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7. In written submissions counsel on behalf of the appellant distilled the grounds of appeal in relation to the conviction as follows:-

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(i) The trial judge erred in law in receiving a verdict in respect of Counts 7 and 8. The appellant was acquitted by direction on Count No.6 and he was also acquitted on Counts No.9 and 10. The decision to convict on Counts 7 and 8 was perverse, was equivocal at best, was bad and contrary to law and did not constitute a valid verdict being returned. He should have been acquitted on those counts.

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(ii) There was no evidence proffered as to the valuation of the drugs in respect of Counts 7 and 8.

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(iii) The trial judge erred in refusing to grant directions.

Oral submissions
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8. Counsel submitted that the verdict was perverse as the appellant had been acquitted by direction of the trial judge of the possession of the same drugs for personal use. It was submitted that s.15, by operation of law, places a presumed intent onto the fact of possession. However, one cannot have "possession with intent" where one does not have "possession" in the first place. It was submitted that, as the appellant had beenfound not guilty, by direction, of the possession of the drugs in the shed on the s.3 offence, he could not have been validly convicted under s.15 for the possession of controlled drugs for unlawful sale or supply. It was submitted that the trial judge incorrectly held that the s.3 count was an alternative to the s.15 and s.15A counts when he directed the jury to acquit on that ground. It was submitted that the learned trial judge was incorrect as "simple possession" was not an alternative. It was submitted that it is a condition precedent to a conviction under s.15 and s.15A that the essential element of possession be established on either of such charges. It was submitted that the direction of the judge in relation to Count No.6 to acquit in relation to possession of cocaine in the shed should have resulted in a not guilty verdict on Counts No.7 and 8, which related to possession for supply. As the jury found the appellant guilty on Counts No.7 and 8 and not guilty on Counts No.9 and 10, Counsel submitted that the verdict was perverse and contrary to law. Further, Counsel submitted that there was no cogent evidence upon which a jury could find that the appellant aided and abetted.

Issues
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9. Essentially there are two issues in this appeal. First, the issue of possession and the direction on the section 3 charge. Secondly, the issue of possession in light of the facts of the case and Counts No.7 and 8. The case distilled down to the question as to whether there was enough material to go to the jury.

Section 3 direction
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10. In giving a direction on Count No. 6 it appears that the learned trial judge did not address the issue of "possession in law" at all. What the learned trial judge ruled was that the quantity of the drugs involved, as established by the evidence, was such that no reasonable jury properly directed could properly hold that its possession, should that be established, was for a purpose other than for selling or supplying.

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The appellant was acquitted by direction of the trial judge in relation to Count No.6; the section 3 charge. It is clear from the terms of the ruling, which is set out earlier in this judgment, that this was done on the basis of the quan...

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  • DPP v Boyle
    • Ireland
    • Court of Criminal Appeal
    • 28 January 2010
    ... [2010] IECCA 3, Court of Criminal Appeal [C.C.A. No. 28 of 2008] People (Director of Public Prosecutions) v. Boyle The People (at the suit of The Director of Public Prosecutions) Prosecutor and Adrian Boyle Accused Cases mentioned in this report:- The People (Director of Public Prosecution......

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