DPP v Berry

JudgeDenham J.
Judgment Date17 February 2011
Neutral Citation[2011] IECCA 4
CourtCourt of Criminal Appeal
Date17 February 2011

[2011] IECCA 4


Denham J.

Budd J.

Hanna J.

[C.C.A. No: 304/09]
DPP v Small
Application for a certificate pursuant to s.29(2) of the Courts of Justice Act, 1924, as substituted by s.22 of the Criminal Justice Act, 2006
The People (at the suit of the Director of Public Prosecutions)


Darragh Small








Certificate for leave to appeal - Non-disclosure of evidence - Right to call witness - Unavailability of witness at trial - Right to viva voce evidence - Hearsay - Application to discharge jury - Whether point of law of exceptional public importance - Whether appeal desirable in the public interest - Whether late disclosure of evidence prevented witness being called - Whether entitlement to viva voce evidence - Whether written statement from witness sufficient - Whether jury should have been discharged - Whether patently unfair procedures - Whether breach of hearsay rule - People (DPP) v McKevitt [2008] IESC 51, [2009] 1 IR 525 considered - Misuse of Drugs Act 1977 (No 12), ss 15A and 27 - Misuse of Drugs Regulations 1988 (SI 328/1988) - Criminal Evidence Act 1992 (No 12) - Application refused (304/2009 - CCA - 17/2/2011) [2011] IECCA 4

People (DPP) v Small

Facts This was the third hearing of the applicant's case. His application for leave to appeal conviction was refused by this court on 5th July 2010. He now sought to revoke that by a certificate under s. 29 (2) of the Courts of Justice Act, 1924 as substituted by s.22 of the Criminal Justice Act, 2006. The applicant was arrested, charged and convicted for possession of a controlled drug with a value in excess of €13,000. A central piece of the evidence concerned a car key which would link the applicant to the drugs. The prosecution contented that the make of the key was not relevant, but the fact that a key, which the applicant threw away, opened a van and started the engine and that this van contained evidence connecting the drugs to the applicant. The Gardai visited a garage to obtain evidence on the key but this fact was not disclosed to the defence. The garage man was not available to attend the trial but had written a report. Defence submitted they had a right to examine the garage man in evidence. The trial judge ruled this was not necessary.

Held by the Court of Criminal Appeal (Denham J; Budd and Hanna JJ) in dismissing the application:

In all the circumstances this was not a case of 'patently unfair procedures'.

The issue of the garage man's evidence arose through no one's fault

The trial judge analysed the evidence and decided not to discharge the jury and in considering all the issues acted fairly

The was satisfied the case did not involve a point of exceptional public importance.

Reporter: BD


On the 5 th day of July, 2010 this Court delivered a judgment ( ex tempore) on an application by Darragh Small, the defendant/applicant, referred to in this judgment as "the applicant", for leave to appeal against his conviction, of the 6 th day of November, 2009, on a count of possession of a controlled drug with a value of €13,000 or more for the purpose of selling or otherwise supplying it to another contrary to s.15A and s.27 of the Misuse of Drugs Act, 1977 as amended, and the Misuse of Drugs Regulations, 1988 and 1993.


Counsel on behalf of the applicant submitted that the judgment of this Court in refusing the applicant leave to appeal his conviction involves a point of law of exceptional public importance and that it is desirable in the public interest that the applicant should take an appeal to the Supreme Court; that in order for justice to be done the significant point of law involved in the decision of this Court ought to be considered and determined upon by the Supreme Court.


Counsel on behalf of the applicant submitted that the point of law arising in this case is as follows:-

"Whether the test as enunciated by Geoghegan J. in The People (D.P.P.) v. McKevitt [2009] 1 I.R. 525 and applied by this Learned Appeal Court is a legally permissible and appropriate test to be applied in cases involving 'patently unfair procedures' as distinct from cases involving 'an alleged risk of unfairness' arising by reason of the non-disclosure to the defence of specified material."


The applicant was charged with possession of a controlled drug with a value of €13,000 or more for the purpose of selling or supplying it to another contrary to s.15A and s.27 of the Misuse of Drugs Act, 1977, as amended. He was charged that on the 2 nd day of December 2005 at Bow Lane West, Kilmainham, Dublin 8, he had in his possession a controlled drug, diamorphine, for the purpose of sale or supply. There was evidence that three members of An Garda Síochána saw the applicant with a white Spar supermarket bag which he dropped, which contained heroin with a market value of over €13,000, being €97,000. The applicant claimed he had not seen the bag and that it was not his. There was evidence given that a key was thrown by the applicant onto the footpath. The applicant had been seen walking from the rear of a parked white van. A member of An Garda Síochána tried the key to see if it lit up any of the cars parked on the road. It did not. Nor did the key light up the white van. However, when the garda tried the key in the driver's door of the white van it opened and he found two rolls of tape inside the white van which looked similar to the tape in the white bag which the applicant had dropped. He felt the engine and it was warm. Using the key he drove the van to Kevin Street Garda Station.


During the trial an issue arose as to the key. The defence had not been informed of a visit by members of An Garda Síochána to Mitsubishi Ireland. On the 4 th November, 2009, day 3 of the trial, counsel for the applicant stated that on the 3 rd November, 2009 the solicitor for the applicant was made aware by Mr. Halligan of the Mitsubishi Ireland Corporation that three gardaí had called to him nine months earlier and had shown him a key. Counsel stated that the gardaí had been told it was not a Mitsubishi key. The visit by the gardaí and the conversation with Mr. Halligan had not been disclosed to the defence. The evidence of Garda Rogers was that he, and D/Sergeant O'Halloran, went out, in about December 2008, to Mitsubishi on the Naas Road and that they spoke to someone and showed him the key and they were told Mitsubishi did not make keys that short. Garda Rogers gave evidence that he never mentioned anything about a Renault key and he said he did not bring a blank key with him. D/Sergeant O'Halloran gave evidence and said he spoke to someone in Mitsubishi and that Mr. Halligan said that Mitsubishi use longer keys. It was the blade of the key that was examined by Mr. Halligan. Detective Sergeant O'Halloran said he never said it was a Mitsubishi key. He said that the key which the applicant threw on the pathway opened the white van and operated the ignition. Mr. Halligan was unable to attend court to give oral evidence at short notice because of a hospital appointment. It was at this stage that an application for a direction was made by counsel for the defence seeking an adjournment of the trial or an order to discharge the jury because of the unavailability of oral evidence by Mr. Halligan. This application was refused by the learned trial judge.


The learned trial judge ordered that the trial proceed.


The white van had been an aspect of the investigation when the applicant was first...

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