DPP v Boyle
| Jurisdiction | Ireland |
| Judgment Date | 28 January 2010 |
| Docket Number | [C.C.A. No. 28 of |
| Date | 28 January 2010 |
| Court | Court of Criminal Appeal |
Court of Criminal Appeal
Cases mentioned in this report:-
The People (Director of Public Prosecutions) v. Barnwell (Unreported, Central Criminal Court, Flood J., 24th January, 1997).
The People (Director of Public Prosecutions) v. M.(Unreported, Court of Criminal Appeal, 15th February, 2001).
R. v. Bland [1988] Crim. L.R. 41; (1987) 151 J.P. 857.
R. v. Galbraith [1981] 1 W.L.R. 1039; [1981] 2 All E.R. 1060; (1983) 73 Cr. App. R. 124; [1981] Crim. L.R. 648.
R. v. McNamara and McNamara [1998] Crim. L.R. 278.
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 - Criminal Law Act 1997 (No. 14), s. 7(1).
Criminal law - Misuse of Drugs - Possession - Conviction - Whether acquittal by direction on charge of possession precluded conviction on charge of possession with intent to supply - Misuse of Drugs Act 1977 (No. 12), ss. 3, 15 and 15A.
Application for leave to appeal
The facts have been summarised in the headnote and are more fully set out in the judgment of the Court of Criminal Appeal, delivered by Denham J., infra.
The accused was convicted on the 26th January, 2008, in the Circuit Criminal Court by His Honour Judge McDonagh and a jury of possession of drugs for sale or supply contrary to ss. 15 and 15A of the Misuse of Drugs Act 1977, as amended by s. 4 of the Criminal Justice Act 1999.
By notice of appeal dated the 11th February, 2008, the accused applied for leave to appeal against his conviction. The application was heard by the Court of Criminal Appeal (Denham, Herbert and Clarke JJ.) on the 9th November, 2009, where the application for leave to appeal was treated as the hearing of the appeal.
The accused was convicted of the unlawful possession of a controlled drug for sale or supply and sentenced to eight years imprisonment. The offence related to the possession of cocaine in a shed and container. Gardaí searched the premises and found cocaine in the shed and container, and three men there, including the accused. The other two men had rubber gloves on and quantities of cannabis resin on their persons, but the accused did not have rubber gloves on and was not in possession of any controlled substances. The accused had been in the shed with the two other men and had opened the doors for them to gain entry to it. The accused had opened an outer wicker door and an inner shutter door so that the men could drive inside. Drugs and drug handing equipment, including a compressor, were found in the shed.
The prosecutor argued that in opening the doors to admit the men, the accused had aided and abetted the offence of possessing the drugs within for the purpose of sale or supply. The accused applied for leave to appeal against his conviction, submitting that the trial judge had erred in not directing the jury to acquit him on the basis that there had been insufficient evidence of aiding and abetting to go to the jury.
The accused further argued that as the trial judge had directed the jury to acquit him of possession of the same drugs under s. 3 of the Misuse of Drugs Act 1977, it was perverse and contrary to law for him to be convicted of possession for sale or supply under ss. 15 and 15A of the Act of 1977.
Held by the Court of Criminal Appeal (Denham, Herbert and Clarke JJ.), in treating the application for leave as the appeal and in dismissing the appeal, 1, that a direction by the trial judge that the quantity of drugs involved was such that no reasonable jury properly directed could hold that its possession, should that be established, was for a purpose other than selling or supplying did not amount to a direction of an absence of sufficient evidence of possession of the drugs.
2. That for a conviction for aiding and abetting, the mere presence of an accused was not sufficient. An accused could not aid and abet by accident, as one must have intended to encourage or assist in the knowledge that the activity constituted or would result in the commission of a crime. An accused could be present throughout the commission of an offence, but if he or she did not do anything in furtherance of the crime they would not be liable as an aider and abettor. The prosecution must prove that the accused was present in order to further the commission of a crime. Presence at the commission of an offence could be evidence of aiding and abetting only if accompanied by some other factors indicating assistance or encouragement in the commission of the offence.
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R. v. Bland [1988] Crim. L.R. 41 distinguished.
3. That, while evidence that the accused had opened a shutter door to allow the other two men enter the shed could not in itself amount to evidence of aiding and abetting, it was evidence sufficient to go to the jury with other evidence as a strand in the rope of circumstantial evidence, from which the jury could properly conclude that the accused was guilty of aiding and abetting.
Cur. adv. vult.
In accordance with the provisions of s. 28 of the Courts of Justice Act 1924, the judgment of the Court of Criminal Appeal was delivered by a single member.
| Denham J. | 28th January, 2010 |
[1] An application for leave to appeal has been brought by the accused against the convictions imposed on the 26th January, 2008, for the unlawful possession of a controlled drug for the purpose of selling or otherwise supplying it; and as against the sentence of eight years imposed on the 30th January, 2008, to date from the 26th 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.
[2] The accused appeared before the Circuit Criminal Court at Trim, County Meath, between the 16th and the 26th January, 2008, where he was tried on bill number MH09/07 which contained five counts relating to him. These were:-
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(i) count number 6 - unlawful possession of a controlled drug, cocaine, at Mooneystown, Athboy, Co. Meath, for personal use;
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(ii) count number 7 - unlawful possession of a controlled drug, cocaine, for the purpose of selling or supplying;
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(iii) count number 8 - unlawful possession of a controlled drug, cocaine, for the purpose of selling or supplying, being cocaine, the market value of which amounted to EUR13,000 or more;
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(iv) count number 9 - unlawful possession of a controlled drug, cocaine, for the purpose of selling or supplying;
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(v) count number 10 - unlawful possession of a controlled drug, cocaine, for the purpose of selling or supplying, being cocaine the market value of which amounted to EUR13,000 or more.
All counts related to the possession of cocaine at the same address on the 5th 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.
[3] The accused was acquitted by direction of the trial judge on count number 6. The trial judge ruled:-
"However, with regard to the s. 3 of the Misuse of Drugs Act 1977 offence, that is count number 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 ss. 15 and 15A of the Act...
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