DPP v Buckley

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Charleton
• Judgment Date: 08 May 2007
• Neutral Citation: [2007] IEHC 150
• Date: 08 May 2007
• Docket Number: [2006 No. 1638

DPP v BUCKLEY

IN THE MATTER OF SECTION 52(1) OF THE COURTS

(SUPPLEMENTAL) PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

COMPLAINANT

AND

GERRY BUCKLEY

DEFENDANT

[2007] IEHC 150

1638SS/2006

THE HIGH COURT

Abstract:

Criminal law - Evidence - Case stated - Proof of controlled drug - Nature of consultative case stated

The defendant was charged with the offence of possession of cannabis resin. The District Judge referred a question for the opinion of the High Court namely whether the defendant's admission that the substance was cannabis was sufficient evidence that it was such in the absence of a certificate of analysis from the Garda Forensic Science Laboratory confirming that the substance was in fact cannabis.

Held by Charleton J. that the admission by the accused that he was in possession of cannabis constituted an admission against interest and was therefore admissible against him. In all the circumstances of the case, there was sufficient prima facie proof through the admission of the accused, coupled with the pipe and the knife, that the substance in his back trouser pocket was the relevant controlled drug.

Reporter: R.W.

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1984 S6

MISUSE OF DRUGS ACT 1977 S23

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987

DUBLIN CORPORATION v ASHLEY 1986 IR 781 1986 6 498

NATIONAL AUTHORITY FOR OCCUPATIONAL SAFETY & HEALTH v O'K TOOLS HIRE & SALES LTD 1997 1 IR 534 1996 14 4272

COLLINS & O'REILLY CIVIL PROCEEDINGS & THE STATE 2ED 2004

DPP (COMISKEY & GOVERN) v TRAYNOR UNREP MURPHY 27.7.2005 2005/22/4603 2005 IEHC 295

DPP, PEOPLE v O'SHEA 1983 ILRM 592

R v GALBRAITH 1981 1 WLR 1039

MISUSE OF DRUGS ACT 1984

CHARLETON CONTROLLED DRUGS & THE CRIMINAL LAW 1ED 1986

>BIRD v ADAMS 1972 CLR 174

R v CHATWOOD & ORS 1980 1 WLR 874 1980 1 AER A67

R v BAGSHAW 1995 CLR 433

CITY OF SUNDERLAND v DAWSON UNREP 12.11.2004 2004 EWHC 2796 (ADMIN

DPP v MCHUGH 2002 1 IR 352 2002 9 2175

1 1. The defendant was charged with one offence before Judge Constantine O'Leary in Cork. This alleged that on 31st January, 2005 at Hollyhill, in the city of Cork, he had cannabis resin in his possession contrary to ss. 3 and 27 (as amended by s. 6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977. Having part heard this case in May, 2005, the learned District Judge referred a question for the opinion of the High Court in the following terms:-

"Whether the defendants' admission that the substance recovered from his pocket was cannabis is sufficient evidence that it was such... in the absence of a certificate of analysis from the Garda Forensic Science Laboratory confirming that the substance was in fact cannabis."

Facts

2 2. This question was raised as a result of a submission by the defending solicitor at the close of the prosecution case. Mr. Joseph Cuddigan submitted that there was no case for the defendant to answer because the Director of Public Prosecutions had failed to adduce into evidence a certificate of analysis that the substance found on the defendant was cannabis. For the purpose of this procedure, the learned District Judge has found a number of facts, to which I now turn.

3 3. The defendant was stopped on the street on the 26th May, 2005 in Ardcullen area of Hollyhill in the City of Cork by two members of An Garda Síochána. They searched the defendant according to the terms of s. 23 of the Misuse of Drugs Act, 1977, as amended, and as a result of this they found a small quantity of a brown substance, which was believed to be cannabis, in the defendant's back trouser pocket. This substance was shown to the defendant and he was cautioned that he was not obliged to say anything. Mr. Buckley was invited to the Garda Station for the purpose of a thorough search and, when he declined, he was arrested under s. 23 of the Misuse of Drugs Act, 1977, as amended. After being checked into Gurranebraher Garda Station under the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána stations) Regulations, 1987, a further search took place. The Gardaí found a knife in one Mr. Buckley's pockets and an item that has been described as a "hash pipe" and a balaclava. After caution, Mr. Buckley admitted that the brown substance was cannabis and he added that it was for his own use. He also accepted that the balaclava, the pipe and the knife were his property. Mr. Buckley was then released from custody but the relevant items were kept for the purpose of a prosecution. The cannabis was sent for analysis to the Forensic Science Laboratory, but it would seem that it never arrived back.

Consultative Case Stated

4 4. I am satisfied that the question asked by the judge is both sensible and pertinent. If, however, I baldly answer it without reference to the other facts which he has found I may be in danger of misleading him as to the appropriate law. It seems to me that the relationship between the District Court and the High Court in these cases is similar to that expressed by Finlay C.J. in Dublin Corporation v. Ashley [1986] I.R. 781, in relation to a consultative case stated from the Circuit Court to the Supreme Court, where this opinion was expressed at 785:-

"The purpose and effect of a consultative case stated by a Circuit Court judge to the Supreme Court is to enable him to obtain the advice and opinion of the Supreme Court so as to assist him in reaching a correct legal decision. Having regard to that purpose and relationship which exists between the two courts, it would, in my view, be quite inappropriate for the Supreme Court, for any reason of procedure, to abstain from expressing a view on an issue of law which may determine the result of the case before the learned Circuit Court Judge."

5 5. It follows that for the purpose of assisting the District Court, this court must look at the whole of the case stated and give advice on the basis of what Laffoy J. in National Authority for Occupational Safety and Health v. O'K Tools [1987] 1 I.R. 534 at 541 called:- "the issue on which the District Court Judge requires guidance." Therefore, a question may be reformulated and an answer given in the light of the whole of the case stated provided this does not exceed the facts as found for this purpose by the learned District Judge; Collins & O'Reilly, Civil Proceedings and the State (2nd Ed., Dublin, 2004), and The Director of Public Prosecutions (Comiskey) v. Traynor, (Unreported, High Court, 27th July, 2005).

6 6. For this purpose, I accept that the trial judge has an obligation to have regard to relevant evidence, since the purpose of the criminal trial is to enquire as to whether the prosecution have adduced sufficient evidence to prove beyond reasonable doubt that the accused committed the crime. It has been argued, and I agree, that the public interest requires the acquittal of the innocent and, where the prosecution have discharged the burden and standard of proof, the conviction of the guilty.

Direction Stage

7 7. The issue before the trial judge at direction stage, on the close of the prosecution case, whether he or she is sitting with the jury or is the sole tribunal of fact, is whether the prosecution have adduced sufficient evidence which might enable a safe conviction to occur on a full consideration of that evidence by the tribunal of fact. In The People (The Director of Public Prosecutions) v. O'Shea [1983] I.L.R.M. 592, Finlay P. had this to say at 594:-

"One of the functions of a trial judge in a criminal trial is to reach a decision at the conclusion of the evidence tendered on behalf of the prosecution as to whether there is evidence which if accepted by a jury could as a matter of law lead to a conviction. This may frequently occur in practice in cases where there is a gap in the evidence tendered on behalf of the prosecution and where some vital link in the chain of proof is missing. It also arises in my view, however, and not infrequently, in cases where an apparent link in the chain of proof is so tenuous that it would clearly be perverse for a jury properly directed as to the onus of proof upon the prosecution to act upon it."

8 8. The test to be applied, therefore, revolves around whether the tribunal of fact, be...