DPP v Byrne

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [C.C.A. Nos. 2, 7 and

Court of Criminal Appeal

[C.C.A. Nos. 2, 7 and 8 of 1996]

The People (Director of Public Prosecutions) v. Byrne

The People (at the suit of the Director of Public Prosecutions)

Respondent

and

Ronnie Byrne, David Healy and Patrick Kelleher

Applicants

Cases mentioned in this report:-

Director of Public Prosecutions v. Forbes [1993] I.L.R.M. 817.

Hobson v. Impett (1957) 41 Cr. App. R. 138.

Keating v. The Governor of Mountjoy Prison [1991] 1 I.R. 61; [1990] I.L.R.M. 850.

The People (Director of Public Prosecutions) v. Harrington (Unreported, Court of Criminal Appeal, 31st July, 1990).

The People v. Madden [1977] I.R. 336; (1976) 111 I.L.T.R. 117.

The People v. Murray [1977] I.R. 360; (1976) 111 I.L.T.R. 65.

R. v. McNamara (1988) 87 Cr. App. R. 246.

Reg. v. Warner [1969] 2 A.C. 256; [1968] 2 W.L.R. 1303; [1968] 2 All E.R. 356.

The State (Attorney General) v. Judge Fawsitt [1955] I.R. 39.

State (O'Connell) v. Fawsitt [1986] I.R. 362; [1986] I.L.R.M. 639.

The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550; [1985] I.L.R.M. 465.

Criminal Law - Misuse of Drugs - Conviction - Leave to appeal - Ruling that detention unlawful - Whether ruling depriving court of jurisdiction to try offences - Whether evidence of arrest, charge and caution necessary to ground charges - Whether evidence that accused were persons arrested for offences on indictment necessary - Whether prejudicial effect of evidence outweighing its probative value - Offences against the State Act, 1939 (No. 13), s. 30.

Criminal Law - Misuse of Drugs - Leave to appeal - Whether jury adequately charged as to guilty knowledge necessary to ground conviction for possession of controlled drugs - Circumstances entitling charges to go to jury - Misuse of Drugs Act, 1977 (No. 12), s. 29.

Criminal Law - Trial - Procedure - Accused discharging legal advisers at close of prosecution case - Accused invited to reconsider discharge - Whether prosecution entitled to make closing address to jury - Parameters of closing speech explained to accused - Accused's speech prohibited by reason of its nature - Application by co-accused for separate trial owing to nature of accused's closing speech - Application by accused to reconsider discharge of legal advisers - Whether applications with in discretion of trial judge - Whether discretion properly exercised - Criminal Justice Act, 1984 (No. 22), s. 24(1).

Criminal appeal.

The facts are summarised in the headnote and fully set out in the judgment of the Court of Criminal Appeal, infra.

On the 15th November, 1995, the applicants were convicted of possession of controlled drugs and possession of controlled drugs for supply. The applicants applied to the Court of Criminal Appeal for leave to appeal their convictions on the grounds set out in the judgment, infra.

The application was heard by the Court of Criminal Appeal (Keane, Lavan and Quirke JJ.) on the 24th November, 1997.

By s. 29 of the Misuse of Drugs Act, 1977:-

"(1) [where] it is proved that the defendant had in his possession . . . a controlled drug, the defendant shall not be acquitted . . . by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance . . . was the particular controlled drug alleged.

• (2) [Where] it is proved that the defendant had in his possession a controlled drug . . . it shall be a defence to prove that -

  • (a) he did not know and had no reasonable grounds for suspecting that -

    • (i) that what he had in his possession was a controlled drug . . . or

    • (ii) that he was in possession of a controlled drug . . ."

By s. 24 (1) of the Criminal Justice Act, 1984:-

"Notwithstanding any rule of law or practice . . . contained in section 2 of the Criminal Procedure Act, 1865, the procedure at a trial on indictment as to the closing speeches for the prosecution and for the defence shall be as follows:

• (a) the prosecution shall have the right to a closing speech in all cases except where the accused is not represented by counsel or a solicitor and does not call any witness (other than a witness to character only), and the defence shall have the right to a closing speech in all cases,

• (b) the closing speech for the defence shall be made after that for the prosecution."

The applicants were observed on a beach at night by members of an Garda Síochána when they were given a number of bulky packages by two persons who had arrived on the beach from a dinghy. They were arrested, following a chase, pursuant to s. 30 of the Offences Against the State, 1939, charged and tried in the Circuit Criminal Court for possession of drugs, possession of drugs for supply and the unlawful importation of drugs contrary to the Misuse of Drugs Acts, 1977 to 1984. Forensic examination of the packages showed that they contained a large amount of cannabis resin, a controlled drug under the Misuse of Drugs Act, 1977 to 1984.

During the trial, the admissibility of statements made by the applicants to the gardaí while in custody was challenged and held to be inadmissible by the trial judge on the ground that whilst the gardaí, at first, suspected that the applicants were in possession of firearms, that suspicion no longer existed so as to justify their continued detention under the section once the gardaí had, by way of a search, established that the applicants were not in possession of firearms. At the close of the prosecution case, counsel for the applicants sought a direction on each of the counts which was granted by the trial judge in respect of the charges of unlawful importation and refused in respect the charges of possession of controlled drugs and possession of controlled drugs for supply. At this stage, counsel for the first applicant advised the court that he, his junior counsel and solicitor had been discharged by their client; the first applicant, when questioned by the trial judge as to the wisdom of his decision, confirmed to the court that he wished to represent himself for the remainder of the trial. Counsel for the other applicants having indicated that they did not propose to offer evidence, the first applicant was advised by the trial judge that if he wished to give evidence, he would have to do so on oath and that he might only address the jury by reference to the evidence which had been adduced.

It was submitted by counsel for the second applicant that s. 24(1)(a) of the Act of 1984 precluded the prosecution from addressing the jury because the first applicant was no longer professionally represented. The trial judge rejected the application.

Soon after the commencement of the first applicant's speech to the jury, the trial judge ruled that a deliberate stratagem had been adopted to secure the discharge of the jury and declined to allow him to continue with the speech. An application by counsel for the second applicant for a separate trial in respect of his client on the ground that the first applicant's conduct prejudiced his client's case was refused, as was an application by the first applicant for time to consider whether he should re-engage his legal team.

Each of the applicants was convicted by the jury and leave to appeal was refused.

The applicants applied to the Court of Criminal Appeal for leave to appeal their convictions. The applications were made on a number of grounds,viz., (1) that the trial judge's ruling that the applicant's were unlawfully detained under s. 30 of the Act of 1939, rendered their presence before the Court unlawful, (2) that their trial was unlawful in that no evidence was adduced of their arrest, charge and caution, (3) that their trial was unlawful in that no evidence was adduced that the applicants were the same persons as the persons who were returned for trial on the charges before the Court, (4) that certain identification evidence offered by the prosecution was contrary to a ruling of the trial judge and of greater prejudicial effect than probative value, (5) that the trial judge erred in refusing an application for a direction on the ground that the prosecution had failed to prove that the applicants knew that the packages contained a controlled substance, (6) that the trial judge erred in his charge with respect to guilty knowledge and the need to establish same in respect of each applicant, (7) that the prosecution ought not to have been allowed to make a closing speech, (8) that the trial judge erred in refusing the second applicant's application for a separate trial and the first applicant's application to reconsider the discharge of his legal team.

Held by the Court of Criminal Appeal (Keane, Lavan and Quirke JJ.), in refusing leave to appeal, 1, that the question of whether the applicants were lawfully arrested and detained pursuant to s. 30 of the Act of 1939 was relevant only as to the admissibility of the statements which they made while in custody; proof of a lawful arrest was not an essential ingredient to ground the charges against the applicants.

Director of Public Prosecutions v. Forbes[1993] I.L.R.M. 817 distinguished.

2. That the submission that the court of trial was deprived of jurisdiction by reason of the invalidity of the applicants' arrest and detention was not sustainable, the proper course, in such circumstances being an early challenge to the jurisdiction of a court to hear a charge by way of an application for an order of prohibition by way of judicial review or an application forhabeas corpus. In the absence of such a challenge, the Circuit Court had jurisdiction to try the applicants.

Keating v. The Governor of Mountjoy Prison [1991] 1 I.R. 61 considered.

Obiter dictum: Even where an accused person is brought before a court by an illegal process, the court's jurisdiction may, nonetheless, be effective.

The State (Attorney General) v. Judge Fawsitt [1955] I.R. 39 considered.

3. That there was ample evidence before the jury that the applicants were the same persons who had...