DPP v Choung Vu

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 16 November 2015
• Neutral Citation: [2015] IECA 257
• Court: Court of Appeal (Ireland)
• Date: 16 November 2015

[2015] IECA 257

THE COURT OF APPEAL

Birmingham J.

Sheehan J

Edwards J.

Appeal Number: 181/2015

DPP v Choung Vu

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Choung Vu

Appellant

Conviction – Drug offences – Joint enterprise – Appellant seeking to appeal against conviction – Whether there was sufficient evidence to provide a basis for a jury to infer beyond a reasonable doubt the existence of a common design

Facts: The appellant, Mr Vu, as a car passenger, arrived at the rear of a property in Ballinlough, Kells, Co. Meath, used to facilitate the cultivation of cannabis plants intended for sale or supply while it was being searched by the Gardai on the 6th of June 2012. On foot of a search of the car one Garda Crudden found that it contained a number of items that he believed would be used for the cultivation of cannabis plants, namely, lighting, power units or ballast boxes, plant food, nutrients and tools. Garda Crudden concluded that the occupants of the car were involved in the cultivation of cannabis plants in the house for sale or supply, and he proceeded to arrest the appellant. At Trim Circuit Criminal Court, following the close of the prosecution case, the appellant applied to the trial judge for a direction contending that the prosecution evidence, taken at its highest, was such that a jury properly directed could not properly convict upon it, and that accordingly the judge”s duty was to stop the case. The appellant emphasised that mere presence at the scene of the crime could not justify an inference of participation in a joint enterprise. It was submitted that suspicion alone was not sufficient to establish guilt beyond reasonable doubt and that therefore the case should be withdrawn from the jury. The respondent, the DPP, submitted that the prosecution was relying on the appellant”s presence combined with significant circumstantial evidence tending to suggest that he was an active participant. The appellant, on the 8th of July 2015, was convicted by jury of three offences: count 1, possession of a controlled drug for the purpose of selling or otherwise supplying it to another, contrary to s. 15 and s.27 of the Misuse of Drugs Act 1977; count 2, possession of a controlled drug, contrary to s. 3 and s.27 of the 1977 Act; and count 3, cultivation (of cannabis plants) contrary to s.17 and s.27 of the 1977 Act. The appellant appealed to the Court of Appeal against his conviction on the ground that the trial judge erred in refusing to withdraw the case from the jury and to direct them to find the accused not guilty at the close of the prosecution”s case. The appellant contended that the trial judge erred in law in misinterpreting the first limb of the test in R v Galbraith (1981) 73 Cr App R 124. The respondent argued that the trial judge was simply recasting the second leg of the Galbraith test, and did so without departing from its central tenet, namely if the evidence was so weak that no reasonable jury properly directed could convict the case should be withdrawn from the jury. The appellant further contended that the trial judge erred in determining that the prosecution evidence, taken at its highest, was such that a jury properly directed could properly convict on it. It was submitted that certain of the possible conclusions that the trial judge had regarded as being open to the jury could only be arrived at through speculation.

Held by Edwards J that, having considered the ruling of the trial judge, it was a careful and well-reasoned ruling given in circumstances where the trial judge was manifestly aware of, and properly understood, the Galbraith test. Having considered R v Shippey [1988] Crim L R 767, Edwards J held that the trial judge did not fortify his decision with any evidence based on possible speculation, but rather the evasiveness of the appellant”s account.

Edwards J held that there was not sufficient evidence to provide a basis for a jury, properly directed, to infer beyond a reasonable doubt the existence of a common design, in which the appellant could be regarded as a primary participant, to possess in the legal sense the cannabis found in the house at Ballinlough. In the circumstances the Court considered that count 1 and Count 2 respectively should have been withdrawn from the jury, and the Court allowed the appeal in respect of those counts. The Court was satisfied that count 3, being the cultivation charge, was properly allowed to go to the jury and the Court dismissed the appeal in respect of count 3.

Appeal dismissed in part.

Introduction

1 In this case the appellant appeals against his conviction by a jury at Trim Circuit Criminal Court on the 8 ^th of July 2015, following a five day trial, of three offences, namely; count No 1, possession of a controlled drug for the purpose of selling or otherwise supplying it to another, contrary to s. 15 and s.27 of the Misuse of Drugs Act 1977, as amended; count No 2, possession of a controlled drug, contrary to s. 3 and s.27 of the Misuse of Drugs Act 1977, as amended; and count No 3, cultivation (of cannabis plants) contrary to s. 17 and s.27 of the Misuse of Drugs Act 1977, as amended.

2 The appellant appeals on a single ground further particularised in eleven discrete points as set forth in his Notice of Appeal. However, the essence of his appeal may distilled into the single complaint that the trial judge erred in refusing to withdraw the case from the jury and to direct them to find the accused not guilty at the close of the prosecution's case.

The evidence adduced by the prosecution

3 The appellant, a Vietnamese national, was jointly tried with a Mr Kham Tu and a Mr Tuan Cong Le.

4 The jury heard evidence from a Mr Donal Corrigan who told them he was the owner of a house at Ballinlough, Kells, Co Meath, and identified his house in scene of crime photographs taken by the Gardai. He stated that he had rented the house in August of 2011 to an Asian man, whose name he could not immediately recall, who had said that he wanted to rent it for his wife and for his daughter who was studying accountancy. He agreed to do so, and thought no more about it. He was subsequently contacted on the 6 of June 2012 by Detective Garda Dorrigan. As a result of what he learned from the Garda he went to the house and found that it had been converted to what was referred to as a "grow house", i.e., that it was being used to cultivate cannabis. Mr Corrigan identified a white van that was present at the time of his visit as being a vehicle that he had previously seen being driven by the Asian man to whom he had let the house. Under cross examination he agreed that the Asian man had signed the lease as Andy Lu. He also accepted that he had since become aware that the Asian man's name was Kham Tu, also known as David Tu.

5 Garda Barry Crudden told the jury that, having obtained a search warrant from a Peace Commissioner to search the said house at Ballinlough, Kells, Co Meath, he proceeded there accompanied by Detective Sergeant Dorrigan, Garda Shaughnessy and Garda Flynn. Upon arrival Garda Crudden encountered a male who gave his name as Kham Tu, otherwise David Tu, and showed the warrant to him. On entering the house he found that the sitting room had been fitted with lighting, fans, and ventilation equipment and the windows had been covered over. There was plastic on the ground in the sitting room. He then proceeded to go upstairs and found that there was also plastic sheeting on the landing. There were three bedrooms, in each of which there was plastic on the ground and the windows were covered over. There were numerous lights hanging from the ceiling and in one of the bedrooms he found approximately 130 plants growing, which he believed were cannabis plants. He concluded that the house had been used to facilitate the cultivation of cannabis plants intended for sale or supply.

6 Garda Crudden told the jury that having gone back downstairs he was speaking with Mr Tu when he observed a red Chevrolet Aveo car, registration number 08D 20409 arrive at the rear of the property. There were two males present in the vehicle. The driver identified himself to Garda Crudden as Tuan Cong Le. The passenger gave his name as Choung Vu, and provided a date of birth and an address in England. This was the appellant. Garda Crudden made a quick search of the car. He accepted in his evidence that "I didn't necessarily carry out a full search of that car". On foot of the search that he did conduct he found that it contained a number of items that he believed would be used for the cultivation of cannabis plants, namely, lighting, power units or ballast boxes, plant food, nutrients and tools. Garda Crudden concluded at that point that the occupants of the car were involved in the cultivation of cannabis plants in the house for sale or supply, and he proceeded to arrest the appellant. Mr Kham Tu and Mr Cong Le were arrested by his colleagues. The appellant was then conveyed to Kells Garda Station.

7 Garda Crudden further told the jury when he and his colleagues arrived at the house there was a white Hiace type van parked outside, and that Kham Tu had accepted ownership of that van.

8 The jury were shown scene of crime photographs of the interior of the house at Ballinlough and received a more detailed further description from Garda Crudden of exactly what was found there. Garda Crudden further stated to the jury that he was a member of the Meath Divisional Drugs Unit, and that he was in a position to estimate the value of the cannabis plants found at €100,800.

9 The jury heard that the red Chevrolet Aveo car and its contents were seized as evidence. Further scene of crime photographs were produced to the jury showing the contents of the red Chevrolet Aveo car, and...