DPP v Cleary

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken
• Judgment Date: 03 March 2006
• Neutral Citation: [2006] IECCA 25
• Court: Court of Criminal Appeal
• Date: 03 March 2006

[2006] IECCA 25

COURT OF CRIMINAL APPEAL

McCracken J.

O'Donovan J.

Gilligan J.

Record No. 121/05

DPP v CLEARY

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

and

DANIEL CLEARY

APPLICANT

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S15A

R v LUCAS 1981 CA 159

Abstract:

Criminal law - Appeal - Judge's charge - Error in charge in relation to specific piece of evidence - Whether conviction unsafe

Facts: The applicant appealed against his conviction on grounds inter alia that the trial judge was in error in reciting the evidence and wrongly contradicted a submission in the closing address of counsel for the applicant.

Held by the Court of Criminal Appeal in granting leave to appeal, allowing the appeal and directing a retrial of the applicant that the conviction was unsafe as it may have been based on a false belief by the jury.

Reporter: R.W.

1 3rd day of March 2006 by Mr Justice McCracken

Mr Justice McCracken

2 The applicant was charged with:

3 1. Possession of a controlled drug for the purpose of selling or otherwise supplying to another contrary to section 15 of the Misuse of Drugs Act 1977.

4 2. Possession of a controlled drug contrary to section 3 of the Misuse of Drugs Act 1977.

5 3. Possession off one or more controlled drugs with aggregate value of €13,000 or more for the purpose of selling or otherwise supplying to another contrary to section 15A of the Misuse of Drugs Act 1977

6 These offences were alleged to have occurred on l9 ^th February 2003 at The Heath, Portlaoise. He pleaded not guilty to each of the charges.

7 On 4th March 2005 the applicant was found guilty by a jury on each count and sentenced to five years imprisonment in respect of count 1, two years imprisonment in respect of count 2 and ten years imprisonment in respect of count 3.

8 The prosecution case was that the applicant and his uncle Alan Finnamore were observed by Gardai on 18 ^th February 2003 with another unidentified person driving up a lane into a place known as Killenny Wood in The Heat, Portlaoise and returning from the laneway about five minutes later. The Gardai having observed this trip searched Killenny Wood but found nothing.

9 The next day, 19 ^th February 2003, the Gardai staked out the wood and saw the same car being driven by Mr Finnamore with the applicant in the passenger seat. The evidence of Garda Liam Logan was that he observed the driver and the passenger of the vehicle getting out and having a look around. He was then asked what did he ten observe and his answer, which is of considerable importance in the case, was:

"I observed the driver lean back into the car, get something out of the car and carry it and place it in the ditch."

10 The evidence of Detective Garda Scully who was also present was that:

"The driver actually looked around as did the passenger and then the driver seemed to get back into the car and he came back out and he walked over towards the ditch."

11 Garda Logan's statement in the Book of Evidence was also put to him in cross-examination where he said:

"I then observed the driver lean back into the driver's door. He then came back out of the car and appeared to carry something into the ditch."

12 The two men returned to the car and shortly afterwards drove to the end of the laneway where there was a farmhouse and they parked there. After about fifteen minutes the Gardai moved in and arrested Ms Finnamore and the applicant and searched the ditch and found a rucksack containing amphetamine.

13 There was no direct evidence that the applicant ever handled the rucksack nor that he had any knowledge of the contents of the rucksack. The charge that the applicant was in possession of the drugs was therefore based purely on circumstantial evidence. This being so, the issue of whether the applicant was even aware there was a rucksack in the car was of vital importance.

14 The first ground of appeal relates to the admission of evidence that the applicant was seen at Killenny Wood on 18 ^th February, the day before the offence is alleged to have taken place. This court is quite satisfied that the prosecution were alleging that there was a joint enterprise between the applicant and Mr Finnanmore even though those words may not have been used to the jury. That being so, the court is satisfied that evidence of the actions of the two accused on the previous day at or near the place where the drugs were found was clearly relevant as tending to show that there had been a joint enterprise.

15 After the applicant was arrested, when interviewed by the Gardai he denied that he had been in the laneway on 18 ^th February. Despite objection by counsel for the applicant the learned trial judge allowed evidence of this denial to go to the jury. Objection is now taken that he ought not to have done so, or, at the very least, he ought to have warned the jury that even if they found or believed that he told lies in the course of his interview, that there could be reasons other than the applicant's guilt for having told the lies. Counsel for the applicant refers to a passage in a judgment in R. v Lucas [1981] C.A. 159 at page 162 as follows:

"To be capable...