DPP v Cleary

• Jurisdiction: Ireland
• Judge: McGuinness J.,Mr Justice McCracken
• Judgment Date: 03 March 2006
• Neutral Citation: [2005] IECCA 51
• Court: Court of Criminal Appeal
• Docket Number: [CCA No. 222 of 2003]
• Date: 03 March 2006

[2005] IECCA 51

COURT OF CRIMINAL APPEAL

McGuinness J.

Hanna J.

MacMenamin J.

Record No. 222/03

DPP v CLEARY

BETWEEN

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

.v.

DANIEL CLEARY

APPLICANT

CRIMINAL JUSTICE ACT 1984 S4

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1984 S6

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S5

MISUSE OF DRUGS REGS 1988 SI 328/1988 REG ART 4

MISUSE OF DRUGS (AMDT) REGS 1993 SI 342/1993

INTERPRETATION ACT 1937 6(1)

DOCUMENTARY EVIDENCE ACT 1925 4(1)

PEOPLE (AT THE SUIT OF THE AG) v KENNEDY 1946 IR 517

EMERGENCY POWERS ACT 1939

PEOPLE (AG) v GERARD GRIFFIN 1974 IR 416

DANGEROUS DRUGS (RAW OPIUM COCA LEAVES & INDIAN HEMP) REGS 1937

COURTS OF JUSTICE ACT 1924 S29

AG v PARKE UNREP SUPREME 6.12.2004

TAYLOYR, STATE v CIRCUIT COURT JUDGE OF WICKLOW & ORS 1951 IR 311

ROAD TRAFFIC ACT 1933 S30

DPP v COLLINS 1981 ILRM 447

CRIMINAL JUSTICE ACT 1984 S6

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUTSODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987 ART18

CRIMINAL JUSTICE ACT 1984 S7

CRIMINAL JUSTICE ACT 1984 S(6)(1)(b)

DPP v CORBALLY UNREP CCA 10.2.2003 2003/14/3180

CRIMINAL LAW:

Evidence

Failure to prove regulations - Judicial notice - Fingerprints - Admissibility of evidence -Caution - Requirement of authority of member of Garda Síochána not below rank of Superintendent - Consent form - Whether formal proof of statutoryi nstruments necessary - Whether authority of member of Garda Síochána not below rank of Superintendent required for taking of person's fingerprints where accused has consented - Whether accused should be cautioned again prior to taking of fingerprints if cautioned at time of arrest - Interpretation Act 1937 (No 38), s 6(1) - Documentary Evidence Act (No 24) 1925, s4(1) - Criminal Justice Act 1984 (No 22), s6 - People (AG) v Kennedy [1946] IR 517 - Conviction quashed (222/2003 - CCA -3/5/2005) [2005] IECCA 51, [2005] 2 IR189 People (DPP) v Cleary

The applicant was convicted of possession of a controlled drug (count 1) and possession of a controlled drug with intent to supply (count 2) and was sentenced to one year's imprisonment and three year's imprisonment respectively, the sentences to run concurrently. The applicant applied for leave to appeal on the grounds that the learned trial judge erred in law in refusing to direct the jury to acquit on count 2 of the indictment where the prosecution had failed to prove the Regulations made pursuant to the Misuse of Drugs Act 1977 and pleaded in the indictment and especially where counsel for the DPP had conceded that the Regulation had not been proved and had unsuccessfully applied for leave to re-open the case in order to prove them. Secondly, the applicant submitted that the learned trial judge erred in law and in fact in ruling admissible in evidence, fingerprints taken from the applicant whilst he was detained in custody in circumstances where no warning was administered to the applicant that the said fingerprints could be used in evidence at his trial and the fingerprints were not taken with the authority of a Garda Superintendent.

Held by the Court of Criminal Appeal (McGuinness, Hanna, MacMenamin JJ) in allowing the appeal in relation to count 2 but refusing the appeal relating to count 1:

1. That the prosecution failed to comply with its duty to prove the Misuse of Drugs Regulations in the manner prescribed by the Documentary Evidence Act 1925. Accordingly the appeal of the applicant's conviction and sentence on the second count will be allowed and no retrial will be ordered.

2. That in the circumstances of the present case the applicant must have realised the purpose for which his fingerprints were being taken. The applicant consented to his fingerprints being taken and accordingly it was not necessary to obtain the authority of a Garda Superintendent. The learned trial judge was correct in ruling admissible the fingerprint evidence despite the flaws in the Garda's procedure regarding the taking of this evidence.

Reporter: L.O'S.

1 Judgment of the Court delivered by McGuinness J. on the 3rd day of May 2005

2 The applicant was charged on two counts, the first possession of a controlled drug, and the second possession of a controlled drug with intent to supply.

3 He was tried on indictment in the Circuit Criminal Court (Midlands Circuit) before His Honour Judge Kennedy and a jury on the 19 ^th and 20 ^th November 2003. He was convicted by the jury on both counts and was sentenced to one year's imprisonment on the first count and three years imprisonment on the second count, the sentences to run concurrently. Leave to appeal the convictions and sentence was refused. The applicant has now applied to this court for leave to appeal. Grounds of appeal were filed on 3 ^rd December 2003.

4 On 16 ^th December 2003 the applicant applied to a division of this court (Hardiman J., O'Sullivan J., Herbert J.) for bail pending the hearing of his application for leave to appeal. Bail was granted on the same conditions as the applicant's pretrial bail.

5 On that date the court was informed that one of the grounds of appeal was a discrete point of law as required by the dicta in Director of Public Prosecutions v Corbally.

6 The offences of which the applicant was convicted were alleged to have occurred on the 15 ^th February 2003. Following a search by two members of An Garda Siochana of an area at the back of a derelict shop at Durrow, Co. Offaly, a black holdall was found concealed under some bushes. Inside the bag there was a green first-aid box that contained a number of sachets of white powder which appeared to be illegal drugs. The holdall was then replaced by the Gardai in the same position where it had been found. Garda Patrick Cleary then concealed himself behind a tree while the other Garda left the scene. Garda Cleary gave evidence that some time later a motor cycle arrived. About ten minutes after that a man walked into the area and pulled out the bag from the undergrowth. The Garda then came out running, took the bag and grabbed the man. He stated that this man was the applicant. The applicant ran off but returned some time later. He was arrested pursuant to section 4 of the Criminal Justice Act 1984 and was brought to the Garda Station in Tullamore where he was interviewed. His interview was electronically recorded. To all questions put to him the applicant answered "no comment". The applicant was charged with the offences set out below. Evidence was given that a fingerprint belonging to the applicant was found on the inside of the lid of the first-aid box.

THE CHARGES

7 Since the nature of the charges brought against the applicant is relevant to the grounds of appeal, it is convenient to set out here the actual wording of the two counts:

Count No. 1 Statement of Offence.

8 Possession of a Controlled Drug contrary to section 3 and section 27 (as amended by section 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

Particulars of Offence

9 Daniel Cleary on the 15 ^th February 2003 at Durrow, Tullamore, in the County of Offaly had unlawfully in his possession a controlled drug, to wit, cocaine.

Count No. 2 Statement of Offence

10 Possession of Controlled Drugs for the purpose of selling or otherwise supplying same contrary to section 15 and section 27 (as amended by section 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977 and contrary to Misuse of Drugs Regulations 1988 and 1993, as made under section 5 of the Misuse of Drugs Act 1977.

Particulars of Offence

11 Daniel Cleary on the 15 ^th February 2003 at Durrow, Tullamore, in the County of Offaly had in his possession a controlled drug, to wit, cocaine for the purpose of selling or otherwise supplying it to another.

THE TRIAL

12 There were a number of unusual features of the trial.

13 The case against the applicant centred firstly on proving that he possessed the drugs which had been found, and secondly on proving that he had an intention to sell or supply the drugs. The Garda evidence was that the drugs had been found in a first- aid box which was contained in a holdall. For some unascertained reason neither the first-aid box nor the holdall were included in the list of exhibits contained in the Book of Evidence. The only exhibits listed were the certificate of analysis of part of the drugs found, the custody record of the period spent in custody by the applicant following his arrest, and photographic enlargements of a fingerprint said to have been found in the first-aid box.

14 During the course of Garda Cleary's evidence the prosecution endeavoured to introduce the holdall and first-aid box into evidence by handing them to the witness. An objection was correctly raised by the defence that these items were not exhibits as listed in the Book of Evidence. In the absence of the jury, counsel for the prosecution admitted that this was "an oversight" and conceded that the items could not be produced in evidence. The learned trial judge expressed astonishment at this situation and indicated that he would have been open to an application by the prosecution for leave to lead this evidence. Counsel for the prosecution then applied for such leave. Counsel for the defence strenuously objected to such leave being given and was critical of the trial judge's intervention which, he submitted, was in aid of the prosecution. In a subsequent ruling the learned trial judge appears to have left the matter open for a further application by the prosecution, but in the event the trial proceeded without either the box or the holdall being produced in evidence.

15 Towards the end of the prosecution case some confusion also arose as to...