DPP v Connolly

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 12 May 2009
• Neutral Citation: [2009] IECCA 53
• Court: Court of Criminal Appeal
• Date: 12 May 2009

[2009] IECCA 53

THE COURT OF CRIMINAL APPEAL

Denham J.

Herbert J.

Hanna J.

[Record No: CCA 259/2007]

DPP v Connolly

Between/

The Director of Public Prosecutions

Applicant/Respondent

and

Alphonsus Connolly

Respondent/Appellant

EURO CHANGEOVER (AMOUNTS) ACT 2001 S1(3)

EURO CHANGEOVER (AMOUNTS) ACT 2001 SCHED 3

EURO CHANGEOVER (AMOUNTS) ACT 2001 SCHED 4

MISUSE OF DRUGS ACT 1977 S15A(1)(B)

R v WARD (JUDITH THERESA) 1993 1 WLR 619 1993 2 AER 577

DPP v FINNAMORE UNREP CCA 1.7.2008 2008 IECCA 99

MISUSE OF DRUGS ACT 1977 S15A

Abstract:

Criminal law - Evidence - Forensic evidence - Sampling procedures - Testing for presence of Controlled drug in sample of substance found on accused - Whether consideration of evidence properly left to jury by trial judge - Whether conclusion of jury reasonably grounded upon evidence.

Facts: the appellant was convicted in the Circuit Criminal Court of possession of a controlled drug with intent to supply at a time when the market value of the drug was 13,000 or more. A forensic scientist on behalf of the prosecutor conducted a sampling exercise on a portion of the substance found in the appellant’s possession and concluded, with a high degree of confidence, that the entire substance was the drug. The appellant appealed that conviction to the Court of Criminal Appeal on the basis that there had been no evidence on which a properly directed jury could come to the conclusion that the market value of the drugs was 13,000 or more.

Held by the Court of Criminal Appeal (Denham J, Herbert and Hanna JJ concurring) in dismissing the appeal that there had been sufficient evidence upon which a jury, properly directed, could safely and reasonably deduce or conclude, without speculation, that all of the material found was in fact the same as the material which, on analysis, was determined to contain the drug. Probability theory could be used to estimate from a properly representative sample, the probability of the presence of a particular substance in a greater amount of the same material, to such a degree of accuracy that the contrary could not reasonably be supposed.

DPP v Finnamore [2008] IECCA 99 applied.

Reporter: P.C.

1 This is an application by Alphonsus Connolly, the appellant, for leave to appeal against his conviction.

2 The appellant was convicted by the Naas Circuit Criminal Court, on Count No. 1, of having in his possession on the 16 ^th November, 2004, at Kill West, Kill, Co. Kildare, in the District Area of Naas, a controlled drug, being amphetamine, for the purpose of selling or otherwise supplying the drug to another and, at the time while the drug was in his possession, the market value of the controlled drug amounted to €13,000 or more.

3 The monetary amount of €13,000 was established by the Euro Changeover (Amounts) Act, 2001, wherein s.1(3) provided that from the 1 ^st January 2002 for each monetary amount mentioned in column (2) of Schedule 3 at a reference number there shall be substituted the amount mentioned in column (3), whenever such a monetary amount is referred to in an enactment mentioned in column (2) of Schedule 4. In Schedule 3 reference number 6 refers to the Irish pound amount of £10,000, and to the Euro amount of €13,000, and Schedule 4, in column 2, refers to the Misuse of Drugs Act, 1977, s.15A(1)(b).

4 The appellant had pleaded guilty at his trial to Count No. 2, to the offence of possession on the 16 ^th November, 2004, at Kill West, Kill, County Kildare, of a controlled drug being amphetamine for the purpose of selling or otherwise supplying it.

5 The appellant has brought this application for leave to appeal on a single ground, being:-

"The learned trial judge erred in fact and in law in not withdrawing the case from the jury on an application at the close of the prosecution case of no case to answer, made on the basis that there was no evidence on which a properly directed jury could come to the conclusion and be satisfied beyond a reasonable doubt that the market value of the drugs concerned was €13,000 or more."

6 Oral and written submissions were made on behalf of the appellant and on behalf of the Director of Public Prosecutions.

7 The appeal turns on whether, at the close of the prosecution case, there was no evidence on which a properly directed jury could come to the conclusion and be satisfied beyond reasonable doubt that the market value of the drugs was €13,000 or more.

8 At trial the burden remained on the State to satisfy the jury beyond reasonable doubt as to the market value of the drug in the possession of the applicant.

9 The evidence at trial established that the applicant had in his possession a red shopping bag containing ten sealed clear plastic bags each containing a white powder. Dr. Mary Casey, B.Sc.(ch), PhD. a forensic scientist, attached to the Forensic Science Laboratory located at Garda Headquarters in Dublin, initially analysed the powder in one of these clear plastic bags and found it to contain amphetamine, a controlled drug. She then weighed the powder in the entire ten clear plastic bags and ascertained that the total weight of the powder was 9.717kg. Dr. Casey told the court and the jury that the powder in a total of five of these ten clear plastic bags was analysed and that in each case it was found to contain amphetamine.

10 In cross examination Dr. Casey told the court and the jury that:-

"… the sample was carried out in accordance with an accredited laboratory procedure … if there were up to twenty items or twenty packs in the case, such as in this case there were ten, routinely half of those would be analysed so in this case five of these would be analysed so what I...