DPP v Darragh Small, [2011] IECCA 4 (2011)

Docket Number:304/09
Judge:Denham J.
 
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THE COURT OF CRIMINAL APPEAL [C.C.A. No: 304/09] Denham J.Budd J.Hanna J.Application for a certificate pursuant to s.29(2) of the Courts of Justice Act, 1924, as substituted by s.22 of the Criminal Justice Act, 2006Between/The People (at the suit of the Director of Public Prosecutions)Prosecutor/RespondentandDarragh SmallDefendant/Applicant Ruling of the Court delivered on the 17th day of February, 2011, by Denham J. 1. On the 5th day of July, 2010 this Court delivered a judgment (ex tempore) on an application by Darragh Small, the defendant/applicant, referred to in this judgment as "the applicant", for leave to appeal against his conviction, of the 6th day of November, 2009, on a count of possession of a controlled drug with a value of €13,000 or more for the purpose of selling or otherwise supplying it to another contrary to s.15A and s.27 of the Misuse of Drugs Act, 1977 as amended, and the Misuse of Drugs Regulations, 1988 and 1993.2. Counsel on behalf of the applicant submitted that the judgment of this Court in refusing the applicant leave to appeal his conviction involves a point of law of exceptional public importance and that it is desirable in the public interest that the applicant should take an appeal to the Supreme Court; that in order for justice to be done the significant point of law involved in the decision of this Court ought to be considered and determined upon by the Supreme Court.3. Counsel on behalf of the applicant submitted that the point of law arising in this case is as follows:-"Whether the test as enunciated by Geoghegan J. in The People (D.P.P.) v. McKevitt [2009] 1 I.R. 525 and applied by this Learned Appeal Court is a legally permissible and appropriate test to be applied in cases involving 'patently unfair procedures' as distinct from cases involving 'an alleged risk of unfairness' arising by reason of the non-disclosure to the defence of specified material."4. The applicant was charged with possession of a controlled drug with a value of €13,000 or more for the purpose of selling or supplying it to another contrary to s.15A and s.27 of the Misuse of Drugs Act, 1977, as amended. He was charged that on the 2nd day of December 2005 at Bow Lane West, Kilmainham, Dublin 8, he had in his possession a controlled drug, diamorphine, for the purpose of sale or supply. There was evidence that three members of An Garda Síochána saw the applicant with a white Spar supermarket bag which he dropped, which contained heroin with a market value of over €13,000, being €97,000. The applicant claimed he had not seen the bag and that it was not his. There was evidence given that a key was thrown by the applicant onto the footpath. The applicant had been seen walking from the rear of a parked white van. A member of An Garda Síochána tried the key to see if it lit up any of the cars parked on the road. It did not. Nor did the key light up the white van. However, when the garda tried the key in the driver's door of the white van it opened and he found two rolls of tape inside the white van which looked similar to the tape in the white bag which the applicant had dropped. He felt the engine and it was warm. Using the key he drove the van to Kevin Street Garda Station.5. During the trial an issue arose as to the key. The defence had not been informed of a visit by members of An Garda Síochána to Mitsubishi Ireland. On the 4th November, 2009, day 3 of the trial, counsel for the applicant stated that on the 3rd November, 2009 the solicitor for the applicant was made aware by Mr. Halligan of the Mitsubishi Ireland Corporation that three gardaí had called to him nine months earlier and had shown him a key. Counsel stated that the gardaí had been told...

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