DPP v Finnamore

• Jurisdiction: Ireland
• Judge: Macken, J.
• Judgment Date: 01 July 2008
• Neutral Citation: [2008] IECCA 99
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 203 of,Rec. No. CCA 203/06
• Date: 01 July 2008

COURT OF CRIMINAL APPEAL

Macken, J.

Feeney, J.

McGovern, J.

Rec. No. CCA 203/06

[2008] IECCA 99

Between:

The Director of Public Prosecutions

Respondent

-and

Alan Finnamore

Applicant

Abstract:

Criminal law - Criminal procedure - Court of Criminal Appeal - Appeal against conviction - Guilty on retrial - Drugs charges - Eight years imprisonment - Whether packed drugs -

R. v Hill

- Whether Circuit Judge erred in law in failing to allow plea of autrefois acquis - Whether failure to withdraw s. 15A Misuse of Drugs Act 1977, as amended, charge was error of law

Facts: The applicant was found guilty of certain drugs charges on a retrial and was sentenced to eight years imprisonment. On appeal to the Court of Criminal Appeal, the applicant alleged that the Circuit Judge erred in law in failing to direct the jury to enter a plea in bar of autrefois convict of two counts previously convicted of and in failing to ensure that the prosecution prove possession on the part of the applicant of the drugs. The issue arose as to the application of s. 15A Misuse of Drugs Act, 1977, as amended.

Held by the Court of Criminal Appeal per Macken J. in rejecting the applicant made for leave to appeal. At no time in the course of the trial was any application made by the accused. The mischief claimed of had been cured. There was ample evidence of possession for the jury. The drugs found were valued at well in excess of the statutory minimum.

Reporter: E.F.

1 Judgment of the Court delivered the 1st day of July 2008 by Macken, J.

2 This is an application for leave to appeal against conviction brought on behalf of the applicant. He was found guilty on a retrial of certain

3 drugs charges on the 10th October, 2006, and sentenced to eight years imprisonment.

4 Although in the Grounds of Appeal filed in November, 2006, there are twelve grounds listed, it became clear in the course of the opening of the appeal that not all grounds were being pursued. The extant grounds can usefully be divided into the following:

• (a) The Circuit Court judge erred in law in failing to direct the jury to enter a plea in bar of autrefois convict on the two counts on which the applicant was re-arraigned, he having been previously convicted for possession of the same drugs arising out of the same events.

• (b) Having regard to the concession made by the prosecution that the applicant had not himself packed the drugs, or placed them in the holdall in which they were found, the prosecution failed to prove beyond reasonable doubt that the applicant had possession of the drug amphetamine, in the sense of having sufficient knowledge and control over it given the required standard of proof in a criminal trial.

• (c) The learned trial judge erred in law in failing to withdraw

5 the offence alleged under s.15A of the Misuse of Drugs Act 1977, as inserted by section 4 of the Criminal Justice Act 1999, in the absence of a proper forensic inquiry as to the purity content of the drug (amphetamine) and where evidence of the value of the materials in question was limited to the market value of saleable amphetamine on the street.

6 The Autrefois Convict Ground:

7 Turning to the first of the grounds, put forward as being the most important in this appeal, Mr. Aylmer, Senior Counsel, submitted on behalf of the applicant, that there were three legal issues to be considered. The first is an argument arising from the case of R v Hill [1993] 96 Cr. App. R. 456: secondly, can there be, in law, sequential trials in a case such as this: and finally, what are the consequences, if any, of the matter not having been raised in the course of the first appeal to the Court of Criminal Appeal.

8 The Background Facts

9 To understand the argument made on behalf of the applicant on this issue, it is necessary to set out the background facts to the charges, the first trial and the sentences imposed, and the decision of this Court made on the application in November, 2005, for leave to appeal from the convictions in the first trial. The background facts have been helpfully set out in detail in the written submissions filed on behalf of the applicant, and a brief summary is sufficient here.

10 The applicant, with his nephew, was seen in a wooded area in County Laois on the 19th February, 2003. The evidence tendered was to the effect that he was observed taking a bag from the car he was driving and placing it in a ditch in the wood. The car moved a short distance away and then parked facing the area where the bag had been placed. Shortly after this, gardaí approached the applicant and his nephew and arrested both of them, went to the ditch and found the bag, which in turn contained drugs, in this case, amphetamine. The applicant had been seen the previous day at the same place, which he admitted, but he gave an explanation as to why he was there, which was that he had intended purchasing drugs (cannabis with a value of three or four thousand euro) to assist his nephew to set up someone else for possession of drugs, and that a third party had "organised it all".

11 The applicant was charged with several offences, and pleaded not guilty. These are especially relevant to this first ground. He was charged with; (a) possession of controlled drugs, contrary to s.3 of the Misuse of Drugs Act 1977, (b) possession of controlled drugs for the purposes of sale or supply contrary to s.15 of the Act of 1977, and (c) possession of controlled drugs with an aggregate value of €13,000 or more for the purposes of sale or supply, contrary to s.15A of the Act of 1977 as inserted by s.4 of the Criminal Justice Act 1999.

12 He was convicted by a jury on the 12th October, 2004, on all three counts and sentenced on the 16th November, 2004, as follows:

• (a) on the s.15 charge, five years,

• (b) on the s.15A charge, ten years; and

• (c) on the s.3 simple possession charge, two years,

13 the first and third sentences to run concurrently with the 10 year sentence, and all to run from that date.

14 The applicant appealed against all three convictions and by a judgment delivered on the 21st November, 2005, this Court (McCracken, J.) quashed the convictions on the charges pursuant to s.15 and s.15A but upheld the conviction under s.3 of the Act of 1977 and the applicant served all, or substantially all, of the sentence under the latter conviction. In the context of this appeal, the Court notes that, according to the ex tempore judgment, the two convictions were set aside on a specific ground, namely that, having regard to comments made by the trial judge late in the evening on the length of time available to the jury to deliberate on these charges prior to being obliged to retire for the night, the court was not satisfied that the jury would not have felt under pressure to return verdicts on that same evening, and the above two convictions could not therefore be considered safe. Counsel for the respondent draws this Court's attention to the fact that the jury had already returned its verdict of guilty on the s.3 charge before the time issue arose. A retrial was ordered (in the language ordinarily used in that regard) in respect of the s.15 and s.15A charges.

15 Upon re-arraignment at the Circuit Criminal Court on the 2nd February, 2006, a plea in bar was entered on behalf of the applicant in respect of the extant charges. Following a two day hearing, the Circuit Court judge before whom that application was made refused the relief sought on the basis that the materials and submissions made did not in law support a finding of autrefois convict. No appeal or other application was made at that time, in respect of that finding, and the retrial proceeded in the usual way. The jury found the applicant guilty of the s.15A charge on the 10th October, 2006. No verdict was entered on the s.15 charge. He was sentenced to eight years imprisonment, the offence carrying, in the absence of special circumstances, a mandatory ten year sentence pursuant to legislation in that regard. The sentencing judge took into account the two year sentence imposed on the earlier s.3 possession of drugs conviction. The sentence in respect of the s.15A conviction runs from the 6th November, 2006, the date of the adjourned sentencing hearing on the retrial.

16 The Argument:

17 Overall on the first ground, Mr. Aylmer submits that this case is an example of the application of the fundamental principle of law that a person may not be tried or punished twice for the same or substantially the same offence, or for an offence arising out of the same set of facts, save in exceptional circumstances. It is further argued that there cannot be sequential trials for offences on an ascending scale of gravity arising out of the same events.

18 The R v Hill Ground:

19 In R v Hill the accused had been charged and found guilty on pairs of alternative counts, ranging from mere possession of drugs to possession with intent to supply (the same drugs). In the Court of

20 Appeal it was argued, and conceded by the Crown, that what should have happened was that verdicts should have been delivered on what were the more serious counts first and if the jury found the accused guilty on the more, or most, serious charge, the jury should then not have been required to deliver any verdict on the lesser count(s). Since this had not occurred in that case, the relevant lesser counts were quashed by the Court of Appeal.

21 Applying that same approach to the circumstances of the present case, counsel for the applicant contends that in the first trial, wrongly, the prosecutor and the trial judge both failed to inform the jury that since the three counts all arose from a single incident of possession of drugs, but were "varying in degree", while entitled to convict on the lesser charges, if convicted on the most serious charge, they should...