DPP v Finnegan & Morrison
| Jurisdiction | Ireland |
| Judge | Macken, J. |
| Judgment Date | 28 July 2011 |
| Neutral Citation | [2011] IECCA 47 |
| Court | Court of Criminal Appeal |
| Date | 28 July 2011 |
[2011] IECCA 47
COURT OF CRIMINAL APPEAL
Macken, J.
Herbert, J.
O'Keeffe, J.
MISUSE OF DRUGS ACT 1977 S15(A)
CRIMINAL JUSTICE ACT 1999 S2
DPP v SMYTH 2010 3 IR 688
DPP v BYRNE & ORS 1998 2 IR 417
R v WARNER 1962 2 AC 256
R v WRIGHT 1976 62 CAR 169
DPP v HOURIGAN & O'DONOVAN UNREP CCA 19.3.2004 2004/15/3488
R v GALBRAITH 1981 1 WLR 1039
DPP v GALLAGHER UNREP CCA 28.7.2006 2006/18/3742 2006 IECCA 110
DPP v M 1994 3 IR 306
DPP v MCMANUS UNREP CCA 12.4.2011 2011 IECCA 32
MISUSE OF DRUGS ACT 1977 S29(2)
MISUSE OF DRUGS ACT 1971 S28(3) UK
MISUSE OF DRUGS ACT 1977 S29(2)(A)
ARCHIBOLD CRIMINAL PLEADING, EVIDENCE AND PRACTICE 1997 ED
MISUSE OF DRUGS ACT 1977 S29
DPP v CRONIN 2004 4 IR 329
DPP v MADDEN 1977 IR 336
DPP v NOONAN 1998 2 IR 439
CRIMINAL LAW
Evidence
Possession of drugs - Whether physical possession sufficient to establish mens rea - Whether prosecution required to prove animus possedendi - Whether charge to jury on possession adequate - Failure to raise requisition following re-charge - Whether charge to jury unbalanced or favourable to prosecution - Obligation to raise issue with trial judge -People (DPP) v Smyth [2010] 3 IR 688 approved; People (DPP) v Byrne & ors [1998] 2 IR 417, People (DPP) v Warner [1962] 2 AC 256, R v Wright (1976) 62 CAR 169, R v Galbraith [1981] 1 WLR 1039, People (DPP) v M [1994] 3 IR 306 and People (DPP) v Cronin [2004] 4 IR 329 applied; People (DPP) v Hourigan & Donovan (Unrep, CCA, 19/3/2004), People (DPP) v Gallagher [2006] IECCA 110 (Unrep CCA 28/7/2006), People (DPP) v Madden [1977] IR 336 and People (DPP) v Noonan [1998] 2 IR 439 followed - Misuse of Drugs Act 1977 (No 12), ss 15A and 29 - Criminal Justice Act 1999 (No 10), s 2 - Misuse of Drugs Act (UK) 1971 s28(3) - Appeal refused (229/2009 - CCA - 28/7/2011) [2011] IECCA 47
People (DPP) v Finnegan
Judgment of the Court delivered on the 28th day of July, 2011 by Macken, J.
This is an application for leave to appeal by each of the defendants against their conviction for possession of drugs contrary to s.15A of the Misuse of Drugs Act 1977 as inserted by s.2 of the Criminal Justice Act 1999. They were both charged with possession of heroin for sale of supply, with a street value in excess of €13,000 (€43,000 plus). On conviction each was sentenced to 12 years, backdated to the 4 th September, 2008. A separate application for leave to appeal against sentence is deferred until delivery of this judgment.
In this appeal, each applicant is separately represented. Not all of the grounds of appeal, as lodged, were common to both, although, as will be clear in a moment, that changed at the commencement of the hearing of the application. As to the first defendant, Aidan Finnegan, in his grounds for leave he raises essentially four issues, which can be briefly summarised as follows:
(a) An allegation (based on grounds 1, 2 and 5) that the learned trial judge failed to grant an application for a direction at the close of the prosecution case arising from the failure of the prosecution to establish "possession" of the drugs in question, and thereafter failed to charge the jury adequately, or answer the jury's question properly, on this issue;
(b) An allegation, based on grounds 3 and 4, that the summing up by the learned High Court judge was unbalanced, impartial and unfair.
(c) Counsel for the prosecution allowed the jury to infer that both defendants were wearing gloves when handling the drugs, whereas the two witnesses to the alleged handling did not say anything to support such a contention, and were not questioned on the issue.
(d) Pre-trial adverse publicity, in particular as a background to the impartiality of the summing up.
These last two grounds (c) and (d), not in the Notice of Leave to Appeal, are in the written submissions, indicated as being "additional" grounds.
As to the second applicant, his application for leave encompasses the following grounds, briefly described as follows: the verdict was unsafe because of:
(a) The failure of the learned trial judge to grant a direction on the possession ground, similar to the above, and thereafter to charge the jury correctly as to the legal meaning of possession;
(b) The failure of the judge to instruct the jury as to how the legal definition of possession should apply to the facts of the case in issue.
In relation to (c) and (d) above, by Notice of Motion dated the 8 th March, 2010 application was made on behalf of the first named applicant for leave to rely on the above two additional grounds, based on the affidavit of James Thompson, solicitor, sworn on the 8 th March, 2010. However, at the commencement of the hearing of this application for leave, junior counsel for the first named applicant, Ms. Frayne, informed the Court that that applicant was withdrawing the motion to add the two further grounds. The net result is that the two applications for leave to appeal now rely on substantially the same primary grounds, and are dealt with on that basis.
According to the evidence tendered, the following is the background to the events leading up to the prosecution of the applicants. On the relevant date, and apparently acting on confidential information, the gardai positioned themselves in a wooded area near Glanmire, County Cork at a housing estate, Brook Lodge. Both applicants, who were not from the area originally, arrived separately at the housing estate. They were accompanied, at a certain point, by the girlfriend of one of them and were joined by a friend or acquaintance of the second named applicant, who lived in, or had access to, a house in that estate. While that person, who subsequently pleaded guilty to possession of drugs, went to a local shop with the girl, the two applicants went to the wooded area close by.
There, according to the evidence of the gardai, the first named applicant, Finnegan, bent down and took a white bag from the undergrowth, took a blue box/container out of the white bag, and passed it to the second named applicant, Morrison, who took it. He, in turn, opened the box/container, and put his hand into it, removed his hand, closed the box, put it back in the bag held by Finnegan, who then replaced it in the undergrowth. They both then left and returned to the house in the estate, where, after a short while, they got into a car, and were about to leave the estate when they were stopped by gardai and arrested. Gardai had, in the meantime, gone to where the white bag had been replaced, removed the box and in it found a package wrapped with duct tape, which they opened with a key and confirmed that it contained a controlled drug. When the drug was analysed it was found to be diamorphine, that is, heroin, having a street value, according to the evidence, in excess of €43,000.
The defence of both applicants was the same: it was all a tissue of lies, made up by the gardai. They had never gone to where the drugs were found: they had not touched the bag or the container, or the contents of it, and they were being "stitched up". Apart from this defence, they also challenged the case made by the prosecution, including on the basis that no photographs were taken at the scene where the drugs were found, an important matter it was argued, in light of the nature of the growth at the time of year. They also challenged the absence of tests for fingerprint or DNA evidence on several items, including on plastic gloves found on the first named applicant, and other matters which will be dealt with below. They did not raise any other defence.
The first question which arises on the application is whether or not the learned trial judge was correct to refuse to grant a direction, when sought, on the basis that the prosecution had failed to establish that either Finnegan or Morrison possessed the drugs and also intended to do so. The second question is whether the charge to the jury on the issue of possession was deficient, as claimed. Since both these grounds really rely on similar or closely related arguments, it is appropriate to deal with the arguments on the issues together. Separately, the Court will deal with the allegation of bias and unbalance in the charge raised by the first applicant.
On the question of the direction, the evidence before the Court on behalf of the prosecution, given, inter alia, by Detective Sergeant O'Brien, was that he personally witnessed both applicants walking across his line of vision from where he was positioned in the woodland area mentioned above. He was able to identify them. He recognised the first named applicant, but he did not recognise the second applicant, whom he identified in the course of trial. His evidence was that the two men had travelled about 20 metres to the left of his position and stopped, that Aidan Finnegan had bent down and removed a large white bag from where it was concealed. He said he saw Aidan Finnegan remove a blue coloured container from the bag, which container he then handed to the second applicant who took it, opened it and placed his right hand into it, although the witness could not see whether Alan Morrison placed anything into, or removed something from the blue container. Morrison then closed the box, replaced it in the white bag (held by Aidan Finnegan) and Finnegan replaced the white bag in the undergrowth. They both then left and returned together to Brook Lodge Estate. All the foregoing was strongly challenged in evidence and the garda witnesses were also challenged on the...
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