DPP v Fitzpatrick

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeFinnegan J.
Judgment Date26 Apr 2010
Neutral Citation[2010] IECCA 30

[2010] IECCA 30

COURT OF CRIMINAL APPEAL

Finnegan J.

Herbert J.

O'Keeffe J.

91/09
DPP v Fitzpatrick
Conviction
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
.v.
STEPHEN FITZPATRICK
APPLICANT

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1984 S6

MISUSE OF DRUGS ACT 1977 S3

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S6(3)

AG v DUFFY 1931 IR 144

CRIMINAL LAW

Trial

Practice and procedure - Severing of indictment - Drugs offences - Appeal - Large quantity of drug in bag and small quantity of same drug on person - Whether refusal of separate trials on separate counts prejudiced accused - Jury - Chain of evidence - Judge's charge on expert evidence - Attitude of trial judge to counsel for accused - Fairness of trial - Discretion of trial judge in control of court - Attorney General v Duffy [1931] IR 144 considered - Criminal Justice (Administration) Act 1924 (No 44), s 6(3) - Appeal refused (91/2009 - CCA - 26/4/2010) [2010] IECCA 30

People (DPP) v Fitzpatrick

Facts The applicant sought leave to appeal against his sentence of five years imprisonment with two years suspended on conviction for an offence of possession of cannabis resin for sale and supply contrary to s. 15 of the Misuse of Drugs Act, 1977 as amended. It was submitted that the learned trial judge erred by not backdating the sentence to take into account a period or periods of time for which the applicant was in custody solely in respect of this matter. It was also submitted on behalf of the applicant that the learned trial judge made remarks in the course of sentencing which seemed to suggest that he took into account the manner in which the applicant defended these proceedings and the evidence which he gave. In particular, the learned trial judge stated that sympathy which might otherwise be extended to the applicant in relation to his personal circumstances, having regard to his conduct in the case, could not now be extended to him. The applicant also relied on his personal circumstances and reports that were before the court.

Held by the CCA; Finnegan J. (Herbert, O'Keeffe JJ) in exercising its discretion not to interfere with the sentence imposed: That the sentence in fact imposed was one that was if anything on the lenient side for an offence of this nature, the value of the drugs being €6,800 and the applicant having fifteen previous convictions. While it may be that some errors were made by the learned trial judge, the overall effect of the sentence was that it was an appropriate one, if anything at the lower end of the scale for offences of this nature. It was open to the court, notwithstanding that there had been an irregularity in the course of sentencing, if it was satisfied that there had been no injustice caused not to interfere with the sentence. In this case, if the court were to interfere with the sentence at all it might have been inclined to increase it.

Reporter: L.O'S.

1

Judgment of the Court (ex tempore) delivered on the 26th day of April 2010 by Finnegan J.

2

Stephen Fitzpatrick, the applicant in this case, came before the Circuit Criminal Court on four counts. Count 1 was a count of possession of cannabis resin for sale or supply contrary to section 15 of the Misuse of Drugs Act 197712 as amended by the Misuse of Drugs Act 198418 section 6. The second, count, 2 related to possession of cannabis resin contrary to section 3 of the Misuse of Drugs Act 197712 as amended by the Misuse of Drugs Act 198418 section 6. There were two additional accounts, one a count under section 15 of the said Act and one a count under section 3 of the said Act.

3

The circumstances were that at St. Fergal's Road, Cappagh Road, Finglas, on the 1 st August 2005 the applicant was approached by two Gardai arriving in a car from one end of St. Fergal's Lane and one Garda on foot from the other. The evidence was that all three Gardai saw dispose of a bag over a fence or over a gate and into a field. That bag, when found, contained what are described four nine bars of cannabis resin. Secondly on a search of the applicant there was found on him a very small quantity of cannabis resin, some twenty grams. The first two counts on the indictment on which he came before the court related to the four nine bars. The second two counts related to the small amount which was found on him personally.

4

What happened originally was that there were two counts only, those counts being the first two counts on the indictment, those counts being intended to refer both to the quantity of cannabis resin found in the bag recovered from the field and to the small quantity of cannabis resin found upon the applicant's person.

5

Very shortly before the trial the Director of Public Prosecutions considered it appropriate to separate the two quantities of cannabis resin. This court is satisfied that it was wise and in the interests of justice that this should be done. If the applicant had been found guilty on the indictment as originally framed it would not be clear whether he was found guilty in respect of the larger quantity or the smaller quantity of drugs. Accordingly it was appropriate that there should be an alteration in the terms of the indictment. The amendment did not prejudice the applicant and made matters clearer and more convenient for the jury. However arising out of that alteration to the indictment counsel on behalf of the applicant applied to the learned Circuit Court judge to sever the indictment. In other words that there should be two separate trials, a trial on counts 1 and 2 and a separate trial on a different occasion before a different jury in respect of counts 3 and 4.

6

As to the authority for the court to make such an order reliance is placed on the Criminal Justice (Administration) Act 192444 section 6 subsection 3 which provides as follows:-

"Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person to be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment."

7

Reliance is also to be placed on The Attorney General .v. Duffy [1931] I.R. 144. It is important to recall that there is statutory authority for adding any number of charges into an indictment. It may be that in so doing unfairness would be caused to an accused person and in that case the...

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