DPP v John Gallagher

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 28 July 2006
• Neutral Citation: [2006] IECCA 110
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 186 of 2002]
• Date: 28 July 2006

[2006] IECCA 110

THE COURT OF CRIMINAL APPEAL

Murray C.J.

O'Neill J.

Gilligan J.

186/02

DPP v GALLAGHER

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

JOHN GALLAGHER

APPLICANT

MISUSE OF DRUGS 1977 S15(A)(1)

CRIMINAL JUSTICE ACT 1999 S4

R v WHELAN 1972 NI 153

CAMPBELL v MIN FOR POSTS & TELEGRAPHS 1966 IR 69

HAUGHTON v SMITH 1975 AC 476

THEFT ACT 1968 S24(3) (UK)

CRIMINAL LAW:

Drugs offences;

CRIMINAL LAW:

Evidence

Possession - Whether evidence could establish possession - Meaning ofÇÿ possession' - No definition in Act - Minister for Posts and Telegraphs v Campbell [1966] IR 69 approved; R v Whelan [1972] NI 153 and R v Smith [1975] AC 476 distinguished -Misuse of Drugs Act 1977 (No 12), s 15A(1) - Criminal Justice Act 1999 (No 10), s 4 -Leave to appeal refused (186/2002 - CCA -28/7/2006) [2006] IECCA 110 People (DPP) v Gallagher

Facts: The Applicant was convicted in the Circuit Criminal Court pursuant to s. 15A(1) of the Misuse of Drugs Act, 1977, as amended. The Applicant contended, inter alia, that the evidence tendered by the prosecution did not establish that the Applicant was in possession of the drugs, that the trial judge had misdirected the jury as to the definition of possession and that he had erred in law in failing to hold that memoranda or statements from the accused were inadmissible.

Held by the Court of Criminal Appeal, in refusing leave to appeal against the conviction, that the word "possession" was a common word in the English language and well-known to the law and no misdirection had occurred. The trial judge was entitled to make the finding that statements contained in memoranda of interviews had been voluntary. At no stage during the trial was the admissibility of the memoranda of the various interviews objected to by the Applicant.

Reporter: E.F.

1 28th day of July, 2006 by Murray C.J.

Murray C.J.

2 The applicant, John Gallagher, was convicted at the Circuit Criminal Court on the 11 ^th October, 2002 of the offence of possession of a controlled drug for the purpose of selling or otherwise supplying same to another contrary to s. 15A(1) of the Misuse of Drugs Act, 1977 as inserted by s. 4 of the Criminal Justice Act, 1999. The offence was stated to have been committed on the 16 ^th November, 2001 in the County of Laois and concerned a quantity of the drug cannabis with a market value in excess of €12,697.00 (£10,000.00).

Grounds of appeal

3 The grounds of appeal, as advanced at the hearing of this application, may be summarised as follows:

4 (a) The evidence tendered and relied upon by the prosecution did not establish that the applicant had ever been, as a matter of law, in "possession" of the drugs in question.

5 (b) The learned trial judge misdirected the jury on the definition of possession, and in particular failed to direct them to "apply the most beneficial definition of that word or concept in law".

6 (c) The learned trial judge erred in law in failing to hold that the memoranda or statements taken from the accused were inadmissible in evidence having regard to his condition and period of detention which rendered them involuntary.

7 (d) The learned trial judge erred in law in admitting memoranda or statements arising from interviews of the applicant by the Gardaí having regard to the selective contents of the interviews and in failing to warn the jury adequately as to the inherent dangers of relying on such memoranda or statements in such circumstances or in circumstances where the full content was not recorded.

Background facts

8 On the 13 ^th October, 2001 Mr. O'Leary, a Customs and Excise Officer, was on duty at Dublin Port and went to what was known as the Eucon container compound. Acting in conjunction with a colleague he removed a shipping seal from a forty foot metal container in the compound, opened it and on initial examination found a number of loose wooden doors near the opening and a number of pallets containing doors and door frames behind them. It was a forty foot container and on further examination found that there were 13 pallets each containing a stack of 50 doors and frames. On further investigation it was found that the centre of the doors on a significant number of pallets had been hollowed out and packed with slabs of herbal cannabis. The container was unloaded for further investigation and a very substantial quantity of cannabis was found. Evidence was given at the trial that there were 13 pallets, five of which contained the cannabis. There were 3259 slabs of cannabis in total amounting to 4.6 tons. They were to be valued in the region of €1,000,000.00. The container was reloaded and moved to a customs and excise warehouse for further examination and investigation. Subsequently, on 15 ^th November, 2001, the container was brought back to the Eucon container compound and kept under observation by customs and excise officers. It had been resealed with a shipping seal which is a metal seal which can only be opened with bolt-cutters or similar instrument.

9 Observation of the container in the compound continued round the clock and at approximately 1:15 p.m. on 16 ^th November, 2001 a lorry tractor unit with trailer entered the compound and the customs officers observed the forty. foot container being loaded onto the trailer. At approximately 1:30 p.m. the trailer left the container compound and surveillance or observation of the tractor unit with its load was taken over by members of the Garda National Drugs Unit. There was evidence given by the lorry driver of that tractor unit as to how he had been engaged by the freight company for whom he worked to collect the tractor unit from the Eucon container compound and deliver it to a consignee in Portarlington. The address for delivery was in fact a car park in a shopping or business centre, known as Emerald Square, in Portarlington. The professional lorry driver, who is not alleged to be involved in any way in the offence, had on one previous occasion delivered a container to the same person at the same location. On that first occasion when he arrived in the car park in Portarlington the consignee was there and told the lorry driver that he would unload the container straight away. The lorry driver remained in the car park while the container was being unloaded so that he was able to bring the empty container away with him without having to return to collect it on a later occasion. He observed that the container contained a consignment of doors. On the second occasion, the occasion involving the container which contained the consignment of doors with the hidden quantity of cannabis, he arrived in the same car park, following the same instructions. He arrived at the car park at approximately 3:00 p.m. and was told that since it was a much bigger load it could not be unloaded straight away and that he should come back the following Sunday to collect the empty container. This he agreed to do and he left. He was at the car park for approximately 30 minutes on that occasion and the only person to whom he spoke was the person who identified himself as Mr. Whelan.

10 The lorry with the container had been followed and monitored by Detective Gardaí from the time it left Dublin Port. When it arrived at Emerald Square, Portarlington, at approximately 3:30 p.m. the handover of the container by the lorry driver to the man identified as Mr. Whelan was observed by the Gardaí. From then on the Gardaí kept the container under observation from concealed positions. The Garda evidence recounted how Mr. Whelan examined the rear of the container and the seal on it. It was also stated that another man came to the scene, later identified as a Mr. O'Mahony, and became involved in moving a forklift truck in the vicinity of the container and in the company of Mr. Whelan. Later at approximately 6:00 p.m. a Jeep arrived with two men in it. The passenger of this Jeep drove the forklift away and he was followed out of the car park by the Jeep. The forklift was brought back later by the same man followed by the Jeep. The forklift driver then left in the Jeep with its driver. The Garda evidence also recounted how between 7:30 p.m. and 8:00 p.m. a red-bodied Daf truck arrived. It was driven by the applicant, Mr. Gallagher. The container had not been opened at that stage. The applicant got out of the truck and spoke to Mr. O'Mahony. The Gardaí had observed that Mr. O'Mahony was having great difficulty in getting the forks of the forklift to operate and Mr. Gallagher appeared to be giving him assistance in endeavouring to get it to work. This was all prior to the doors of the container being opened. Shortly afterward the door of the container was opened by Mr. O'Mahony with the use of a bar which he used to break the metal seal. The applicant was present and assisting when this occurred. They were the only two men present at the time. This was between 8 and 8:30 p.m. After the container was opened another man arrived on the scene later identified as Jason Howe. He spoke to both the applicant and Mr. O'Mahony. After a period Jason Howe left the scene leaving the applicant and Mr. O'Mahony alone. At this point the container was open and the cargo of doors was visible. Following that Mr. O'Mahony, helped by the applicant, removed the loose doors which were at the front of the container onto the ground. When this was done Mr. O'Mahony got into the container and lay on top of a pallet with his leg dangling toward the exit. Having looked at what was in the rear of the container Mr. O'Mahony got down from the truck, he went to the forklift and drove it to the rear of the container. Helped by the applicant Mr. O'Mahony loaded the loose doors from the rear of the container onto the forklift....