DPP v Keith Murray

• Jurisdiction: Ireland
• Judge: GEOGHEGAN J.
• Judgment Date: 10 March 2005
• Neutral Citation: [2005] IECCA 31
• Date: 10 March 2005
• Court: Court of Criminal Appeal
• Docket Number: 72/04

[2005] IECCA 31

THE COURT OF CRIMINAL APPEAL

Geoghegan J.

Lavan J.

de Valera J.

72/04

DPP v MURRAY

THE PEOPLE THE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

KEITH MURRAY

Applicant

MISUSE OF DRUGS ACT 1977 S15(A)

CRIMINAL JUSTICE ACT 1999 S4

1 JUDGMENT of the Court (ex tempore) delivered the 10th day of March 2005 by GEOGHEGAN J.

GEOGHEGAN J.

2 The position about this appeal is that Mr. Clarke, for the applicant, has made two points, one relating to proper proof of the value of the drugs and the second relating to an alleged gap in the proofs and that the regulations referred to in s. 15A were not proved. In relation to the second point, judgment has been reserved in a similar case by this court in a court presided over by Mrs. Justice McGuinness. Mr. Gillane, counsel for the Director of Public Prosecutions, concedes they are almost the same. He does make a small distinction between the two of them but basically, it would be quite wrong for this court to give judgment on that second point pending the reserved judgment that will come from the court. I do not think that that judgment is expected this term, I might be wrong about that but I do not think so. Obviously, that aspect of our judgment would have to be postponed but that does not mean that we cannot give judgment on the other ground of appeal and we propose to do so.

3 We are absolutely satisfied that there is no valid basis for this ground of appeal. I should say that the main point being taken is that the evidence was garda evidence, a garda who was involved in drug work. He gave evidence of value, but on cross-examination, he told Mr. Clarke, counsel for the applicant, that the precise figures came from a price list. Mr. Clarke says that is hearsay and that there is no proper direct evidence of the value of the drugs. Mr. Clarke relies to some extent on an English case ofHogg reported in [2003] 2 Cr. App. Cas. That was a case in which value evidence by a policeman was given. It was upheld as sufficient but it does not appear that anything can be either proved or disproved from it as to what the requirements are. The case was quite different. The only thing of interest emerging from Hogg's case is that certainly it would appear that the Court of Appeal, Criminal Division in England and the original trial judge, the recorder, who tried it regarded the police evidence as expert evidence. This was a submission that Ms. O'Leary, who was at that time the counsel for the Director of Public Prosecutions, made to Judge Kennedy at the trail. He expressed surprise at that because he did not regard it as expert evidence. To some extent it may be that this is where the problem has arisen, but the court would take the view that that is largely a semantic argument. Judge Kennedy's approach and his rulings both on the application for a direction and how he proceeded with the case in relation, for instance, to questions that were asked by the jurors was perfectly correct and it may be that in his own mind he was using the expression "expert evidence" in a somewhat more restricted fashion than was necessary.

4 It is not necessary for this court to decide whether this type of garda evidence is expert evidence or not in all the circumstances, but we would not rule out that it should properly be characterised as expert evidence. It does not seem to make all that much difference because there is no doubt that, as Mr. Gillane has pointed out, s. 15A which is inserted by s. 4 of the Criminal Justice Act,1999 the new s. 15A of the Misuse of Drugs Act, 1977 provides as follows:

"If the court is satisfied that a member of the Garda Síochána or an officer of customs and excise has knowledge of the unlawful sale or supply of controlled drugs, that member or officer, as the case may be, shall be entitled in any proceedings for an offence under this section to be heard and to give evidence as to -"

(a) the market value of the controlled drug concerned, or

(b) the aggregate of the market values of the controlled drugs concerned."

5 Mr. Gillane went on...