DPP v Kelleher and Kelleher

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeBirmingham P.
Judgment Date07 Feb 2019
Neutral Citation[2019] IECA 32
Docket Number[329/16]

[2019] IECA 32

THE COURT OF APPEAL

Birmingham P.

Birmingham P.

Edwards J.

Kennedy J.

[329/16]

[11/17]

BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
AND
ANTHONY KELLEHER
APPELLANT
AND
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
AND
GERARD KELLEHER
APPELLANT

Conviction – Drug offences – Admission of evidence – Appellants seeking to appeal against conviction and sentence – Whether the judge was entitled to admit evidence

Facts: The appellants, Messrs Kelleher, on 8th November 2016, following a lengthy trial in the Dublin Circuit Criminal Court, were convicted of offences contrary to s. 15A of the Misuse of Drugs Act. Subsequently, on 21st December 2016, Mr G Kelleher was sentenced to a term of 12 years imprisonment and Mr A Kelleher to a term of 10 years imprisonment. Mr G Kelleher had been convicted on counts relating to two different quantities of drugs, while Mr A Kelleher had been convicted in relation to a single quantity. Both appellants appealed to the Court of Appeal against conviction and sentence. The written submissions on behalf of the appellants focused on the fact that the prosecution was permitted to adduce evidence of the finding of a large sum of cash on Mr A Kelleher. It was said that the judge was in error in allowing evidence of the cash to be given. This was in a situation where neither accused was charged with an offence specific to the cash, such as money laundering, and it was said that in those circumstances, it did not have a degree of relevance that would justify admission. It was also said that the evidence regarding the finding of cash and then how it was dealt with at trial must have been confusing for the jury. It was said on behalf of the appellants that the jury required careful assistance on that issue from the trial judge. It was said that the trial judge’s charge was inadequate and so inadequate as to call into question the safety of the conviction. Counsel on behalf of the appellants invited the Court to approach the case on the basis that there was a disparity in how the Court dealt with his crimes and how the Circuit Court, and as it happened, it was the same Circuit Judge, dealt with a Mr Byrne. It was submitted that the disparity was such as to constitute exceptional circumstances.

Held by the Court that the judge was entitled to admit the evidence. The Court held that the finding of the cash was something that might be regarded as significant by the jury; it was a piece of circumstantial evidence to be weighed in the balance alongside the other evidence in the case. The Court was not persuaded that any very particular assistance to the jury was, in the circumstances of the case, required; the jury would have seen the prosecution introduce evidence of the finding and would have seen the prosecution place it as part of the jigsaw, but they must also have been fully aware that nobody was suggesting that the cash found could be positively linked to drugs activity. The Court noted that the long-established jurisprudence of the Court indicated that the failure to raise the issue of the trial judge’s charge at trial and the failure to requisition would be fatal. The Court held that it had not been persuaded that the verdict was unsafe or that the trial was in any way unsatisfactory. The Court dismissed the appeal against conviction.

The Court held that it could not disagree with the analysis of the Circuit Court Judge that there was no basis for departing from the statutory presumptive minimum. The Court held that it had not been able to conclude that there was any error or principle on the part of the sentencing judge. The sentences imposed were not, in the Court’s view, inappropriate. The Court dismissed the appeal against sentence.

Appeal dismissed.

JUDGMENT (Ex tempore) of the Court delivered on the 7th day of February 2019 by Birmingham P.
Conviction
1

On 8th November 2016, following a lengthy trial in the Dublin Circuit Criminal Court, both appellants were convicted of offences contrary to s. 15A of the Misuse of Drugs Act. Subsequently, on 21st December 2016, the appellant, Gerard Kelleher, was sentenced to a term of 12 years imprisonment, and the appellant, Anthony Kelleher, to a term of 10 years imprisonment. Gerard Kelleher had been convicted on counts relating to two different quantities of drugs, while Anthony Kelleher had been convicted in relation to a single quantity. Both appellants have now appealed against conviction and sentence and the Court will deal first with the conviction aspect of the appeal, but before doing so, feels bound to express its dismay that a trial that was as straightforward and clear-cut as this one was, could have taken anything like as long as the trial did. It is the case that the jury returned its verdict on the 16th day of the trial.

2

The background to the case is to be found in events that occurred on 7th December 2012. The Gardaí were in possession of information that suggested that a particular individual, Karl Byrne, who, at the request of the defence, was referred to at trial throughout as KB, would engage in certain drugs-related activity on that day. As a result, a significant surveillance operation was put in place involving a number of members of the Gardaí. This saw a minivan, driven by KB, trailed and followed from the inner city across and through the city. Shortly before 11am, that minivan pulled up at Swiftwood Estate, which is a gated community near Citywest in Dublin. Gardaí who were maintaining surveillance on Mr. Byrne record that they saw him on his phone and that he then gained access to the gated area. Within the estate, two areas or units emerged as areas of particular interest to Gardaí – No. 3, which was described at trial as the drugs safe house, storehouse might be a better term, and No. 20, where Anthony Kelleher resided. Counsel for the prosecution says in written and oral submissions that the case they mounted against the two appellants involved two elements; one, observations from Gardaí who were carrying out the surveillance, and two, evidence of what was recovered from searches of the accused, now appellants, from examination of their phones and from the vehicles that they were associated with as well as a transit van into which drugs were loaded as well as examinations carried out at Nos. 3 and 20.

3

Three Gardaí in particular were involved in carrying out surveillance at Swiftwood Estate. Detective Garda Michael Ormond, who had been involved in the surveillance of KB as he made his way from the city centre, having gained entrance to the estate, went to a footbridge. According to Detective Garda Ormond's evidence, from there, he could observe No. 3. He saw the appellant, Gerard Kelleher, walking down and greeting Karl Byrne, and having greeted him, letting him into No. 3. Gerard Kelleher opened the door with the keys that he had and both men entered. After Gerard Kelleher and Karl Byrne came out, Gerard Kelleher walked back in the direction from which he had come. Karl Byrne reversed his van back towards No. 3 and then went into No. 3 and emerged from there with a number of boxes. These were white with a logo and, according to Detective Garda Ormond, he observed Karl Byrne place ten such boxes into the van. Subsequently, the van was followed from the scene, and some distance away, was intercepted and examined, and each of the boxes that had been seen to be placed within it contained cannabis. The cannabis in the van was some 20.5 kilos in weight and the trial Court was told that the value of the drugs in that van was some €413,260. This cannabis was the subject of Counts 1, 2 and 3 laid against the appellant, Gerard Kelleher. This cannabis was the first of the two consignments of drugs to which reference has been made.

4

Surveillance remained in place and Detective Garda Ormond observed Gerard Kelleher coming out of No. 20. Thereafter, Gardaí then took up positions in order to be able to observe Nos. 3 and 20. No. 20 was now a place of interest.

5

Approximately an hour and a half after the incident involving the van driven by KB, Detective Garda Ormond saw Gerard Kelleher drive a large white transit van down to No. 3 where he met with Anthony Kelleher who had walked down from No. 20. Both appellants were observed by Gardaí entering No. 3 before coming out and then loading seven cardboard boxes which had come from the house into the white transit van. Gerard Kelleher then drove the white transit van to another area of the estate, past No. 20, while Anthony Kelleher walked back in the direction of No. 20. Gerard Kelleher was then observed going to a Hyundai Santa Fe Jeep-style vehicle and that vehicle was then seen to leave the estate soon thereafter and that vehicle was followed. The vehicle was trailed and it was intercepted when it had stopped at a garage, a Topaz garage, at Brownsbarn on the Naas road. When Gardaí approached the vehicle, the driver was Anthony Kelleher and Gerard Kelleher was the passenger. Back at the estate, the transit van was examined, and, in particular, the seven boxes that had been seen to be placed in it were examined. These boxes, too, contained cannabis and the Court heard that the value of this cannabis was €276,000.

6

In addition to the evidence of Detective Garda Ormond, there was also evidence from Detective Garda Crotty and Detective Garda Grimes of the surveillance team as to what they observed. Detective Garda Crotty had positioned himself in the back of a van with tinted rear windows which meant that he could look out and observe, but he himself while in the van could not be seen. He parked directly opposite No. 3 with a view to monitoring the house. He observed Gerard Kelleher arrive at No. 3 in the white transit van. He also identified a second male arriving on foot. However, on foot of a ruling from the trial Judge,...

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