DPP v Lindsey

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 23 February 2004
• Neutral Citation: [2004] IECCA 6
• Court: Court of Criminal Appeal
• Date: 23 February 2004

[2004] IECCA 6

COURT OF CRIMINAL APPEAL

Denham J.

White J.

O'Leary J.

[C.C.A. NO. 107 OF 2002]

DPP v. LINDSEY

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

DUANE LINDSEY

APPLICANT

Citations:

MISUSE OF DRUGS ACT 1977 S15(1)

MISUSE OF DRUGS REGS 1988 SI 328/1988 ART 4(1)(B)

MISUSE OF DRUGS ACT 1977 S5

MISUSE OF DRUGS ACT 1977 S3

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2(F)(II)

CRIMINAL PROCEDURE ACT 1993 S10

JURIES ACT 1976 S17(4)

R V THORPE UNREP CA CRIM 9.10.2000 (UK)

BLACKWELL V ORS 1992 CAR 625

CRIMINAL PROCEDURE ACT 1993 S10

DPP V J (P) 2004 1 ILRM 220

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7(2)

AG V CRADDEN 1955 IR 130

AG V WILLIAMS 1940 IR 195

R V BASKERVILLE 1916 2 KB 658

PEOPLE, AG V TRAVERS 1956 IR 110

AG V MOORE 1950 IR JUR REP 45

Abstract:

Criminal law - Corroboration - Appeal against conviction - Failure to warn jury in absence of corroboration - Criminal Procedure Act 1993, s. 10

The applicant applied for leave to appeal against his conviction for drugs offences. The first ground concerned the trial judge’s failure to discharge the jury when it became apparent that a juror had concern about his involvement in the case. The second ground related to the alleged failure by the judge to adequately apply the provisions of the Criminal Procedure Act 1993 in relation to corroboration.

Held by the Court of Criminal Appeal in treating the application for leave as the hearing of the appeal, granting the appeal and ordering a re-trial that the meaning of corroboration and how a lack of corroboration might affect a jury’s view of the evidence was not explained to the jury. The mandatory requirement under the legislation was not complied with.

Reporter: R.W.

1 Judgment of the court delivered by Denham J. on the 23rd day of February, 2004.

2 1. This is an application for leave to appeal against conviction and sentence by Duane Lindsey, the applicant, and hereinafter referred to as the applicant.

3 2. The applicant appeared before Waterford Circuit (Criminal) Court on the 29th May, 2002, on four counts, being:

Count No. 1

4 Statement of Offence

5 Possession of a controlled drug for the purpose of supplying the same to another, contrary to Section 15 (1) of the Misuse of Drugs Act 1977and to Article 4 (1) (b) of the Misuse of Drugs Regulations 1988 as made under Section 5 of the said Act of 1977.

6 Particulars of Offence

7 Duane Lindsey on the 27th day of November 1999 in the County of Waterford had in his possession the controlled drug commonly known as Ecstasy, for the purpose of unlawfully supplying the same to another.

Count No. 2

8 Statement of Offence

9 Possession of a controlled drug, contrary to Section 3 of the Misuse of Drugs Act 1977.

10 Particulars of Offence

11 Duane Lindsey on the 27th day of November 1999 in the County of Waterford had unlawfully in his possession the controlled drug commonly known as Ecstasy.

Count No. 3

12 Statement of Offence

13 Possession of a controlled drug for the purpose of supplying the same to another, contrary to Section 15 (1) of the Misuse of Drugs Act 1977and contrary to Article 4 (1) (b) of the Misuse of Drugs Regulations1988 as made under Section 5 of the said Act of 1977.

14 Particulars of Offence

15 Duane Lindsey on the 27th day of November 1999 in the County of Waterford had in his possession the controlled drug amphetamine, for the purpose of unlawfully supplying the same to another.

Count No. 4

16 Statement of Offence

17 Possession of a controlled drug, contrary to Section 3 of the Misuse of Drugs Act 1977.

18 Particulars of Offence

19 Duane Lindsey on the 27th day of November 1999 in the County of Waterford had unlawfully in his possession the controlled drug amphetamine.

20 3. On the 30th May, 2002, he was convicted on all four counts by a majority verdict of 10 to 2.

21 4. The applicant was sentenced to six years imprisonment on 31 ^st May, 2002, to run from 20th February, 2002, on Counts No. 1 and No. 3 (the two counts relating to possession of a controlled drug for sale or supply), the two other Counts (No. 2 and No. 4) were taken into consideration.

22 5. The applicant has applied for leave to appeal against the said conviction on the following grounds:

23 1. That the trial judge erred in law and in fact in failing to discharge the jury when it had become apparent that a juror had sufficient concern about his involvement in the case and had brought the fact to the attention of the court.

24 2. That the trial judge erred in law and in fact in failing to make sufficient enquiry into the concerns of the juror.

25 3. That the trial judge erred in law and in fact in holding that the defendant had been lawfully detained under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996.

26 4. That the trial judge erred in law and in fact in finding that the first extension of the defendant's detention was lawful.

27 5. That the trial judge erred in law and in fact in finding that the second extension of the defendant's detention was lawful.

28 6. That the trial judge erred in law and in fact in holding that the provisions of section 2 sub-section 2 (f) (ii) had been complied with.

29 7. That the learned trial judge erred in law and in fact in ruling admissible the Statement of Admission (Exhibit 3) and the memorandum of interview (Exhibit 13).

30 8. That the trial judge erred in law and in fact in ruling that the conduct of the interviewing Gardai had been proper.

31 9. That the trial judge erred in law and in fact in ruling that there had been no breach of the judge's rules.

32 10. That the finding of the jury, namely guilty in respect of all counts was perverse as it had been explained to them during the course of the trial that counts 3 and 4 were alternatives to counts 1 and 2. The failure of the jury to distinguish between the counts renders the conviction unsafe.

33 11. That the conduct of the trial was generally unsatisfactory and that, in particular, the trial judge exhibited prejudice towards the accused in particular during the course of the trial within a trial.

34 6. The applicant has also indicated that he wishes to appeal against the severity of sentence. This application was adjourned by the court.

35 7. Written submissions were filed by counsel on behalf of the applicant and on behalf of the Director of Public Prosecutions.

36 8. In oral submissions Sean Gillane B.L., counsel for the applicant, indicated that his submissions would be on four bases. These were: (i) the juror; (ii) his submission of a failure to warn the jury of the absence of corroboration pursuant to s. 10 of the Criminal Procedure Act, 1993; (iii) a submission that the verdict was perverse; and (iv) a submission that the detention was illegal.

9. Decision

9.1. The Juror

37 The first matter for consideration is that appearing in number 1 and 2 of the grounds of appeal. At the commencement of the trial, a juror expressed concern, after the jury was empanelled and prior to the opening of the case, arising from the fact that he worked in Tramore and that he had seen the applicant.

38 The transcript provides the following:

"Jury empanelled."

39 Judge sends jury to jury room to select someone to act as foreman.

40 Mr. Teehan: I understand there is a problem with one of the jurors, my lord. Perhaps that difficulty should be explained to your lordship.

JURY BROUGH OUT TO COURTROOM.

Judge:	Why is there a problem?
Juror:	Its just that I work in Tramore.
Judge:	Work in Tramore. And how is that a problem?
Juror:	I don't actually know the man but I work in Tramore, and I've seen the man.
Judge:	I don't see that as a problem.
Judge:	And you brought that to my attention, is it? I thank you for that.I don't see that as a problem.
Mr. Maher:	I have taken instructions from my client and he does see a problem.
Judge:	Your client saw the juror being called and had an opportunity of objecting but he didn't do so.
Mr. Maher:	Could I raise the matter in the absence of the jury.

JUDGE ASKED JURY TO RETIRE. JURY RETIRED AT 11.47 a.m.

Mr. Maher:	Can I say, my lord, Mr. Lindsay did indeed contact Mr. Newell after the jury had been sworn to indicate that he had a difficulty with exactly the member of the jury who brought his concerns to the attention of your lordship.
Judge:	Our man is concerned that he has seen your man in Tramore, no more than that.
Mr. Maher:	My lord, its very difficult for a man to be asked that question.
Judge:	I don't accept that. He was asked the question, I said, is there any more than that, and he may have seen, I said or did see, he knows, to what extent can you, or how far can you take it? In other words, if you ever see a person are you excluded then from being on a jury?
Mr. Maher:	I am not suggesting that my lord.
Judge:	But that is the state we are at here.
Mr. Maher:	Not quite, in my respectful submission, my lord, because Mr. Lindsay, it was quite clearly evident to the members of the jury when he was answering the counts, and my lord gave the

	clearest possible warning - it couldn't have been clearer - and yet we find that this particular juror is sufficiently concerned enough about it to bring it to your lordship's attention.
Judge:	What do you say to that, Mr. Teehan?
Mr. Teehan:	On the basis of what we have heard today, I would say in the light of what Mr. Lindsay is saying.
Judge:	On the one level I have to deal with - let's say - a person who is extremely scrupulous which I take this man to be. He tells me something and if I then go and discharge the jury am I perhaps making a mountain...