DPP v Masznicz
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 18 October 2022 |
| Neutral Citation | [2022] IECA 237 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 168/2019 |
[2022] IECA 237
Birmingham P.
Edwards J.
McCarthy J.
Record Number: 168/2019
THE COURT OF APPEAL
Conviction – Drug offences – Charge to jury – Appellant seeking to appeal against convictions – Whether the trial judge erred in law and in principle in his charge to the jury
Facts: The appellant, Mr Masznicz, was charged on indictment before the Circuit Criminal Court for the South Western Circuit, and County of Kerry, with six counts, being: (1) possession of controlled drugs with a value of €13,000 or more for sale or supply, to wit, cannabis and methylamphetamine, contrary to s. 15A of the Misuse of Drugs Act 1977; (2) possession of a controlled drug for sale or supply, to wit, cannabis, contrary to s. 15 of the 1977 Act; (3) possession of a controlled drug for sale or supply, to wit, methylamphetamine, contrary to s. 15 of the 1977 Act; (4) possession of a controlled drug, to wit, cannabis, contrary to s. 3 of the 1977 Act; (5) possession of a controlled drug, to wit, methylamphetamine, contrary to s. 3 of the 1977 Act; (6) possession of an unauthorised firearm, to wit, a stun gun, contrary to s. 2 of the Firearms Act 1925. He pleaded guilty on arraignment to Count 4, and not guilty in respect of the other counts. He was tried before a jury on Counts 1, 2, 3, 5 and 6 at Tralee Circuit Criminal Court. He was convicted on all counts, and subsequently received various sentences. He appealed to the Court of Appeal against his convictions. Four grounds of appeal were pleaded. Only two were ultimately relied upon at the appeal hearing: (1) the trial judge erred in law and in principle in his charge to the jury; (4) no reasonable jury correctly charged could have convicted the appellant.
Held by the Court that there was no basis for a concern that the appellant had suffered a fundamental injustice. The Court held that, notwithstanding the trial judge’s undoubted error in not independently providing an explanation to the jury of the legal concept of possession, the run of the trial, as revealed by a close examination of the transcript, served to allay any concerns that the jury could have been in any doubt as to what might constitute sufficient possession in the legal sense to allow them to convict. The Court noted that the jury were told that they had to decide the case on the evidence, that they could draw inferences but that they ought not to speculate, and the two views rule was explained to them. The Court was not persuaded that these relatively limited instructions regarding how to approach circumstantial evidence were necessarily inadequate in the circumstances of the case. The Court did not harbour concerns about the possibility of a fundamental injustice, such as might justify the Court in departing from the Cronin jurisprudence (The People (Director of Public Prosecutions) v Cronin (No. 2) [2006] 4 I.R. 329). The Court considered that this was not an appropriate case in which to permit reliance on points not made at the trial. The Court rejected the case advanced that the verdicts were perverse. It was, in the Court’s view, open to the jury to accept the evidence of the prosecution’s witnesses, and equally to reject that given by the appellant. The Court held that there was evidence from which inferences could be drawn that the appellant had both control and knowledge of relevant items, and there was direct evidence as to the nature and quality of the items in question. The Court held that it could not be said that there was no evidence that could support the convictions recorded.
The Court dismissed the appellant’s appeal against his convictions.
Appeal dismissed.
JUDGMENT of the Court delivered on the 18th of October, 2022 by Mr Justice Edwards
In the case of The People (Director of Public Prosecutions) v. Cronin (No 2.) [2006] 4 I.R. 329, the Supreme Court (Geoghegan, Fennelly, McCracken, Kearns and Macken JJ) heard an appeal brought under s. 29 of the Courts of Justice Act 1924 from a decision of the Court of Criminal Appeal (Hardiman, O'Sullivan and Quirke JJ) refusing an application by the applicant, Mr Cronin, for leave to appeal to that Court from his conviction for murder in the Central Criminal Court. In hearing Mr Cronin's s. 29 appeal the Supreme Court considered, inter alia, the circumstances in which an appellate court, concerned with an appeal against a criminal conviction following a trial on indictment, might allow a point not raised at trial to be argued on appeal.
The Supreme Court held that only in circumstances where the appellate court was of the view that, due to some error or oversight of substance, a fundamental injustice had occurred, should the court allow a point not raised at trial be argued on appeal. Moreover, and in addition, it said that an explanation should be furnished as to why the point was not raised at trial.
The rationale for the Supreme Court's approach was explained in the following passage from the judgment of Kearns J. in that case (at p.346 of the report):
“47. Without some such limitations, cases will continue to occur where a trawl of a judge's charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge's charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself. For these reasons and for the reasons offered by Hardiman J. when this case was in the Court of Criminal Appeal, this court should abhor the practice and strongly discourage it.”
Earlier, in giving judgment on behalf of the Court of Criminal Appeal in the same case, as reported at [2003] 3 I.R. 377, Hardiman J. had said (at p. 390 of the report), under the sub-heading “Point not taken at trial”, that:
“Throughout the history of this court considerable emphasis has been placed on whether a point relates to something which was thought at the time, by those involved in the case, to be of real importance, as opposed to a point devised much later, perhaps by persons who had no connection with the trial and only after a “trawl” of the transcript. The decision of the early case of ( The Attorney General v. Gilligan Unreported, Court of Criminal Appeal, 2nd May, 1929), is unreported but is noted at p. 180 of the second edition of Sandes Criminal Practice Procedure and Evidence in Éire (2nd ed., 1939) as follows:-
‘The specific grounds of appeal must be stated in the notice of appeal … The [Court of Criminal Appeal] will not permit a defendant or his counsel, after he has read through the transcript of evidence and has made a meticulous scrutiny of it, then to formulate grounds of appeal.’
This attitude has been restated on numerous occasions since.”
Hardiman J. then went on to illustrate his point with examples, including The People (Attorney General) v. Michael Coughlan (1968) 1 Frewen 325; ( The People (Director of Public Prosecutions) v. Moloney Unreported, Court of Criminal Appeal, 2nd March, 1992); The People (Director of Public Prosecutions) v. Redmond [2001] 3 IR 390; and The People (Director of Public Prosecutions) v. Noonan [1998] 2 IR 439.
Notwithstanding these strong previous statements of judicial policy, the appeal to which the present judgment relates seeks to raise numerous points not raised at trial, and in respect of which no requisitions were raised, and no explanation or explanations have been advanced for not doing so. However, the appellant asks us to overlook this, contending that a fundamental injustice may have occurred. Notwithstanding that it is our view that a mere contention or assertion does not entitle a party to automatically secure a particular level of scrutiny or review, we have in this instance considered in detail his arguments in that respect. The fact that we have opted to do so here is not to be regarded as the setting of a precedent. However, having done so on this occasion, we feel obliged to say that this appears to us to be a classic instance of the situation postulated by Kearns J., where a new legal team which did not represent the appellant at trial has now come on board and has trawled the transcript of the judge's charge to, adopting the words of the learned Supreme Court judge, “see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge's charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so.”
In circumstances where we further consider that the case made on appeal has failed to engage with the reality of how the trial was run and conducted; and where we have not been persuaded that the trial, when it is considered as a whole, was either unsafe or unsatisfactory, much less conducted in a manner tending to suggest that a fundamental injustice may have occurred; we are disposed to dismiss this appeal.
In the remainder of this judgment we will set out in more detail our reasons for why we have arrived at these conclusions, and for our decision.
The accused was charged on indictment before the Circuit Criminal Court for the South Western Circuit, and County of Kerry, with six counts, being:-
Count 1: Possession of controlled drugs with a value of €13,000 or more for sale or supply, to wit, cannabis and methylamphetamine, contrary to s. 15A of the Misuse of Drugs Act 1977;
Count 2: Possession of a controlled drug for sale or supply, to wit, cannabis, contrary to s. 15 of the Misuse of Drugs Act 1977;
Count 3: Possession of a controlled drug for sale or supply, to wit, methylamphetamine, contrary to s. 15 of...
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DPP v C.S.
...to reject this point of appeal. 29 We take this opportunity to draw attention to the recent decision of People (DPP) v Masznicz [2022] IECA 237, which was delivered on the 18 th October 2022 subsequent to our decision to refuse to permit this ground of appeal to be argued on the basis of th......