DPP v McCarthy

• Jurisdiction: Ireland
• Judge: Mr. Justice Alan Mahon
• Judgment Date: 13 July 2015
• Neutral Citation: [2015] IECA 150
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No. 222/12
• Date: 13 July 2015

Director of Public Prosecutions

Respondent

and

John McCarthy

Appellant

[2015] IECA 150

Appeal No. 222/12

THE COURT OF APPEAL

Conviction – Possession of controlled drugs – Appeal against conviction and sentence – Appellant seeking to appeal against conviction and sentence – Whether trial judge erred in law and in fact

Facts: The appellant, Mr McCarthy, in May 2012, was convicted at Limerick Circuit Criminal Court of possession of a controlled drug, to wit, diamorphine, contrary to s. 15 of the Misuse of Drugs Act 1977, and possession of a controlled drug, the market value of which amounted to €13,000 or more contrary to s. 15A of the 1977 Act. The offences were committed in October 2010. Concurrent prison sentences of fourteen years were imposed in respect of each offence. The jury verdicts of guilty in respect of both offences were unanimous and followed an eight day trial. The appellant appealed to the Court of Appeal against both his convictions and his sentence. The first ground of appeal related to garda telephone records. It was contended that the trial judge erred in law and in fact in, having ordered the disclosure of relevant of garda phone records to the defence, subsequently failed to properly enforce the said order. The second ground of appeal arose from, as contended by the appellant, the lack of sufficient warning to the jury concerning contact with persons who were not members of the jury, and their possible use of the internet to search for information relating to the trial or the appellant. More specifically it was contended that the trial judge erred in law and in fact in failing, at the commencement of the trial, to direct the jury not to discuss the case with anyone outside the jury room and not to search the internet for information on the trial or the appellant. The appellant”s third ground of appeal was that the trial judge erred in law or in fact or in a mixed question of law and fact in failing to properly direct the jury in relation to the manner in which they should approach and consider garda identification evidence.

Held by Mahon J that he was satisfied that the first ground of appeal should not be allowed. The Court was satisfied that the order of the trial judge of 1st February 2012 was, in general, complied with fully, and that insofar as certain information relating to phone records was withheld from the appellant on the basis of privilege, such was permissible and was not unfair to the appellant. Concerning the second ground of appeal, the Court, citing The People (DPP) v Cronin (No 2) [2006] IESC 9, was satisfied that sufficient warnings were given to the jury, both at the outset, during and conclusion of the trial, and that it was their obligation to decide verdicts only on evidence and the demeanour of witnesses heard and seen in the course of the trial. That ground of appeal was therefore dismissed. It was the Court”s view that the fact that identification evidence was central to the case was fully recognised by the trial judge, and was fully and comprehensively addressed by him in his charge to the jury, and in the manner in which he dealt with the issues raised by way of requisition by counsel for the appellant. On the facts of the case the Court considered that it was not necessary for the trial judge to set out the weaknesses in the identification evidence beyond that done in his charge. The Court was satisfied that the requirements of R v Turnbull [1977] QB 224 and The People (Attorney General) v Casey (No 2) [1963] IR 33 were, in general, followed by the trial judge. The appellant”s third ground of appeal was therefore dismissed by Mahon J.

Mahon J held that, having rejected the appellant”s three grounds of appeal, the appeal against conviction was therefore dismissed.

Appeal dismissed.

Judgment of the Court delivered by Mr. Justice Alan Mahon on 13th day of July 2015

Introduction

1 On 22nd May 2012 the appellant was convicted at Limerick Circuit Criminal Court of possession of a controlled drug, to wit, diamorphine, contrary to s. 15 of the Misuse of Drugs Act 1977, and possession of a controlled drug, to wit, diamorphine, the market value of which amounted to €13,000 or more contrary to s. 15A (as inserted by s. 4 of the Criminal Justice Act 1999) of the Misuse of Drugs 1977. The date of the offences was 15th October 2010. Concurrent prison sentences of fourteen years were imposed in respect of each offence. The jury verdicts of guilty in respect of both offences were unanimous and followed an eight day trial. Prior to the commencement of the trial, a separate jury had been empanelled to try the appellant, but was discharged for reasons unconnected to this appeal. The appellant has appealed both against convictions and his sentence. This judgment relates only to the former.

2 The appeal against the convictions was brought on a number of grounds. However at the commencement of the hearing of the appeal, this court was advised by counsel for the appellant that just three grounds of appeal were being pursued.

The first ground of appeal

3 This ground of appeal relates to garda telephone records. It is contended that the learned trial judge erred in law and in fact in, having ordered the disclosure of relevant of garda phone records to the defence, subsequently failed to properly enforce the said order.

4 The order is dated 1st February 2012, and it directed as follows:—

(i) that pursuant to S. 5 of the Communications (Retention of Data) Act 2011, the relevant service providers (as defined in the said act disclose to the Chief Superintendent of An Garda Síochána at Henry Street garda station, Limerick, the mobile telephone records in respect of the period from 11 a.m. to 11.30 p.m. of 15th October 2010 in respect of the following members of an garda siochaná namely:—

(a) Gda. Viv Downey

(b) Gda. Mark McGauley

(c) Det. Sgt. Ronan McDonagh

(d) Gda. Kevin Mulryan

(e) Det. Insp. James Ryan

(f) Sgt. Arthur Ryan

(ii) that the said order be furnished to the said service providers by the said Chief Superintendent of An Garda Síochána and that the identity of the relevant telephone numbers be furnished to the said service providers by an accompanying letter or letters from the said Chief Superintendent of An Garda Síochána upon terms that the contents of any such letter or letters be kept confidential and not be disclosed to any other parties save and except the Director of Public Prosecutions.

(iii) that any text messages or images relevant to the said proceedings to be found on the telephones of the aforesaid persons in respect of the said time, be disclosed to the accused.

(iv) that the Director of Public Prosecutions shall disclose to the accused the telephone records, the subject matter of para. 1.

(v) that the said orders are subject to the right of any parties to withhold any documents on the grounds of privilege or confidentiality subject to the determination of this honourable court.

(vi) that any information disclosed to the accused on foot of this order shall be retained in the possession of the legal advisors of the accused and shall be used solely in connection with the conduct of these proceedings.

(vii) there be liberty to apply further by any party affected by the terms of this order.

5 The application for this order was made by Counsel on behalf of the appellant on 18th January 2012. On that date, counsel for the appellant informed the learned trial judge that ‘the prosecution are alleging that our client was there at a certain time and our client will be denying that. So, on that basis, we are saying that the time they actually rang theircommanding officer would be crucial’. Later, in the course of the application, Counsel for the appellant stated ‘We are just looking for the phone records of the mobile phones of the gardaí and their commanding officer that day so as to determine what times those phone calls were actually made’ and ‘…our contention is that simple, you know, records showing what time the gardaí dialled a certain number’. There was therefore no ambiguity as to the basis on which the telephone information was being sought, or the context in which it was being sought.

6 In purported compliance with the said order of the court, a list of details from original telephone records were submitted to the learned trial judge. He considered the content of this document and ruled as follows:—

‘..I have looked at this document, the mobile phone printout that was handed into me yesterday and I have also looked at the abstracts, if you can call it that, of the details. Now, it seems to me that this is covered by privilege in the manner that the matters had been omitted because they are … the phone numbers of the particular gardaí and what are called other matters which are known as number or equipment identifiers, and I think they are subject to privilege. But the matters that are included are the germaine matters, germaine the times the calls were made, between whom they were made and the lengths of the calls..’

7 The learned trial judge noted what he understood was an error in relation to one entry. He requested that this be checked and it duly was. An application was then made by Counsel for the appellant to have the information provided checked by an expert. Counsel for the appellant applied to the court on 8th May 2012 (Day 1 of the trial) in the following terms:

‘And I would respectfully request the court to stay these proceedings due to the failure as regards calling witnesses to comply with an order made by this court on 1st February of this year. There has been no compliance of that order at all, my lord, and indeed with the terms of the order; and secondly, as a result of that failure, the inability of the Director's office to provide...