DPP v McDonnell

JurisdictionIreland
JudgeJustice Kearns
Judgment Date03 March 2009
Neutral Citation[2009] IECCA 16
Docket Number[C.C.A. No. 193 of
CourtCourt of Criminal Appeal
Date03 March 2009

[2009] IECCA 16

THE COURT OF CRIMINAL APPEAL

Kearns J.

Budd J.

Herbert J.

[C.C.A. No. 193 of 2008]
DPP v McDonnell

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

AND

PETER McDONNELL
APPLICANT

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1984 S6

MISUSE OF DRUGS ACT 1977 S5

DPP v DELANEY UNREP CCA 28.2.2000 2001/15/4261

R v CAMPBELL (DOUGLAS) 1911 5 CAR 131

R v MARQUIS (WILLIAM JOHN LINSEY) 1951 35 CAR 33

STANBRIDGE, STATE v MAHON 1979 IR 214

RYAN & MAGEE THE IRISH CRIMINAL PROCESS 1983 393-4

AG, PEOPLE v RIORDAN 1948 IR 416

LAW REFORM CMSN CONSULTATION PAPER ON SENTENCING 1993 PARA 1.22

DPP v MCMANUS UNREP CCA 21.3.2003 2003/18/4168

DPP v MURPHY UNREP CCA 14.5.2002 (EX TEMPORE)

DPP v FURLONG UNREP CCA 20.12.2002 2003/16/3454

LAW REFORM CMSN CONSULTATION PAPER ON SENTENCING 1993 PARA 1.41

AG, PEOPLE v O'CALLAGHAN 1966 IR 501

LAW REFORM CMSN CONSULTATION PAPER ON SENTENCING 1993 PARA 1.42

LAW REFORM CMSN CONSULTATION PAPER ON SENTENCING 1993 PARA 11.4

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 566

FEDERAL RULES OF EVIDENCE 1.12.2008 ART 11 RULE 1101(D)(3) (UNITED STATES)

CONSTITUTION ART 38.1

WILLIAMS v OKLAHOMA 1959 358 US 576

CRIMINAL CODE OF CANADA S723(5)

CRIMINAL CODE OF CANADA S724(3)

R v GARDINER 1982 2 SCR 368

R v JONES 1994 2 SCR 229

R v PICHE UNREP ABCA 17.7.2006 2006 ABCA 220

LAW REFORM CMSN CONSULTATION PAPER ON SENTENCING 1993 PARA 1.23

OFFICE OF THE DPP GUIDELINES FOR PROSECUTORS 2007 PARA 8.16

CRIMINAL LAW

Sentence

Evidence - Hearing - Hearsay evidence - Opinion evidence - Admissibility - Co-accused - Mitigating factors - Culpable role - Appeal dismissed (193/2008 - CCA - 3/3/2009) [2009] IECCA 16

People (DPP) v McDonnell

Facts: The applicant sought to appeal the severity of sentence imposed in the Circuit Court for drugs offences, where at a sentencing hearing it was alleged that hearsay evidence and opinion evidence was received by the Court, in addition to direct evidence tendered by the prosecution. The trial judge had intervened and questioned a Detective during cross-examination as to how long the applicant had been involved "in this trade" and a reply had been given. The trial judge had imposed an identical sentence on a co-accused of the applicant. The applicant alleged that the trial judge had erred in fact and in law in ruling that he was entitled to receive background information relating to the length of time the prosecuting Garda believed that the applicant was involved in the drugs trade and thus admitting evidence that was inadmissible and prejudicial.

Held by the Court of Criminal Appeal per Kearns J. (Budd & Herbert JJ concurring), that the admission at a sentencing hearing of hearsay evidence to suggest the commission of prior criminal offences on the part of a convicted person would infringe Articles 38 and 40.1 of the Constitution. It was permissible for the sentencing judge to receive the evidence of a Detective as to which co-offender played a greater or lesser role in the particular offence. The Court took the view that the question asked by the sentencing judge as to how long the applicant had been "in the trade" went beyond that which was permissible. While there was an error in principle, nonetheless the sentences would stand. The sentencing court was entitled on the other evidence before it to take the view that the applicant played the more culpable role. The Court would not interfere with the sentence and the appeal would be dismissed.

Reporter: E.F.

1

Justice Kearns on the 3rd day of March, 2009

2

This matter comes before this Court by way of an appeal against severity of sentence brought by the applicant Peter McDonnell following a sentencing hearing in the Dublin Circuit Court at which, in addition to the direct evidence tendered by the prosecution, it is alleged on behalf of the applicant that some hearsay and opinion evidence was also received by the court.

3

On 25 th February, 2008 the applicant entered a plea of guilty to the offence of possession of a controlled drug, to wit, cocaine for the purpose of sale or supply at Cushlawn Way, Tallaght in the City of Dublin on 10 th November, 2006, contrary to s.15 and s.27 (as amended by s.6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act 1977, and the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Act of 1977. Subsequently, on 16 th June, 2008, he was sentenced to a term of imprisonment for three years in the Dublin Circuit Criminal Court. The final twelve months of the sentence were suspended on terms for a period of three years. A co-accused, David Doyle, who had similarly entered a plea to possession of a controlled drug for sale or supply on the same date and at the same address, received a sentence of three years which was wholly suspended on conditions. Neither man had any prior convictions.

4

The background facts may be briefly stated. On 10 th November, 2006 Detective Garda Griffin and a colleague, Garda Noonan, were maintaining surveillance of dwelling house premises at 86 Cushlawn Way in Tallaght and had in their possession a warrant to search the premises in question. During the course of the surveillance operation, a silver Nissan motor vehicle drove into Cushlawn Way and parked outside number 86, a dwellinghouse occupied by David Doyle. The driver of the motor car was the applicant. Shortly after the applicant arrived, David Doyle also arrived and both men entered the dwelling house. Approximately fifteen minutes later the applicant left the dwellinghouse and drove out of Cushlawn Way in his motor car. The car was stopped and searched and during the course of this search the applicant attempted to discard a bag containing just under €1,000 worth of cocaine. The gardaí then proceeded to search the dwelling house and there found a stash of cocaine with an approximate street value of €7,080, together with a weighing scales and a small sum of money. In the course of garda interview David Doyle indicated that he was storing cocaine in the house for some other party because he owed a debt. He stated he was working off the debt by storing the cocaine and claimed to be in genuine fear of the person for whom he was holding the drugs. He admitted to using cocaine himself and had run up a drug debt as a result.

5

The applicant, Peter McDonnell, also accepted that he had been involved with drugs for a number of years as an addict and that his addiction to cocaine had "spiralled out of control" since 2005. He answered all questions put to him in interview by the gardaí following his arrest.

6

In the course of the sentencing hearing, the trial judge intervened during the course of the cross-examination of Detective Garda Griffin by counsel for the applicant to ask the following questions:-

7

a "Q. How long do you say these people were involved in this trade?

8

b A. Prior to the date of the incident, a number of years, Judge. One of the accused would have been known to us for a number of years.

9

c Q. Right, which of them?

10

d A. Mr. McDonnell. Mr. McDonnell was the primary target in this operation."

11

By consent of the learned trial judge, Detective Garda Griffin was re-cross examined by counsel for David Doyle as follows:-

12

a Q. Just one question with your permission, Judge. Insofar as you expressed at the outset to the Judge's questions that this was something that had been going on for a number of years, correct me if I am wrong, but I don't believe you're asserting that my client was somebody who had been engaged in this sort of business for a period of years; isn't that correct?

13

b A. That is correct, Judge. Yes.

14

c MR. COSTELLOE: Thank you.

15

d Q. JUDGE: How long do you believe that Mr. Doyle was being used?

16

e A. For a number of months prior to the incident, Judge. Mr. Doyle's name only came into the operation at a later stage.

17

JUDGE: All right. I am much obliged, thank you.

18

This was followed by a re-cross examination of Detective Garda Griffin by counsel for the applicant in the following terms:-

19

a Q. Over that last three years has any evidence been brought forward which has led to Mr. McDonnell being charged in relation to something similar?

20

b A. Sorry can you repeat the question?

21

c Q. Has any evidence been brought forward to the point where Mr. McDonnell has been charged with a similar type of offence, because at this stage we're really dealing with speculation intelligence, suspicion? Mr. McDonnell has pleaded guilty to count 3, and he has never been charged with this offence before?

22

d A. He hasn't been charged with any other offences, only in relation to this incident Judge.

23

MR. McQUADE; Thank You

24

JUDGE: I am obliged, thank you.

25

Counsel for the applicant objected that it would be very wrong of the court to deal with the case on any other basis than on the evidence that was before the court. The applicant, - counsel said, - had accepted that he had been involved with drugs as a cocaine addict for the last number of years as opposed to the type of person the investigating Garda, based on suspicions, believed him to be. However, the learned trial judge in structuring the sentence specifically took into account the evidence given by Detective Garda Griffin. In the course of delivering judgment the judge stated:-

"Both accused have never been in trouble before, to this extent that they have no convictions recorded against them, but the offence of sale and supply of drugs is an offence that just doesn't happen from the experience of this court on the once off, there is a history, there is a pattern, there is a scheme, that ultimately the gardaí learn about, pick up information about from people who they rely upon, from their...

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4 cases
  • DPP v Power
    • Ireland
    • Court of Appeal (Ireland)
    • 22 July 2019
    ...that in taking that into account this Court feels that the learned Circuit Judge did err in principle.’ 22 Further, in DPP v. McDonnell [2009] IECCA 16, the Court of Criminal Appeal held that the uncorroborated, hearsay evidence of a Prosecuting Garda should not be taken into account by a ......
  • Patrick Farrell v District Judge Bridget Reilly and Another
    • Ireland
    • High Court
    • 2 May 2014
    ...PROSECUTORS 2007 2007 PARA 8.14(D) DPP v RAMACHCHANDRAN 2000 2 IR 307 2000/8/3150 STANBRIDGE, STATE v MAHON 1979 IR 214 DPP v MCDONNELL 2009 4 IR 105 2009/17/4232 2009 IECCA 16 PREVENTION OF CRIMES ACT 1871 S18 P (A) v DPP & JUDGES OF THE CIRCUIT COURT 2011 1 IR 729 2011 2 ILRM 100 2011/4......
  • DPP v O'Neill
    • Ireland
    • Court of Criminal Appeal
    • 15 February 2012
    ...OF DRUGS ACT 1977 S15A DPP v DELANEY UNREP CCA 28.2.2000 2001/15/4261 DPP v GILLIGAN (NO 2) 2004 3 IR 87 2003/16/3559 DPP v MCDONNELL 2009 4 IR 105 2009/17/4232 2009 IECCA 16 DPP v O'DONOGHUE 2007 2 IR 336 2006/20/4238 2006 IECCA 134 Abstract: Criminal law - Sentencing - Severity of senten......
  • DPP v O'Keeffe
    • Ireland
    • Court of Appeal (Ireland)
    • 23 July 2018
    ...offence of which they were not tried and found guilty. This was affirmed by the Court of Criminal Appeal in the case of DPP v Mc Donnell [2009] 4 IR 105 where Kearns J stated that a convicted person can only be punished for the crimes to which he/she has pleaded guilty or has been convicted......

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