DPP v Melenciuc

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 22 June 2015
• Neutral Citation: [2015] IECA 133
• Docket Number: Appeal No. 106/13
• Court: Court of Appeal (Ireland)
• Date: 22 June 2015

[2015] IECA 133

THE COURT OF APPEAL

Peart J.

Mahon J.

Edwards J.

Appeal No. 106/13

Between:

The Director of Public Prosecutions

Respondent

and

Ghenadie Melenciuc

Appellant

Conviction – Drug offences – Appeal against conviction and sentence – Appellant seeking to appeal against conviction and sentence – Whether the trial judge erred in law

Facts: The appellant, Mr Melenciuc, was stopped on arrival at the Europort at Rosslare in County Wexford in August 2011, after he and his vehicle had disembarked from the ferry. The vehicle was searched, and Customs Officers discovered cannabis resin to the value of €316,566. The appellant maintained that he transported paint from Ireland to a site in Hungary. The appellant said that he left his vehicle at a location in Hungary while he went on to visit Moldova. He said he was asked to transport a consignment of returned paint back to Ireland in the vehicle, which he did. He noticed the fuel gauge in the vehicle was not working on the return journey. The appellant maintained that he was unaware that the drugs were in his vehicle. In December 2012, following a trial at Wexford Circuit Criminal Court, the appellant was found guilty of five counts: (i) possession of a controlled drug, to wit, cannabis resin, contrary to s. 3 and s. 27 of the Misuse of Drugs Act 1977; (ii) possession of a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988/1993, contrary to s. 15 and s. 27 of the 1977 Act; (iii) possession of a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of the 1988/1993 Regulations, the value of the drugs amounting to €13,000 or more, contrary to s. 15A and s. 27 of the 1977 Act; (iv) importation of a controlled drug that has a market value that amounted to €13,000 or more in contravention of the 1988/1993 Regulations, contrary to s. 15B(1) and s. 27 of the 1977 Act; (v) importation of a controlled drug in contravention of s. 21(2) of the 1977 Act, and contrary to the Misuse of Drugs Regulations 1988. The appellant was sentenced in March 2013 to a term of ten years imprisonment in respect of the third count; ten years imprisonment in respect of the fourth count and five years imprisonment in respect of the fifth count, with the imprisonment terms to run concurrently. The first and second counts were taken into consideration. The appellant appealed to the Court of Appeal against his convictions, and against the severity of his sentence on grounds that the trial judge erred in law in: 1) directing the jury as to the burden and standard of proof in relation to the defence raised in s. 29(2) of the 1977 Act; 2) failing to put adequately the defence case to the jury; and 3) failing to put adequately those facts to the jury which undermined the respondent”s case.

Held by Mahon J that, having considered The People (DPP) v Smyth [2010] 3 IR 688 and The People (DPP) v Tuma [2015] IECA 63, the trial judge”s interpretation of the meaning of s. 29(2), as conveyed to the jury, was wrong; he incorrectly advised the jury that it was for the defendant to prove the absence of knowledge or reasonable grounds for belief to the standard of beyond reasonable doubt. Mahon J held that the jury should have been advised that all the defendant had to do was to raise a doubt as to whether he knew or had reasonable cause to suspect that the drugs in question were in his possession or under his control, and that he did not have to affirmatively establish anything. Mahon J held that, with the exception of the s. 29(2) issue, the trial judge”s charge to the jury was fair, reasonable and comprehensive. The contention that the defence case was not adequately put to the jury, or that such facts as may have existed to undermine the respondent”s case were not put to the jury, was rejected by the Court.

Mahon J held that the Court would allow the appeal and quash the conviction of the appellant. Although s. 29(2) of the 1977 Act refers to the possession of a controlled drug and was therefore strictly relevant only to the first three counts in respect of which guilty verdicts were returned by the jury, the Court was satisfied that the guilty verdicts in respect of the fourth and fifth counts, relating to the importation of a controlled drug, also should fall, in that there was, in practical terms, an inextricable link as between the five counts, in that they all related to the same consignment of drugs.

Appeal allowed.

JUDGMENT of the Court delivered by Mr. Justice Mahon on the 22nd day of June 2015

1 On the 14th December 2012, following a four-day trial at Wexford Circuit Criminal Court, the appellant was found guilty of five counts, namely:

(i) Possession of a controlled drug, to wit, Cannabis resin, contrary to s. 3 and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977;

(ii) Possession of a controlled drug, to wit, Cannabis resin for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988/1993, made under s. 5 of the Misuse of Drugs Act 1977, 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;

(iii) Possession of a controlled drug, to wit, Cannabis resin for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988/1993, made under s. 5 of the Misuse of Drugs Act 1977, the value of the drugs amounting to €13,000 or more, contrary to s. 15A (as amended by s. 5 of the Criminal Justice Act 1999) and s. 27 (as amended by s. 5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977;

(iv) Importation of a controlled drug, to wit, Cannabis resin that has a market value that amounted to €13,000 or more in contravention of the Misuse of Drugs Regulations 1988/1993, made under s. 5 of the Misuse of Drugs Act 1977, contrary to s. 15B(1) of the Misuse of Drugs Act 1977 (as inserted by s. 2 of the Criminal Justice Act 2006) and s. 27 (as amended by s. 84 of the Criminal Justice Act 2006) of the Misuse of Drugs Act 1977;

(v) Importation of a controlled drug in contravention of s. 21(2) of the Misuse of Drugs Act 1977, as amended by s. 2 of the Misuse of Drugs Acts 1984, and contrary to the Misuse of Drugs Regulations 1988, made under s. 5 of the Misuse of Drugs Act 1977.

2 The appellant was sentenced on the 19th March 2013, to a term of ten years imprisonment in respect of the third count; ten years imprisonment in respect of the fourth count and five years imprisonment in respect of the fifth count, with the imprisonment terms to run concurrently. The first and second counts were taken into consideration. The appellant has appealed against his convictions, and against the severity of his sentence. This judgment is confined to the conviction appeal only.

The Facts

3 The appellant was stopped on arrival at the Europort at Rosslare in County Wexford on 22nd August 2011, after he and his vehicle had disembarked from the ferry. The vehicle was searched, and Customs Officers discovered cannabis resin to the value of €316,566. It was concealed inside the petrol tank of the vehicle.

4 The appellant maintained that he transported paint from Ireland to a site in Hungary for use in the renovation of a hotel for a fee of €800 towards the end of July 2011. He said he had been offered this work by a Romanian man in a nightclub in Swords, County Dublin. The appellant said that he left his vehicle at a location in Hungary while he went on to visit his home country of Moldova. He said he was asked to transport a consignment of returned paint back to Ireland in the vehicle, which he did, arriving in Rosslare on 22nd August 2011. He noticed the fuel gauge in the vehicle was not working on the return journey. The appellant maintained that he was unaware that the drugs were in his vehicle, and their discovery in Rosslare came as a complete surprise to him.

The Grounds of Appeal

5 The appellant's grounds of appeal, as identified in the notice of appeal and the written submissions to this Court, were as follows:

• The learned trial judge erred in law in directing the jury as to the burden of proof and standard of proof in relation to the defence raised in s. 29(2) of the Misuse of Drugs Act 1977;

• the learned trial judge erred in law in failing to put, or to put adequately, the defence case to the jury and

• the learned trial judge erred in law in failing to put, or to put adequately, those facts to the jury which undermined the respondent's case.

6 In effect, the appellant's appeal was restricted to his first ground, namely, that the learned trial judge erred in law in directing the jury as to the burden of proof and standard of proof in relation to the defence raised under s. 29(2) of the Misuse of Drugs Act 1977.

7 Section 29(2)(a) of the Act of 1977 provides:

‘2) In any such proceedings in which it is proved that the defendant had in his possession a controlled drug, or a forged prescription, or a duly issued prescription altered with intent to deceive, it shall be a defence to prove that—

(a) he did not know and had no reasonable grounds for suspecting—

(ii) that what he had in his possession was a controlled drug or such a prescription, as may be appropriate, or

(iii) that he was in possession of a controlled drug …’

8 It was submitted by the appellant that the learned trial judge misdirected and/or confused the jury in relation to the appellant's contention that he was unaware that he was in possession of the drugs in question, and more particularly, that he did not direct and adequately explain to the jury the provisions of s. 29(2) of the Act of 1977, and how the...