DPP- v Michael Tanner

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 30 November 2006
• Neutral Citation: [2006] IECCA 151
• Docket Number: [012/2006]
• Court: Court of Criminal Appeal
• Date: 30 November 2006

[2006] IECCA 151

THE COURT OF CRIMINAL APPEAL

Kearns J.

Hanna J.

Feeney J.

[012/2006]

DPP v TANNER

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

MICHAEL TANNER

APPLICANT

MISUSE OF DRUGS ACT 1977 S1(2)

CRIMINAL JUSTICE ACT 1999

R v GALBRAITH 1981 1 WLR 1039

DPP v HIGGINBOTHAM UNREP CCA 17.11.2000

CHARLETON, MCDERMOTT & BOLGER CRIMINAL LAW 1999 359-60

DPP, PEOPLE v O'SHEA 1983 ILRM 592

DPP v KELLY UNREP CCA 4.3.1996 1998/15/5629

SAAD, IN RE 1987 29 ACR 20

Mr. Justice Kearns

1 On the 8th November, 2005, the applicant, together with another man, James Tobin, was arraigned on three accounts of unlawful possession of controlled drugs under the Misuse of Drugs Act,1977as amended by the Criminal Justice Act, 1999. James Tobin entered a guilty plea to the charges. The applicant having pleaded not guilty, his trial proceeded at Cork Circuit Criminal Court between the 8th and 15th of November, 2005, at the conclusion of which the applicant was found guilty by the jury on all three counts. On the 15th December, 2005, a sentence of fifteen years was imposed on one count, and the other remaining counts were taken into account by the learned trial judge when passing sentence.

2 As the essential point raised in this appeal relates to the legal requirements of possession, it is important to set out the facts in some detail.

3 On 3rd May, 2003, the applicant rented a designated car parking space (number 48) at Block B, South Terrace Court, Cork for a period of three months. All his dealings in relation to the rental of this designated car parking space, both then and subsequently, were with Ms. Denise Finzer, the complex manager. In renting the space, the applicant used a false name and always paid cash, renewing the rental in September, January and April in consecutive rental periods extending into 2004.

4 The applicant was clearly identified as the person who rented the space in question during the course of the trial by Ms. Finzer, who recognised him from having met him on at least five separate occasions.

5 On the 3rd June, 2004, gardaí found drugs consisting of cocaine, cannabis and ecstasy in the boot of a Ford Escort motorcar, registration number 93 C 2420, which was parked in the designated space (number 48) in Block B of South Terrace Court. The value of the drugs recovered was just under €500,000. When the vehicle was being towed away, it was noted that it was covered in dust, indicating that it had been parked for some considerable time in the designated space.

6 As already noted, the applicant gave a false name (Joseph Hogan) when renting this space and furnished no address, simply furnishing a contact mobile telephone number. Under the rental arrangements, he received a swipe card which allowed admission into the car park. This swipe card was subsequently found in a car owed by the applicant which was parked outside his house at Inchydoney. The circumstances of this find will be mentioned shortly.

7 On the 2nd June, 2004, a car belonging to James Tobin was searched and the key to the car in Block B was found in it. Tobin was arrested and brought to Bandon Garda Station. Amongst his possessions was a mobile telephone.

8 While present in the car park at South Terrace Court, Garda Kelleher used the land line in the office to ring the contact number which had been given to Ms. Finzer. When the messaging service on the mobile came on, Garda Kelleher left a message on the phone. This message was recovered in Bandon Garda Station on the mobile telephone taken from James Tobin.

9 On the 2nd June, 2004, the gardaí had searched the applicant's home but had not searched his car which was then parked outside the house. Evidence was given by Detective Sergeant McCarthy during the trial that while the applicant was in the garda station on the 3rd June, 2004, he was overheard making a telephone call to some person and saying the following:-

"If the alarm goes off in my car, you can break the window."

10 On overhearing this instruction the gardaí went with all possible haste to the applicants” home at Inchydoney and arrived there within fifteen minutes. On arrival it was noted that the alarm in the applicant's car had been activated and a side window, which had been intact the previous day, was now smashed. The applicant's father, brother and girlfriend were standing to the rear of the car. This car was a silver Honda. On searching the car, the gardaí found a small compartment in the driver's door in which the swipe card to the car park at South Terrace Court was located.

11 The prosecution rely on these facts which were established in evidence as being adequate to allow the trial judge rule, as he did, that the case should go for consideration by the jury. Mr. Niall Durnin, senior counsel for the applicant, submitted that, following the test laid down inR v. Galbraith [1981] 1 WLR 1039 and accepted in this jurisdiction in The People (Director of Public Prosecutions) v Higginbotham (unrep, CCA, 17 Nov 2000), the trial judge should have acceded to his request at the conclusion of the prosecution case for a direction that there was no sufficient evidence upon which the jury could properly convict. He submitted that the prosecution had failed to establish all the ingredients of...