DPP v Murray

• Jurisdiction: Ireland
• Judge: Murray, J.
• Judgment Date: 16 May 2001
• Neutral Citation: 2001 WJSC-CCA 2080
• Court: Court of Criminal Appeal
• Date: 16 May 2001

2001 WJSC-CCA 2080

THE COURT OF CRIMINAL APPEAL

Murray, J.

Smith, J.

Herbert, J.

Record No: 35/99

DPP v. MURRAY

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

V

MARTIN MURRAY

Applicant

Citations:

MISUSE OF DRUGS REGS 1998 ART 4(1)(b)

MISUSE OF DRUGS 1977 S5

PEOPLE V TRAYERS 1956 IR 110

Synopsis:

EVIDENCE

Appeal

Circuit Court - Fair procedures - Drugs offences - Heroin -Whether trial judge correctly charged jury with regard to evidence - Whether sentence imposed proportionate to offence - Misuse of Drugs Regulations 1998, article 4 (1) (b) - Misuse of Drugs Act, 1977 section 5 (35/1999 - Court of Criminal Appeal - 16/5/01)

DPP v Murray

The applicant had been convicted and sentenced in respect of drugs offences and was sentenced to seven and a half years imprisonment. The applicant sought leave to appeal both against conviction and sentence. Murray J delivering judgment held that the jury had been properly charged and the sentence imposed was proportionate to the offence. The application was dismissed.

1 16th day of May, 2001. Murray, J.

Murray, J.

2 On 11th February, 1999 the Applicant was convicted following a trial in the Circuit Court, Naas, Co. Kildare of having in his possession in a controlled drug, diamorphine, otherwise known as heroin, for the purpose of unlawfully supplying it to another in contravention of Article 4(1)(b) of the Misuse of Drugs Regulations 1998 made under section 5 of the Misuse of Drugs Act 1977. He was sentenced to 7½ years imprisonment. He has applied for leave to appeal against conviction and sentence.

3 The facts of the case so far as they are relevant to this application, are that on the 6th October, 1996 the gardai were aware that a quantity of heroin contained in a coffee jar had been hidden in some ivygrowth on a wall adjacent to the public road in the townland Huttonread, Blackchurch, Co. Kildare. At this location there was a farmgate at the entrance to a large field. The entrance was bounded by two gate pillars and a fairly short length of wall on either side and otherwise the adjacent fields were bounded by hedges and trees. The jar containing a quantity of heroin was hidden in the ivy on the wall adjacent to one of the pillars. The gardai decided to place the location in question under surveillance in the afternoon of October, 6 during daylight. At about 7.45pm, after darkness had set in, a Toyota motorcar stopped near the gate. A man got out and was observed by the gardai to use the area of the gateway to urinate while at the same time looking around and scanning the scene. He then left in his Toyota car. As it pulled away a second car arrived and stopped at the gate. The driver left the lights on in the car, got out and walked towards the gate. He was identified as the accused. He acted as if he was about to urinate but didn't and while under the surveillance of the gardai who were nearby he put his hand in to the ivy and took out the jar. At that stage, Detective Garda Peter McGuinness and Detective Garda Coller jumped out from their concealed positions and grabbed the Accused who had the jar in his hand. At least one of the gardai was armed and evidence was given that when grabbed that Accused said "put that away, it's only powder." The jar was found to contain a quantity of heroin.

4 There was also evidence that subsequent to the arrest of the Accused the gardai found another jar containing drugs and weighing scales in the position where the jar picked up by the accused had been found. Detective garda McGarrity gave evidence of taking up surveillance duty near the scene with D/Garda McConnack. Both were in a car. She observed a Volvo motor car driving in the Naas direction. They followed this car for a short distance and warned other members of it's approach by radio. She observed the car drive towards the gate area in question. The car she was in stopped about a quarter of a mile from the gate. On receiving a radio message they went to the scene where she observed the accused under arrest. At the scene she was given a coffee jar containing a large amount of heroine. Subsequently at Naas Garda Station she searched the accused's motor car and found a roll of plastic bags. Detective Garda McCormack gave evidence of taking up duty with Detective Garda McGarrity. He was driving the official vehicle. He observed the Volvo driving in the Naas direction towards the area in question. He followed this car from a distance and observed it turning in near the location where the powder was concealed. He stopped the car and after a short time went to the scene on receipt of a radio message. He observed the accused under arrest at the scene. Subsequently he drove the Volvo car to Naas Garda Station.

5 Evidence was also given of interviews which the gardai had with the accused while in custody. When notes of the interviews were read over to the Accused he refused to sign them pointing out that they were not a correct account of what he had said. No issue arises in the appeal concerning the interviews nor concerning the forensic evidence that the substance found in the jars was diamorphine otherwise known as heroine.

6 Detective Garda Dempsey gave evidence of finger print examination carried out on various exhibits. In respect of exhibit 1, the coffee jar which the accused was alleged to have picked up from its hidden location, there was one fingerprint. On another jar there were three fingerprints and on two plastic bags (which were bags found in the jars) one had one finger print and another had three fingerprints. None of these proved to be a finger print of the accused.

7 The accused, having pleaded not guilty, gave evidence denying any involvement or association with the drugs at the location in question. He was travelling along the road in question when he decided to pull in to urinate. When doing so he was jumped on by the gardai. There was something put in to his hands before he was handcuffed behind his back. He did not say "put that away, it's only powder". He denied making any of the inculpatory remarks during the course of interview in the garda station. The garda account was untrue and he was being framed. He had no plastic bags in his car. This was a fabrication. A finger print expert was also called to give evidence on his behalf. He had the examined exhibits containg fingerprints. He confirmed the garda evidence that there was no fingerprints or palm print of the accused on any of the exhibits. He stated that it would not have been unreasonable to expect a person holding and pulling a jar would have left something on it. He also said, inter alia, that in certain circumstances it was possible for a person to handle a jar without leaving fingerprints. The defences was that the Accused never touched the jar, which was evidences by the absences of his fingerprints on it and that the evidences tendered by the gardai implicating him in the offence was untrue.

Grounds of Appeal:-

8 The first ground of appeal is that the learned trial judge, in his charge to the jury concerning the plastic bags said to have been found in the Applicant's motor car was not balanced or fair and was prejudicial to a fair trial because he told the jury that the evidence on this point was accepted without any contest whereas it was vigorously contested by the Applicant under cross examination by Counsel for the prosecution.

9 In support of this contention, Counsel for the Applicant relied on the following passage from the judge's charge at the page 64 of the transcript (day 2), "[Detective Garda Mc Garrity] said to you that having searched Mr Murray's car she found a roll of...