DPP v Perry Wharrie

• Jurisdiction: Ireland
• Judgment Date: 19 April 2013
• Neutral Citation: [2013] IECCA 20
• Date: 19 April 2013
• Court: Court of Criminal Appeal

[2013] IECCA 20

COURT OF CRIMINAL APPEAL

MacMenamin J.

de Valera J.

McGovern J.

CCA No. 218/2008

DPP v Wharrie

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/RESPONDENT

AND

PERRY WHARRIE

RESPONDENT/APPELLANT

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S15(A)

DPP v NEVIN 2003 3 IR 321

D v DPP 1994 2 IR 465

R v WEST 1996 2 CR APP R 374

RATTIGAN v DPP 2008 4 IR 639

DPP v DUMBRELL UNREP CCA 28.7.2010 2010 IECCA 84

DPP v DUFF 2010 3 IR 412

DPP v LAIDE & RYAN 2005 1 IR 209

MISUSE OF DRUGS ACT 1977 S26

BYRNE v GREY 1988 1 IR 31

SIMPLE IMPORTS LTD v COMMISSIONERS OF INLAND REVENUE 2000 2 IR 243

THE SS GAIRLOCH & ABERDEEN GLEN LINE STEAMSHIP CO v MACKEN 1899 2 IR 1

DPP v MADDEN 1977 IR 336

DPP v KELLY UNREP CCA 29.4.2005 2005/20/4148 2005 IECCA 50

HAY v O'GRADY 1992 1 IR 210 1992 ILRM 689

DPP v OWENS 1999 2 IR 16

R v GALBRAITH 1981 1 WLR 1039

DPP v BARNWELL UNREP CCA 24.1.1997 1998/15/5319

DPP v LACEY UNREP CCA 3.7.2002

MISUSE OF DRUGS ACT 1977 S1(2)

R v SEARLE 1971 CLR 593

DPP v FOLEY 1995 1 IR 267

R v SEYMOUR 2008 1 AC 713

R v HUSSEIN 2011 1 QB 1

DPP v CRONIN (NO.2) 2006 4 IR 329

DPP v VAN ONZEN & HOOPMANS 1996 2 ILRM 387

MISUSE OF DRUGS ACT 1977 S20

Criminal law - Unlawful importation of drugs - Fair procedures - Appeal against conviction - Fundamental error of law or irregularity - Prejudicial effect - Pre-trial publicity - Contempt of court - Admissibility of evidence - Search warrants - Joint enterprise - Standard of proof - Burden of proof - Misuse of Drugs Act 1977

Facts: On the 22 ^nd July 2008, the appellant was charged, tried and convicted with three drug related charges, namely simple possession of a controlled drug under s. 3 of the Misuse of Drugs Act 1977 (the ‘1977 Act’); possession of a controlled drug with intent to sell or supply pursuant to s. 15 of the 1977 Act; and possession of a controlled drug with intent to sell or supply that had a value that exceeded €13,000 pursuant to s. 15A of the 1977 Act. It was alleged that the appellant was involved in an attempt to smuggle an amount of cocaine valued between €100m and €440m into Ireland from Venezuela with the use of a catamaran. The parties involved were to meet at a navigation buoy 30 miles from the Irish coast, where the drugs were to be moved onto rigid inflatable boats and then taken ashore. However, the operation was detected when one of the boats became stranded before reaching the coast. Four men, including the appellant, were arrested at the scene and charged with the offences. The prosecution had not alleged that the appellant was on the catamaran or the rigid inflatable boat at any stage, instead making the case that he had been on the mainland waiting for the delivery of drugs. The jury was therefore asked to infer that given the complexity of the smuggling attempt, the appellant was involved in the crime as part of a large scale joint enterprise. One of the four pleaded guilty prior to his trial, with the other three contesting the charges. A jury verdict unanimously found the three guilty of the drugs offences.

The appellant sought to appeal his conviction. The appellant argued that the extent of the pre-trial publicity had given rise to a newspaper article that had a prejudicial effect by inferring that the involved men were guilty of the crimes they”d been charged with. The trial judge was alerted to the article by defence counsel who argued that it was a contempt of court and the trial should not go on due to the prejudicial effect it may have any on the jury if they had read it or heard about it. The trial judge decided that the extent of the publicity was not such as to warrant the discharge of the jury. The first ground of the appellant”s appeal was that the trial judge erred in reaching this decision.

The appellant also argued that some of the evidence should not have been admissible during the trial. Evidence had been gathered as a result of a number of searches after warrants for this purpose had been issued. These search warrants were challenged during the trial by voir dire. The appellant claimed that the findings of the voir dire made it clear that the information advanced by the Gardai in applying for the search warrants differed from the information they had actually received from members of the public at the time of arrests. The appellant claimed the trial judge had been alerted to this but that he had been erroneously told that it was for the defendants to demonstrate the irregularity.

Finally, the appellant argued that the trial judge should have directed a not guilty verdict to the jury on the basis that in light of the fact there was no suggestion of possession of illegal drugs by the appellant, the prosecution had failed to establish he was involved in a joint enterprise in relation to the drug smuggling operation.

Held by MacMenamin J (with DeValera J and McGovern J concurring) that it was clear when the present case was compared with other high profile cases, that the extent of the pre-trial coverage was limited with possible prejudicial media outputs confined to a single unsubstantiated newspaper article, buried within its pages. There was also no evidence presented to show that any of the jurors had actually read the article, never mind been influenced by it. Any prejudicial effect was said to have been dealt with by the trial judge through warnings to the jury. On that basis, the appeal on that point was dismissed. In terms of the irregularities in the search warrants” applications, it was held that the prosecution had in fact convinced the court to the necessary standard that the irregularities (if any) would not give rise to any contamination. The appellant had been given an opportunity to convince the judge otherwise but had simply failed to do so. No erroneous burden of proof was therefore placed upon him.

In relation to the appellant”s point regarding possession, it was held that in light of the prosecution”s evidence, it was open to the jury to find that the appellant had the necessary knowledge and control in the operation to make him guilty of possession of illegal drugs by joint enterprise. The trial judge”s direction to the jury on this point of law was also deemed to be adequate.

Appeal against conviction refused.

1 1. The judgment which follows concerns the appeal of the appellant, who was convicted of three offences before the Circuit Criminal Court on the 22 ^nd July, 2008, after a trial lasting 41 days. The convictions in question were under the Misuse of Drugs Act 1977, namely, (i) simple possession of a controlled drug under s. 3 of the Act of 1977, as amended; (ii) possession of such a drug for the purposes of sale or supply pursuant to s. 15 of the Act of 1977, as amended; and (iii) possession for sale or supply of such a drug, the value of which exceeded €13,000, pursuant to Section 15A of the Misuse of Drugs Act 1977, as amended. The convictions, which are the subject of this judgment, related to an attempt to import into the State a consignment of cocaine which had been brought across the Atlantic from Venezuela in a catamaran, the "Lucky Day", to a meeting point at a navigation buoy some 30 miles off the coast of West Cork. The cocaine, some 1.5 metric tonnes was thereafter to be transferred into a rigid inflatable boat (a "RIB") and landed at Dunlough Bay near Mizen Head. The consignment was the largest seizure in the history of the State. In total, it amounted to approximately 1,554 kilos. At the trial and sentencing stage, it was variously stated to have values ranging between €100m and €440m. The cocaine was of a very high purity, and was contained in bales. The crime was detected as a result of the RIB foundering off the coast. One of the accused, Martin Wanden, was removed from the sea in very close proximity to 62 bales of cocaine and the sunken RIB at 9.30 a.m. on the morning of the 2 ^nd July, 2007. Another of the accused, Gerard Hagan, pleaded guilty prior to the trial in Cork Circuit Court. The appellant herein, together with two other accused, Martin Wanden and Joseph Daly, were tried before a jury, after which they were convicted on a unanimous verdict. One of those convicted, Joseph Daly, appealed his conviction, but subsequently withdrew that appeal.

Background

2 2. On the morning of the 2 ^nd July, 2007, Gerard Hagan, one of those convicted, called to a house owned by the O'Donovan family in Dunlough Bay. He informed the occupants that three people had been in a boat which had sunk; that he and one other of those in the boat had got ashore; but, one remained in the water needing help. Mr. Hagan was wet and cold. Despite his attempts to avoid a callout, the emergency services were alerted. At the time, there was a force 5 or 6 wind. There was a heavy swell. The emergency services arrived by lifeboat. They lifted Mr. Wanden out of the sea. Both Martin Wanden and Gerard Hagan were brought to Bantry Hospital suffering from hypothermia. The local Coast Guard quickly formed the view that this had been an attempted drug importation. During the rescue operation, the bales containing cocaine were plainly visible floating in the water. The extraordinary circumstances precluded any possibility that what had been in contemplation and execution was some form of fishing expedition which had gone wrong.

3 3. The investigation disclosed that there was a green LandRover Defender abandoned at the headland overlooking Dunlough Bay. This was just one element of a large scale logistical operation involved in the importation. The local Coast Guard encountered two men on the headland. These were the appellant, Perry Wharrie, and his co-accused, Joseph Daly. Members of the Coast Guard approached the men. They indicated that...