DPP -v- Power, [2007] IESC 31 (2007)

Docket Number:459/06
Party Name:DPP, Power
Judge:Finnegan J.


459 of 06

Murray C.J.

Denham J.

Fennelly J.

Macken J.

Finnegan J.








JUDGMENT of Mr Justice Finnegan delivered on the 26th day of July 2007

The appellant was charged with an offence contrary to section 15A of the Misuse of Drugs Act 1977 as inserted by section 4 of the Criminal Justice Act 1999. He stood trial at Waterford Circuit Criminal Court on the 26th, 27th and 28th November 2004. The defence did not go into evidence. The appellant was convicted and sentenced to ten years imprisonment. In the course of requisitions on the learned trial judge's charge counsel for the appellant made a submission in the following terms -

There is just one matter, My Lord, if I may bring to Your Lordship's attention…I think it is incumbent on Your Lordship to indicate that the jury must be satisfied that the accused knew or ought to have known at the time of the value of the drugs. It is a matter for Your Lordship.

The learned trial judge refused the application. Leave to appeal was refused and the appellant applied to the Court of Criminal Appeal for leave to appeal. The grounds of the application included the following -

That the learned trial judge erred in law and in fact in failing to direct the jury that it was a necessary ingredient in the offence contrary to section 15A that the accused was aware that the quantity of the controlled drug alleged to be in his possession exceeded the statutory amount.

In an ex tempore judgment on the 22nd May 2006 the Court of Criminal Appeal held that section 15A properly interpreted does not require a mens rea element in relation to the value of the drugs involved in the offence. To succeed it is necessary for the prosecution to objectively establish that the value of the controlled drugs are of the statutory value or greater. It is not necessary to prove that the accused knew or ought reasonably to have known that such was the value. Any other interpretation would make section 15A unworkable. The appellant applied for a certificate under section 29 of the Courts of Justice Act 1924 (as substituted by section 22 of the Criminal Justice Act 2006) and the Court of Criminal Appeal certified that its decision involved a point of law of exceptional public importance that is to say -

In the prosecution of an offence contrary to section 15A of the Misuse of Drugs 1977 (as inserted by section 4 of the Criminal Justice Act 1999) what mens rea must the prosecution prove?.

The statutory provisions

The long title to the Misuse of Drugs Act 1977 reads as follows -

"An Act to prevent the misuse of certain dangerous or otherwise harmless drugs, to enable the Minister for Health to make for that purpose certain regulations in relation to such drugs, to enable that Minister to provide that certain substances shall be poisonous for the purposes of the Pharmacy Acts 1875-1962, to amend the Pharmacopoeia Act 1931, the Poisons Act 1961, the Pharmacy Act 1962, and the Health Acts 1947-1970, to repeal the Dangerous Drugs Act 1934, and section 78 of the Health Act 1970, and to make certain other provisions in relation to the foregoing."

The Act contains provisions regulating the manufacture, importation, supply, transportation and prescription of controlled drugs but more particularly creates a number of offences relating to the possession of controlled drugs in sections 3, 15, 16 and 17. Defences generally are dealt with in section 29 of the Act which insofar as is relevant to this appeal provides as follows -"29(1) In any proceedings for an offence under this Act in which it is proved that the defendant had in his possession or supplied a controlled drug, the defendant shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance, product, or preparation in question was the particular controlled drug alleged.

(2) In any such proceedings in which it is provided 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 -

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

(ii) that he was in possession of a controlled drug or such a prescription, as may be appropriate, or (b) he believed the substance, product or preparation to be a controlled drug, or a controlled drug of a particular class or description, and that, if the substance, product or prescription had in fact been that controlled drug or a controlled drug of that class or description, he would not at the material time have been committing an offence under this Act, or

(c) knowing or suspecting it to be such a drug or prescription, he took or retained possession of it for the purpose of -(i) preventing another from committing or continuing to commit an offence in relation to the drug or document, as may be appropriate, or

(ii) delivering it into the custody of a person lawfully entitled to take custody of it,and that as soon as practicable he took all such steps as were reasonably open to him to destroy the drug or document or to deliver it into the custody of such a person."

The Criminal Justice Act 1999, the long title thereof, commences as follows -

"An Act to create a new drug offence…"

Part II of the Act is entitled -"Amendments to provide for new drug related offence". In Part II, section 4 provides as follows -"4. The Act of 1977 is hereby amended by the insertion after section 15 of the following section:'15A(1) A person shall be guilty of an...

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