DPP v Rattigan

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 10 October 2018
• Neutral Citation: [2018] IECA 315
• Docket Number: Record No: 90/2013
• Court: Court of Appeal (Ireland)
• Date: 10 October 2018

[2018] IECA 315

THE COURT OF APPEAL

Edwards J.

Edwards J.

Hedigan J.

McGovern J.

Record No: 90/2013

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

BRIAN RATTIGAN

Appellant

Conviction – Drug offences – Unsafe conviction – Appellant seeking to appeal against conviction – Whether conviction was unsafe

Facts: The appellant, Mr Rattigan, on the 12th of February 2013, was convicted by the Special Criminal Court following a trial on indictment of the following offences: Count 1, being in possession of a controlled drug, to wit Diamorphine, with a market value of €13,000 or more, for the purpose of selling or otherwise supplying it to another, contrary to s. 15A of the Misuse of Drugs Act 1977; Count 2, being in possession of a controlled drug, to wit Diamorphine, for the purpose of selling or otherwise supplying it to another, contrary to s. 15 of the 1977 Act; and Count 3, being in possession of a controlled drug, to wit Diamorphine, contrary to s. 15 of the 1977 Act. The appellant was acquitted on two additional charges being Counts 4 and 5, respectively, on the same indictment, each of which alleged offences under s. 36 of the Prisons Act 2007, involving having possession of a mobile telecommunications device within a prison without the permission of the governor of the prison. On the 20th of March 2013, the appellant was sentenced to imprisonment for seventeen years on Count 1 and Count 2, respectively, and to imprisonment for five years on Count 3, all sentences to run concurrently and to date from the 1st of June 2008. The appellant appealed to the Court of Appeal against his conviction on the grounds that the trial court erred in law and in fact in: (1) upholding the lawfulness of the search warrant for 9 Hughes Road South; (2) upholding the lawfulness of the warrant to search cell 42 in El landing in Portlaoise; (3) admitting any evidence with regard to the Nokia phone (Garda exhibit number JMG1) and printouts and analysis of same; (4) accepting that Sergeant Roberts was entitled and/or that he had sufficient expertise and knowledge to give evidence in respect of the valuation of the drugs seized; (5) accepting that Sergeant Roberts was entitled, and/or that he had sufficient expertise and knowledge, to give evidence in respect of the understanding of what various language, words, symbols or items meant in the context of the prosecution; (6) upholding the lawfulness of the search warrant for 290 Cooley Road; (7) convicting the appellant of Count 1 in circumstances where there was no evidence of the purity of the drugs seized at 9 Hughes Road South; and (8) convicting the appellant of Counts 1, 2 and 3 on the indictment in circumstances where there was insufficient evidence that he was in possession of the drugs seized at 9 Hughes Road South.

Held by the Court that it saw fit to reject all of the appellant's grounds of appeal, being satisfied that his trial was satisfactory and that his conviction was safe.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 10th of October 2018 by Mr. Justice Edwards .

Introduction

1 On the 12th of February 2013 the appellant was convicted by the Special Criminal Court following a trial on indictment of the following offences:

• Count No. 1, being in possession of a controlled drug, to wit Diamorphine, with a market value of €13,000 or more, for the purpose of selling or otherwise supplying it to another, contrary to s.15A of the Misuse of Drugs Act, 1977, as inserted by s.4 of the Criminal Justice Act 1999 and as amended by s.81 of the Criminal Justice Act, 2006;

• Count No. 2, being in possession of a controlled drug, to wit Diamorphine, for the purpose of selling or otherwise supplying it to another, contrary to s.15 of the Misuse of Drugs Act, 1977;

• Count No. 3, being in possession of a controlled drug, to wit Diamorphine, contrary to s.15 of the Misuse of Drugs Act, 1977.

2 The appellant was acquitted on two additional charges being Count No's 4 & 5, respectively, on the same indictment, each of which alleged offences under s.36 of the Prisons Act 2007, involving having possession of a mobile telecommunications device within a prison without the permission of the governor of the prison.

3 On the 20th of March 2013, the appellant was sentenced to imprisonment for seventeen years on Count No. 1 and Count No. 2, respectively; and to imprisonment for five years on Count No. 3; all sentences to run concurrently and to date from the 1st of June 2008.

4 The appellant now appeals against his conviction.

The evidence on which the appellant was convicted.

5 The Special Criminal Court heard evidence that, on the 21st May 2005, a search took place at 9 Hughes Road South, Walkinstown, Dublin 12, and this search took place on foot of a search warrant that had been obtained in circumstances wherein Detective Inspector Brian Sutton had come into receipt of confidential information that there was a large quantity of drugs to be found at the abovementioned address and it was going to be moved quickly.

6 A search warrant was therefore obtained and a team of Gardaí arrived at 9 Hughes Road South and a search was subsequently carried out. As a result of the search a large quantity of diamorphine, which was said to have a street market value of close to €1 million, was discovered in a shed at the back of the house. Additionally, a red and white Nokia phone and charger, which were charging at the time, were found in the same garden shed. Furthermore, an electric weighing scales was also found in the house itself, which was the house of Mr Anthony O'Connell. In Mr O'Connell's bedroom a large sum of money at the base of the bed, and another smaller sum elsewhere in the bedroom, and another small sum in pockets, with a total value of €36,000 were also found.

7 During the search of 9 Hughes Road South a number of other telephones and telephone devices, namely SIM cards, were also found and seized. During the search a man by the name of Mr Anthony Cannon called to the house. He was searched and his phone was seized.

8 On the red and white Nokia phone there was a text message and the content of that text message appeared to be for the break-up of a large amount of drugs into particular portions and for the division of a large quantity of heroin. That text message had been sent from a telephone device with the phone number - 0858102394. This number was associated with the appellant. At that stage he was a prisoner in Portlaoise Prison and had been in custody since 2003.

9 As a result of that discovery, search warrants were obtained on the following day, the 22nd of May 2008, to search a number of cells at Portlaoise Prison, including the cell occupied by the appellant on Landing E1, cell 42. The Gardaí attended at Portlaoise Prison, presented their warrants, were subjected to security procedures, searched, etc., and were brought to Landing E1. The Gardaí thereafter searched the appellant's cell. This was a single cell which was not shared with anyone else. He was on his bed with a mobile phone in his hand but, as the Gardaí were entering his cell, he threw the mobile phone out the door onto the landing. There was also CCTV footage which showed the mobile phone landing out on the landing. The phone that came out on the landing had two SIM cards, one of which was located in the actual mobile phone while the other was attached to the back of the mobile phone. A further search of the cell uncovered a Samsung mobile phone, another SIM card and some notebooks. The text message found on the red and white Nokia phone found charging in the garage of 9 Hughes Road South had been sent from the same number, 0858102394, which was the number of one of the devices thrown by the appellant from his cell onto the landing.

10 There was a text message found on Mr Anthony Cannon's mobile phone (this man arrived at 9 Hughes Road South as the Gardaí were conducting a search) and this shows as having been received at 10.29 am which reads: 'That dark is there.' The trial court had heard evidence that 'dark' is a slang word for heroin and that this was a message from a device in the control of the appellant in Portlaoise Prison to Mr Cannon, informing him that the consignment of drugs had arrived at 9 Hughes Road South. That message was sent from the same mobile phone number, 0858102934, the same phone that had sent the text message to the charging phone in the garage with the drugs.

11 There was another text message from the same number, 08581023894, which read: 'Can you give me half a box of the bad thing for 13? I'm waiting for a few bob so I can sort you out.' Another message from the same SIM card was addressed to the addressee called 'Lip' and the investigating Gardaí were satisfied to attribute this to Ms Tasha McEnroe, who was the then partner of the appellant. This message read: 'Drop €30 up to Parrot man.' The evidence was that this was the nickname of Mr Anthony O'Connell in whose house the drugs were found. The reference to '€30' was understood by Gardaí to refer to €30,000. The prosecution case was that this was significant in light of the very large sum of money found in the house (in excess of €30,000).

12 There was then another text sent from the device in the control of the appellant, addressed to a person described as Dicko which read: 'Change your number. They got greasy with five nasty. He fucked, it's on text.' The prosecution case was that this was a reference to Mr Anthony O'Connell, having being caught in possession of five kilos of heroin. Furthermore, there was an additional text sent to 'Lipps' which the Prosecution contended belonged to Ms McEnroe which read: ' Get rid of your phones quick.'

13 Notebooks were found in the appellant's cell in Portlaoise Prison when the Gardaí searched it. There was also a subsequent...