DPP v Smyth

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeMr. Justice Charleton
Judgment Date18 May 2010
Neutral Citation[2010] IECCA 34
Docket Number[C.C.A. Nos. 25 & 26 of 2009]
Date18 May 2010
DPP v Smyth

BETWEEN

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

AND

KIERAN SMYTH SENIOR AND KIERAN SMYTH JUNIOR
APPLICANTS

[2010] IECCA 34

Finnegan J.

Charleton J.

McMahon J.

[No. 25/2009]
[No. 26/2009]

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Burden of proof

Reversed burden of proof - Standard of proof - Onus of proof on accused - Proof beyond reasonable doubt - Balance of probabilities - Lower standard - Presumption of innocence - Possession of controlled drugs - Appropriate direction to jury - Whether reversed burden of proof compatible - Whether burden of proof shifts to defence to prove existence of reasonable doubt - Whether accused required to prove more than reasonable doubt - Whether jury adequately charged - Whether incorrect direction given to jury - People (DPP) v Byrne, Healy and Kelleher [1998] 2 IR 417 considered; People (DPP) v Noonan [1998] 2 IR 439 applied - Misuse of Drugs Act 1977 (No 12), ss 3, 15, 15A and 29(2) - Criminal Law (Insanity) Act 2006 (No 11), ss 4 and 6 - Constitution of Ireland 1937, Article 38.1 - European Convention for the Protection of Human Rights and Fundamental Freedoms, article 6(2) - Convictions quashed; retrial ordered (25 & 26/2009 - CCA - 18/5/2010) [2010] IECCA 34

People (DPP) v Smyth

Facts The applicants were convicted following a trial of possession of drugs for sale or supply pursuant to ss. 15 and 15A of the Misuse of Drugs Act, 1977 as amended and also of simple possession. The applicants herein argued that the learned trial judge misdirected the jury in their consideration of the defence to possession which is set out in s. 29(2) of the 1977 Act. The learned trial judge informed the jury that the burden of proving the guilt of the accused rested with the prosecution, and that burden, notwithstanding the relevant statutory provision never shifted to the defence. The judge went on to state; "If you believe, for example, that Mr. Smyth Senior, in your opinion knew nothing about this, if you're satisfied about that beyond reasonable doubt, or if you have a doubt, then you must give him the benefit of that and, similarly, you must look at Mr. Smyth Junior and apply the same principles".

Held by the CCA; Charleton J. (Finnegan, McMahon JJ) in allowing the appeal and ordering a re-trial: That it was no part of the reversed burden carried by either of the applicants for them to prove beyond reasonable doubt that they did not know and had no reasonable grounds for suspecting that what was in their possession was a controlled drug. Therefore, the direction of the learned trial judge was in error. An evidential burden of proof is cast on the accused by s. 29 of the 1977 Act, as amended, which is discharged when the accused proves the existence of a reasonable doubt that he did not know, and had no reasonable ground for suspecting that what he had in his possession was a controlled drug. In directing the jury on this issue, trial judges should in future, in the view of this court, give the ordinary direction as to the burden and standard of proof and the presumption of innocence. In stating the burden and standard of proof, however, a trial judge should point out that the prosecution are obliged to prove the elements of possession of the substance, and that the substance is a controlled drug, beyond reasonable doubt. A trial judge should then tell the jury that the burden of proof shifts to the defence to prove the existence of a reasonable doubt that the accused did not know and had no reasonable ground for suspecting that what he had in his possession was a controlled drug. It should be clearly stated that this burden cast on the accused is discharged if the defence prove a reasonable doubt, and no more than that, on that issue.

Reporter: L.O'S.

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S29(2)

MISUSE OF DRUGS ACT 1977 S29(1)

DPP, PEOPLE v BYRNE & ORS 1998 2 IR 417 1998/15/5287

MISUSE OF DRUGS ACT 1977 S15A

CRIMINAL JUSTICE ACT 1999 S4

DPP v POWER 2007 2 IR 509 2008 1 IRLM 161 2007/21/4396 2007 IESC 31

MISUSE OF DRUGS ACT 1977 S29(2)(A)

DPP, PEOPLE v NOONAN 1998 2 IR 439 1998 1 ILRM 154 1998/16/5937

MISUSE OF DRUGS ACT 1977 S29

CRIMINAL LAW (INSANITY) ACT 2006 S4

CRIMINAL LAW (INSANITY) ACT 2006 S6

HILL v BAXTER 1958 1 QB 277 1958 2 WLR 76 1958 1 AER 193

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(2)

R v LAMBERT 2002 2 AC 545 2001 3 WLR 206

R v BARR UNREP 24.6.2005 2005 EWCA CRIM 1764

MISUSE OF DRUGS ACT 1971 S28 (UK)

HENVEY v HM ADVOCATE 2005 SLT 384

CONSTITUTION ART 38.1

DPP v LAWLESS 3 FREWEN 30 1985/7/2010

1

1. This appeal concerns the nature of a reversed burden of proof in a charge of possession of controlled drugs. The Court also suggests the appropriate direction to a jury by a trial judge in that regard. Both applicants were charged with offences contrary to s. 15 of the Misuse of Drugs Act 1977, as amended, alleging that on the 20 th August, 2007, at Béal an Átha, Falcarragh in the county of Donegal, they were in possession of cannabis for the purpose of unlawful sale or supply, and that they were in possession of cannabis worth more than €13,000 for the purpose of unlawful sale or supply. The men were also charged with simple possession. They were tried before Letterkenny Circuit Criminal Court, His Honour Judge John O'Hagan presiding, on dates between the 3 rd and the 19 th June 2008. Mr. Smyth Junior was convicted unanimously on all three counts. Mr. Smyth Senior was convicted by a majority verdict on the three counts.

Ground of Appeal
2

2. Only one ground of appeal was argued. It was that in addressing the jury, the learned trial judge misdirected them in their consideration of the defence to possession which is set out in section 29(2) of the Misuse of Drugs Act, 1977. This, as to the material part reads:

"In any such proceedings in which it is proved that the defendant had in his possession a controlled drug... it shall be a defence to prove that:-"

2 (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

(ii) that he was in possession of a controlled drug."

3

3. Apart from considering the direction to the jury of the learned trial judge, the Court would wish to add some brief comments as to the form of direction which should be given in such cases.

Background
4

4. During the course of a routine search in the DHL compound in Dublin Airport in August, 2007, five substantial parcels were found to contain cannabis. The consignee of the drugs was named, and a telephone number was given. The gardaí took possession of the parcels. Using the information furnished to them they made contact with an individual by telephone. A rendezvous was arranged. There, the gardaí handed the parcels over to the two applicants. They were shortly after that arrested and charged and, as we know, later tried and convicted.

5

5. The defence case, as revealed in statements which the applicants made to the gardaí, and in the evidence at the trial of one of them, was that a friend had contacted Mr Smyth junior, the second applicant, and asked him to collect parcels containing computer parts. He was instructed to use a new mobile phone and to use an assumed name. Not being able to drive, as he claimed, Mr Smyth junior had asked his father Mr Smyth senior, the first applicant, to drive a van and help him with the parcels. For this, according to themselves, they were to receive a sum of around €300.

6

6. The evidence presented at the trial clearly proved that both applicants had taken possession of the parcels and that these contained cannabis of the herbal kind. Whereas it might be apparent to a trained police dog that the contents of the parcels were cannabis, as proven, to any ordinary individual, without prior knowledge, they would appear as just packages of a particular weight and size.

7

7. At the trial, apart from the facts previously indicated, other evidence was led, properly in the view of the Court, concerning what the gardaí had detected as to the movements and behaviour of the applicants prior to their arrest. From this, the prosecution were arguing that an inference could be drawn against the accused men of knowledge as to what was within the parcels. Under section 29(1) of the Misuse of Drugs Act, 1977, as amended, it is of no legal account that an accused person was of the view that a different controlled drug to cannabis, or as may be, was what he intended to possess. In other words, it is not a defence that the accused thought that he was in possession of heroin, whereas in fact it was cocaine.

The Charge
8

8. In opening the case, counsel for the prosecution scrupulously outlined, in concise form, the relevant legal principles applicable together with a summary of the facts. She indicated that the prosecution bore the burden of proving beyond reasonable doubt possession of the controlled drug, as charged, as against each accused. She next said that the burden of proof then shifted on to each accused to show that they did not know, and had no reasonable grounds for suspecting that what they had in their possession was a controlled drug. This burden, counsel outlined, was to be discharged by each accused proving that defence on the balance of probabilities.

9

9. The Court comments that on the state of the law as it was then understood, this explanation by counsel for the prosecution as to the reversed burden of proof was correct. In particular, it accorded with the judgment of this court in The People (D.P.P.) v. Byrne Healy and Kelleher [1998] 2 I.R. 417. It was not necessary, counsel for the prosecution correctly told the jury, in relation to the charge...

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26 cases
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1 books & journal articles
  • The Role of the Jury in the Insanity Defence: People (DPP) v Alchimionek [2019] IECA 49
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