DPP v Timmons
| Jurisdiction | Ireland |
| Judge | Macken, J. |
| Judgment Date | 12 April 2011 |
| Neutral Citation | [2011] IECCA 13 |
| Court | Court of Criminal Appeal |
| Date | 12 April 2011 |
[2011] IECCA 13
THE COURT OF CRIMINAL APPEAL
Macken, J.
Budd, J.
Hanna, J.
MISUSE OF DRUGS ACT 1977 S15
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
DPP v BOWES (NO 1) 2004 4 IR 223 2004/14/3227 2004 IECCA 44
DPP v MCGARTLAND UNREP CCA 20.1.2003 2003/18/4139
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)
DPP v BOWES (NO 2) UNREP CCA 20.1.2006 2007/16/3411 2006 IECCA 183
R v SIRACUSA 1990 90 CR APP R 340 1989 CRIM LR 712
R v PATEL UNREP 7.8.1991 EWCA CRIM (EX TEMPORE)
R v TAYLOR 2002 CRIM LR 205 2001 EWCA CRIM 1044
DPP v MULDER 2007 4 IR 796 2007/20/4152 2007 IECCA 63
R v SAWYER 1980 71 CR APP R 283
BULA LTD & ORS v TARA MINES LTD & ORS (NO 6) 2000 4 IR 412 2000/3/925
MISUSE OF DRUGS ACT 1977 S15(2)
D v DPP 1994 2 IR 465 1994 1 ILRM 435 1993/11/3372
Z v DPP 1994 2 IR 476 1994 2 ILRM 481 1994/7/1949
KELLY v O'NEILL & BRADY 2000 1 IR 354 2000 1 ILRM 507 2000/11/4219
KELLY v TRINITY COLLEGE DUBLIN UNREP SUPREME 14.12.2007 2007/32/6594 2007 IESC 61
R v SIDHU 1994 98 CR APP R 59 1993 CRIM LR 773
DPP v MCNEILL UNREP CCA 31.7.2007 2007/20/4087 2007 IECCA 95
R v PETTMAN UNREP EWCA CRIM 2.5.1985 (EX TEMPORE)
R v SAWONIUK 2000 2 CR APP R 220 2000 CRIM LR 506
R v M (T) & ORS 2000 1 WLR 421 2000 1 AER 148
MCGRATH EVIDENCE 2005 CHAP 9
DPP v K (B) 2000 2 IR 199 2000/7/2696
MAKIN v AG FOR NEW SOUTH WALES 1894 AC 57
DPP v BOARDMAN 1975 AC 421 1974 3 WLR 673 1974 3 AER 887
DPP v CRONIN (NO 2) 2006 4 IR 329 2006 2 ILRM 401 2006/13/2579 2006 IESC 9
DPP v GILLIGAN (NO 3) 2006 3 IR 273 2007 1 ILRM 182 2006/18/3770 2006 IESC 42
R v GALBRAITH 1981 1 WLR 1039 1981 2 AER 1060 1981 73 CR APP R 124
DPP v MEEHAN UNREP CCA 24.7.2006 2006/19/4030 2006 IECCA 104
DPP v MURPHY 2005 2 IR 125 2005/21/4292 2005 IECCA 1
CRIMINAL LAW
Trial
Conspiracy - Drugs offences - Charge to jury - Treatment of supportive evidence by trial judge - Failure to warn jury not to carry out internet searches - Whether duplicity in charge - Whether jury unease arising from individuals staring at them could demonstrate objective bias against accused - Whether evidence relevant to be assessed in context of defence advanced by accused - Whether evidence sufficiently connected to accused to amount to possession or control - Whether background narrative misconduct evidence admissible - Whether evidence of surveillance permissible where it referred to the operational activities of gardaí - Whether surveillance contrary to article 8 of European Convention on Human Rights - Whether evidence required of conspiracy relating to specific identified drugs - Whether weight of evidence supported conviction for conspiracy - Appeal dismissed (28/2009 - CCA - 12/4/2010) [2011] IECCA 13
People (DPP) v Timmons
Facts The applicant sought leave to appeal on a number of grounds against his conviction for the common law offence of conspiracy to commit a crime, namely unlawful possession of a controlled drug for the purpose of sale or supply, contrary to the provisions of s. 15 of the Misuse of Drugs Act, 1977, as amended. The applicant submitted that the verdict of the jury was perverse, in that it was inconsistent with the evidence and he further submitted that there was no evidence that the applicant conspired with the two co-accused, or with others to possess controlled drugs or to possess cocaine on the relevant date. The applicant also submitted that the learned trial judge committed a fundamental error in law by admitting into evidence material obtained from mobile phones and a notebook located in the residence of the applicant and further that the learned trial judge wrongly failed to explain to the jury how the mobile phone evidence should be treated, as at its highest it was alleged to be "only supportive" of the prosecution case. It was also submitted on behalf of the applicant that the learned trial judge failed to discharge the jury in circumstances where the prosecution repeatedly referred to the applicant as being the subject "of surveillance" and by virtue of the use of the word "targets" when referring to the applicant and the other co-conspirators. The applicant also submitted that the learned trial judge failed to discharge the jury and failed to withdraw the charges from the jury on the basis that the indictment was void for duplicity and failed to discharge the jury upon the application of counsel for the accused, in circumstances where evidence was tendered that certain female jurors felt uneasy and self conscious about using the same lobby as so called supporters of the applicant. Finally it was submitted that the learned trial judge failed to correctly charge the jury in relation to the offence of conspiracy and in failing to warn the jury not to carry out internet searches in respect of the applicant.
Held by C.C.A., Macken J. (Budd, Hanna JJ) in refusing the application: That the warning given by the trial judge to the jury was that they must confine themselves to determining matters on the basis of evidence heard solely in the course of the trial and not by reference to extraneous matters. That warning was both measured and appropriate. There was no evidence to support the contention that there was a real risk of an unfair trial having regard to the failure to warn about internet searches. There was no duplicity in the indictment. The offence was one which permitted its commission in more than one way but the charge did not by that fact become void. The applicant failed to establish even an arguable case that there was objective bias on the part of the jury having regard to the unease felt by some of its members. The evidence of material obtained from phones and a notebook was relevant evidence and its probative value outweighed its prejudicial effect. The learned trial judge was entitled to admit the evidence on that basis and also on the basis that it was misconduct evidence relevant to issues in the trial. No material was put forward on behalf of the applicant upon which it could have been reasonably suggested that the use of the word "surveillance" by the Gardai in their evidence was such as to have formed a basis for even the likelihood of a serious risk of an unfair trial. The English cases relied upon by the applicant in support of the ground concerning lack of evidence of a conspiracy were of no assistance due to the fact that the English law creates a statutory division of drugs into different classes. Furthermore, the learned trial judge fully charged the jury on all essential ingredients required of the prosecution to establish the relevant offence in this jurisdiction. Also, the learned trial judge's decision to reject the application for a direction, on the alleged basis that the prosecution had not adduced any evidence from which a jury could properly convict the applicant of the offence of conspiracy, was a valid and proper exercise of the discretion vested in her. Finally, no basis was put forward to support the allegation that the learned trial judge failed to charge the jury adequately and no reason was put forward for the failure to raise requisitions in respect of same at the trial.
Reporter: L.O'S.
Judgment of the Court delivered on the 12th day of April,, 2011 by Macken, J.
This is an application for leave to appeal against conviction, the applicant having been convicted on the 12 th December, 2008 at Dublin Circuit Criminal Court of a common law offence. This was conspiracy to commit a crime, that is to say, unlawful possession of a controlled drug for the purposes of sale or supply, contrary to the provisions of s.15 of the Misuse of Drugs Act, 1977, as amended. The offence was alleged to have occurred on the 14 th September, 2006. A sentence of eight years was imposed. The grounds for leave to appeal are listed as being fourteen in all. They are in the following terms:
(1) That the verdict of the jury was perverse, in that it was inconsistent with the evidence, because the jury could not have found beyond reasonable doubt that the applicant had committed the offence.
(2) That the learned trial judge had committed a fundamental error in law by admitting into evidence material, or information, obtained from mobile phones and from a notebook, all located in the residence of the applicant, and had thereby failed to ensure that the applicant had a fair trial.
(3) The learned trial judge had wrongly failed to explain to the jury how the mobile phone evidence should be treated; at its highest it was alleged it was "only supportive" of the prosecution case.
(4) That the learned trial judge had erred in law in failing to discharge the jury on the application made on behalf of the applicant by his counsel, in circumstances where the prosecution had repeatedly referred to the applicant as being the subject "of surveillance", and by virtue of the use of the word "targets" when referring to the applicant and other co-conspirators, and had failed in law by permitting the fact of surveillance to be introduced, contrary to the provisions of Article 8 of the European Convention on Human Rights and Fundamental Freedoms.
(5) The learned trial judge failed to grant a direction on the application of the applicant, on the basis that there was no evidence that the applicant, in fact, conspired with "BT" and "JG" to possess a controlled drug, cocaine, on the relevant date.
(6) The learned trial judge erred in failing to grant a direction that there was no case to answer, there being no evidence that the applicant had, in fact, conspired with others to possess controlled drugs.
(7) The learned trial judge erred in failing to grant a direction,...
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DPP v Timmons
...consideration, the issue of sentence, if the same should arise. The judgment on that appeal was delivered on the 12th April, 2011 ( [2011] I.E.C.C.A. 13). Following a lengthy review of each ground of appeal and a detailed consideration of the submissions made in support thereof, the applica......