DPP v Twesigye

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 13 May 2015
• Neutral Citation: [2015] IECA 99
• Court: Court of Appeal (Ireland)
• Date: 13 May 2015

[2015] IECA 99

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

Record No: 26/14

DPP v Twesigye

The People at the Suit of the Director of Public Prosecutions

Respondent

- v -

Charles Twesigye

Appellant

Conviction – Drug offences – Unlawful detention – Appellant seeking to appeal against conviction – Whether the trial judge”s ruling was lawful

Facts: The appellant, Mr Twesigye, was convicted in December, 2013 by a jury in the Circuit Criminal Court of counts one and two respectively upon a three count indictment. Count one charged possession of a controlled drug, contrary to s. 3 of the Misuse of Drugs Act 1977 and count two charged possession of a controlled drug for the purposes of selling it or otherwise supplying it to another, contrary to s. 15 of the 1977 Act. These guilty verdicts were both by a majority of eleven to one. The jury also acquitted the appellant of count three, which had charged possession of a controlled drug with a market value of €13,000 or more for the purposes of selling it or otherwise supplying it to another, contrary to s. 15A of the 1977 Act. The appellant was subsequently sentenced in January, 2014 to six years imprisonment with the final three years suspended on count number one, and to ten years imprisonment with the final three years suspended on count number two, the sentences to run concurrently. The appellant appealed to the Court of Appeal against his conviction on two grounds: 1) the trial judge erred in law by holding that the memoranda of interview should be admitted in evidence and by rejecting the argument put forward by the appellant as to their inadmissibility; and 2) the jury verdict convicting the appellant of an offence contrary to s. 15 of 1977 Act was perverse and should be quashed in circumstances where the proofs necessary for that offence were the same for those necessary for an offence contrary to s. 15A and the value of the drugs had not been put in issue by the defence, referring to People (DPP) v Maughan [1995] 1 IR 304. The appellant submitted that the trial judge erred in law in deciding that the detention of the appellant should not be calculated from the moment he was detained in his property, referring to People (DPP) v Boylan [1991] IR 477. The respondent, the DPP, contended that it was implicit in the trial judge”s ruling that she did not accept the evidence given by the appellant that he had been unlawfully detained for 58 minutes prior to his arrest, and that she was fully within her rights to implicitly reject the appellant”s version of events and find that there was no unlawful detention, distinguishing Boylan. The respondent submitted that it is not the case that the proofs in respect of s. 15 and s. 15A offences are the same as a s. 15A offence has an additional ingredient that must be proven, i.e., that the value of the drugs possessed was €13,000 or more.

Held by Edwards J that the trial judge was the person best placed to assess the credibility and reliability of the various witnesses who gave evidence relevant to the issue. The Court agreed with the respondent that Boylan was readily distinguishable on its facts. The Court was satisfied that the trial judge”s ruling was lawful, and that accordingly the appellant”s first period of detention ran from 2.58pm on the 28th August, 2012 when he was lawfully arrested; that being so, his detention was lawfully extended on the same date, and the inculpatory responses that he made to questions asked of him in subsequent interviews were properly admissible before the jury. The Court agreed with the respondent that the appellant had failed to establish that no reasonable jury could properly have reached the verdicts that it did. The Court further considered that the hypothesis advanced by the respondent as a possible explanation for the jury”s acquittal in respect of the s.15A charge was entirely plausible.

Edwards J held that in circumstances where the Court had not seen fit to uphold either ground of appeal, the appeal was dismissed and the convictions affirmed.

Appeal dismissed.

Introduction

1 On the 17 ^th December, 2013 the appellant was convicted by a jury in the Circuit Criminal Court of counts one and two respectively upon a three count indictment. Count number one charged possession of a controlled drug, contrary to s. 3 of the Misuse of Drugs Act 1977 and count number two charged possession of a controlled drug for the purposes of selling it or otherwise supplying it to another, contrary to s, 15 of the Misuse of Drugs Act 1977. These guilty verdicts were both by a majority of eleven to one.

2 On the same occasion the jury acquitted the appellant of count number three on the indictment, which had charged possession of a controlled drug with a market value of €13,000 or more for the purposes of selling it or otherwise supplying it to another, contrary to s. 15A of the Misuse of Drugs Act 1977.

3 The appellant was subsequently sentenced on the 31 ^st January, 2014 to six years imprisonment with the final three years suspended on count number one, and to ten years imprisonment with the final three years suspended on count number two, the sentences to run concurrently and to date from that date.

4 The appellant has appealed against his conviction and, in the event that he is unsuccessful in that, against the severity of his sentences.

5 This judgment relates to the conviction issue only.

Uncontroversial evidence

6 On the 21st August, 2012, Customs Officer Donna Kenwright was on duty in a FedEx warehouse attached to Dublin airport, and physically located in Santry. While examining packages there in the course of a spot check, Officer Kenwright selected a package originating in Brazil, with a final delivery address in the Lucan area.

7 The package contained a number of articles including clothing, handbags and a cot bumper set. However, upon closer examination it became apparent that the lining of the handbags, and of a leather jacket amongst the clothing, along with the duvet from the cot bumper set, contained what appeared to be a hard white substance. After coming to the view that this may be a controlled substance, namely cocaine, Officer Kenwright conducted a field test.

8 The package was then seized, and An Garda Síochána were called. Custody of the package was handed over by Officer Kenwright to Detective Garda John Dunning of the Garda National Drugs Unit and it was determined that a 'controlled delivery' would take place.

9 In effecting this 'controlled delivery' Detective Garda John Dunning posed as a FedEx delivery man, and attended at the premises in Lucan on a number of occasions throughout the following week. A number of unsuccessful attempts were made to deliver the package and communication between Detective Garda Dunning and the intended recipient of the package occurred in order to organise a time to deliver same.

10 On the morning of the 28th August, 2012, Detective Garda Dunning was advised by telephone that the person intending to collect the package was not available, and that a friend of his would receive delivery of same. Detective Garda Dunning went to the delivery location, wherein he observed the appellant approach him for collection of the package on behalf of the intended recipient "Sean Kelly". The appellant produced identification when requested, and then proceeded to sign for and accept receipt of the package. The appellant was then observed approaching a nearby vehicle, placing the package in the back seat and then getting into the front seat wherein he had a brief conversation with the driver before exiting the vehicle again.

11 The vehicle containing the package was followed for a time by members of An Garda Siochana, who then stopped it and arrested the driver. The package was subsequently removed from the vehicle and was taken to Ronanstown Garda Station. Following being subjected to forensic analysis, the items in the package were confirmed as having quantities of cocaine secreted within them, which in aggregate weighed 2,042.3 grams with an estimated street value of in excess of€ 140,000.

12 Later on the same day, the home of the appellant at 60 The Village, Porterstown, Dublin 15, was searched pursuant to a search warrant and a customer copy of the FedEx receipt related to controlled delivery effected by Detective Garda Dunning was located there. Nothing else of evidential value was located. The appellant was present in the house during the said search, but throughout it had remained seated in the sitting room on the instructions of gardaí.

13 Following the said search, at 2.58pm on the 28 ^th August, 2012, the appellant was purportedly arrested at his home by Sergeant Richard Byrne, for an offence contrary to s. 15 of the Misuse of Drugs Act 1977 and was conveyed to Ronanstown Garda Station. He was presented to the member in charge, Sergeant Stephen Martin, who decided, under the provisions of s. 2 of the Criminal Justice (Drug Trafficking) Act 1996, that he should be detained for a period of up to six hours commencing from the time of his arrest for the proper investigation of the offence for which he had been arrested. The appellant's said detention was later purportedly extended for a further period of up to eighteen hours. The appellant was interviewed on five occasions in total while he was being detained at Ronanstown Garda Station.

14 The appellant was interviewed once during the initial period of his detention. The appellant's responses to the questions that were asked in the course of that interview were entirely exculpatory.

15 The appellant's detention was purportedly extended by Superintendent Dermot Mahon at 8.48pm on the 28 ^th August, 2012 with the intention that it would take effect upon the expiry of the initial period of six hours commencing...