DPP v Wharrie

JurisdictionIreland
JudgeMacMenamin J.
Judgment Date04 October 2016
Neutral Citation[2016] IECCA 3
Docket Number[Appeal No. 2008/218 CCA]
CourtCourt of Criminal Appeal
Date04 October 2016

[2016] IECCA 3

THE COURT OF CRIMINAL APPEAL

MacMenamin J.

MacMenamin J.

Moriarty J.

McGovern J.

[Appeal No. 2008/218 CCA]

BETWEEN:
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
AND
PERRY WHARRIE
APPLICANT

Drug offences – Point of law – Jurisdiction – Applicant seeking to argue a point of law – Whether the point of law was one of exceptional public importance

Facts: The applicant, Mr Wharrie, after a trial lasting 41 days in the Cork Circuit Court, was convicted of offences under the Misuse of Drugs Act 1977, namely: (i) simple possession of a controlled drug under s. 3 of the 1977 Act; (ii) possession of such a drug for the purposes of sale or supply, pursuant to s. 15 of the 1977 Act; (iii) possession for sale or supply of such a drug, the value of which exceeded €13,000, pursuant to s. 15 of the 1977 Act. The applicant was sentenced to 30 years imprisonment. He brought an appeal against the conviction to the Court of Criminal, and the Court of Criminal Appeal (MacMenamin J, de Valera J, McGovern J) which delivered judgment on that appeal, upholding the conviction on the 19th April, 2013. Subsequently, a different panel of the Court (MacMenamin J, Moriarty J, Hunt J) addressed the question of sentence, and the applicant’s original sentence of 30 years was reduced to an effective term of 22 years and 6 months, as a headline sentence, with a deduction of 5 years to reflect all mitigating factors. Arising from the judgment of 19th April, 2013, the applicant applied to the Court of Criminal Appeal seeking a certificate pursuant to s. 29 of the Criminal Justice Act 1924 for leave to appeal to the Supreme Court. He wished to argue the following point of law: are the offences under s. 15 and s. 15A, respectively, of the 1977 Act (both being offences of possession of controlled drugs for sale or supply) subject to the restriction that the said offence(s) are not committed where the evidence in a case establishes that the controlled drugs in question were destined for sale or supply to persons in another jurisdiction, rather than to persons within the State itself?

Held by MacMenamin J that, in this appeal, the applicant faced insurmountable obstacles; these included the fact that the point was not raised at the trial at all, and the Court ruled that it would not entertain the point. Additionally, MacMenamin J held that the point raised does not satisfy any of the criteria outlined by the Court in The People (DPP) v Patchell [2014] IECCA 6, and The People (DPP) v Cooke [2015] IECCA 5. MacMenamin J held that the point in the application raised was, in the senses identified, futile, moot, not pending, and of no direct relevance to the appeal. MacMenamin J noted that in order for a point of law to be certified, it is necessary that it involves a point of law of exceptional public importance, and that it is desirable in the public interest that the person should take such an appeal to the Supreme Court. MacMenamin J noted that in Patchell, the Court laid emphasis on the fact that the requirements are cumulative. In this appeal, MacMenamin J held that it has not been shown that the point of law is one of exceptional public importance, in the sense that the point has frequently arisen in trials, or is pending, in a range of other cases.

MacMenamin J held that, in the circumstances, the Court would refuse the application.

Application refused.

Judgment of the Court of Criminal Appeal delivered by MacMenamin J. on the 4th day of October, 2016
1

Eight years ago, after a trial lasting 41 days in the Cork Circuit Court, the applicant, Perry Wharrie, was convicted of offences under the Misuse of Drugs Act, 1977. These offences were:

(i) Simple possession of a controlled drug under s.3 of the Act of 1977, as amended;

(ii) Possession of such a drug for the purposes of sale or supply, pursuant to s.15 of the Act of 1977, as amended;

(iii) Possession for sale or supply of such a drug, the value of which exceeded €13,000, pursuant to s.15 of the Misuse of Drugs Act, 1977, as amended.

2

Having been convicted, the applicant was sentenced to a lengthy term of 30 years imprisonment. He brought an appeal against the conviction to the Court of Criminal, and this Court (MacMenamin J., de Valera J., McGovern J.), which delivered judgment on that appeal, upholding the conviction, on the 19th April, 2013. Subsequently, a different panel of the Court (MacMenamin J., Moriarty J., Hunt J.) addressed the question of sentence, and the applicant's original sentence of 30 years was reduced to an effective term of 22 years and 6 months, as a headline sentence, with a deduction of 5 years to reflect all mitigating factors.

3

Arising from the judgment of 19th April, 2013, the applicant now seeks a certificate pursuant to s.29 of the Criminal Justice Act, 1924 (as amended), for leave to appeal to the Supreme Court. He wishes to argue the following point of law:

‘Are the offences under s.15 and s.15A, respectively, of the Misuse of Drugs Act, 1977 (both being offences of possession of controlled drugs for sale or supply), subject to the restriction that the said offence(s) are not committed where the evidence in a case establishes that the controlled drugs in question were destined for sale or supply to persons in another jurisdiction, rather than to persons within the State itself?’

4

It is necessary, first, to say something about the evidence adduced at the trial. The prosecution case was that the appellant was part of a large scale international drugs importation operation. The cocaine consignment was to be transferred from a yacht, the Lucky Day, by inflatable rib to the West Cork coast. A significant number of those involved in all aspects of the scheme were citizens of the United Kingdom. Some of the “reception party” entered this State, using false passports. They...

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1 cases
  • DPP v Wharrie
    • Ireland
    • Supreme Court
    • 3 July 2017
    ...and Moriarty JJ concurring, leave of the Court of Criminal Appeal to appeal sought by the Director of Public Prosecutions was refused; [2016] IECCA 3. The Director of Public Prosecutions then certified this question for appeal to this Court on the 31st of May 2016: Is it a correct principle......

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