State (Gleeson) v District Justice Connellan

• Jurisdiction: Ireland
• Judge: Griffin J.,,Hederman J
• Judgment Date: 29 July 1988
• Neutral Citation: 1988 WJSC-SC 1159
• Docket Number: (329/86),[1986 No. 329 S.C.]
• Court: Supreme Court
• Date: 29 July 1988

1988 WJSC-SC 1159

THE SUPREME COURT

Finlay C.J

Griffin J.

Hederman J.

(329/86)

GLEESON v. CONNELLAN

BETWEEN

THE STATE (at the Prosecution of Noel Gleeson)

PROSECUTOR/RESPONDENT

AND

DISTRICT JUSTICE PETER A. CONNELLAN

Citations:

MISUSE OF DRUGS ACT 1977 S27(1)(a)

MISUSE OF DRUGS ACT 1977 S27(1)(b)

MISUSE OF DRUGS ACT 1984 S6

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S4(3)

MISUSE OF DRUGS ACT 1977 S3(3)

MISUSE OF DRUGS ACT 1977 S27

BLOOMFIELD, STATE V NEYLON 1985 ILRM 602

MISUSE OF DRUGS ACT 1977 S28(a)

CUNNINGHAM, STATE V O FLOINN 1960 IR 198

CLANCY, STATE V WINE 1980 IR 228

ROLLINSON, STATE V KELLY 1984 IR 248

MCEVITT, STATE V DELAP 1981 IR 125

MISUSE OF DRUGS ACT 1977 S4

MISUSE OF DRUGS ACT 1977 S28(b)

Synopsis:

DISTRICT COURT

Order

Validity - Jurisdiction - Disclosure - Sufficiency - Unlawful possession of controlled drug - Conviction - Order of conviction referred to enactment creating the offence - Unnecessary that order refer to enactment authorising penalty imposed - ~See~ Criminal Law, drugs - (329/86 - Supreme Court - 29/7/88)1988 IR 559

|The State (Gleeson) v. Connellan|

CRIMINAL LAW

Drugs

Possession - Controlled drug - Cannabis resin - Single offence - Two modes of prosecution - Several penalties - Each penalty dependent upon chosen mode of prosecution and number of times offence committed - Conviction in District Court - Minor offence - Whether order of conviction disclosed jurisdiction - On 6/3/86 the respondent District Justice convicted the applicant of having unlawfully in his possession on a certain occasion a quantity of cannabis resin, a controlled drug, contrary to s. 3 of the Act of 1977 - The respondent imposed a fine of #150 on the applicant and directed that, in default of payment of the said sum within three months, the applicant was to serve three months imprisonment - The order made by the respondent in execution of the said conviction recorded the said facts in the above terms - Section 3 of the Act of 1977 states that it is an offence for a person to have possession of a controlled drug except in circumstances which are not relevant to the said conviction - Section 27, sub- s. 1(a), or the Act, so far as relevant, provides that every person who is guilty of a first offence under s. 3 of the Act shall be liable on summary conviction to a fine not exceeding #300 or, on conviction on indictment, to a fine not exceeding #500 provided that, in either event, the controlled drug is cannabis or cannabis resin and provided that the court is satisfied that the person was in possession of such drug for his personal use - That sub-section provides increased penalties for persons convicted of a second or a third and subsequent offence under s. 3 of the Act - Section 27, sub-s. 1(b), of the Act provides for increased penalties to be imposed on a person in any other case where he is convicted of an offence under section 3 - On 23/6/86 the applicant obtained in the High Court a conditional order of certiorari quashing his conviction, unless cause were shown to the contrary, on the ground that the order of conviction did not show jurisdiction on its fact - The respondent showed cause and the applicant applied for an order absolute notwithstanding the cause shown - On 20/10/86 the High Court made an order absolute on the ground that the order of conviction did not show jurisdiction on its fact because it failed to show (1) whether or not the respondent had found that the applicant's possession was for his own use, (2) whether the penalties were imposed pursuant to sub-s. 1(a) or sub-s. 1(b) of s. 27 and (3) that the offence was a minor offence - The respondent appealed against the order of the High Court - Held, in allowing the appeal, that s. 3 of the Act of 1977 creates a single offence: ~The State (Bloomfield) v. Neylon~ [1985] ILRM 602 disapproved - Held that the penalties imposed by the respondent, as stated in his order, established that the offence of which the applicant had been convicted was a minor offence: ~The State (Rollinson) v. Kelly~ [1984] I.R. 248, [1984] ILRM 625 applied - Held that it was not a condition precedent to the validity of the order of conviction that the order should identify the enactment which authorised the penalties imposed on the applicant, or that the order should record a finding that the applicant had been in possession of the relevant drug for his own use - Held, accordingly, that the order of conviction showed jurisdiction on its fact - Misuse of Drugs Act, 1977, ss. 3, 27, 28 - Misuse of Drugs Act, 1984, s. 6 - (329/86 - Supreme Court - 29/7/88) - [1988] I.R. 559

|The State (Gleeson) v. Connellan|

1 Judgment of Griffin J.,delivered the 29th day of July 1988. [FINLAY CJAGR]

2 The facts are fully set out in the judgment which Hederman J., is about to deliver.

3 In making absolute the Conditional Order Gannon J., held that the order of conviction made by the District Justice is bad on its face and void on three grounds, i.e. it failed to show:

4 (1) Whether the District Justice found that the possession of the drug by the prosecutor was for his personal use, and

5 (2) Whether the sentence was being imposed pursuant to section 27(1)(a) or section 27(1)(b) of the Misuse of Drugs Act 1977as amended by section 6 of the Misuse of Drugs Act 1984, and

6 (3) It did not determine that the offence was a minor offence.

7 The offence is created by s. 3 of the Act of 1977, and under that section the offence is committed by any person who has a controlled drug in his possession (unless it is lawfully in his possession under s. 4(3) or the controlled drug is one specified by the Minister for Health in an order under s. 3(3), neither of which provisions has any relevance to the present case). The question of use of the drug is not an ingredient of the offence under the section. The offence is possession simpliciter, and is complete when it is established that the accused has the controlled drug in his possession. The question of "use" only arises in relation to the penalties to be imposed if and when the accused person is convicted of the offence.

8 Section 27 of the Act of 1977 provides for the penalties to be imposed in respect of an offence under s. 3. That section was amended by s. 6 of the Act of 1984 by the substitution of 9 subsections for the 11 subsections in s. 27. The relevant subsection in this case is subsection (1), which provides that every person found guilty of anoffence under s. 3 shall be liable

9 (a) where the relevant controlled drug is cannabis or cannabis resin (the drug in question in this case) and the court is satisfied that the person was in possession of such drug for his personal use:

10 (i) in the case of a first offence (which we were informed was the position in this case).

11 (I) on summary conviction, to a fine not exceeding £300,or

12 (II) on conviction on indictment, to a fine not exceeding£500.

13 More severe penalties were provided for in subsection 1(a) in the case of a second offence, and in the case of a third or subsequent offence of summary conviction or on conviction on indictment respectively.

14 Subsection 1(b) then provided that "in any other case", the person guilty of the offence under s. 3 should be liable on summary conviction to a fine not exceeding £1,000, or imprionment for a term not exceeding 12 months or to both the fine and imprisonment, or on conviction on indictment to a fine of such amount as the court considers appropriate or to imprisonment for a term not exceeding 7 years or to both the fine and the imprisonment.

15 "Any other case" would include having the drug in the convicted persons possession for use other than for his own use, or being in possession of a controlled drug other than cannabis or cannabisresin.

16 Gannon J., held that s. 3 of the Act of 1977 is a composite offence and that merely referring to s. 3 does not set out if the controlled drug is for personal use, and whether it is for personal use "or other" should be set out in the indictment. The mere fact that the case is tried summarily does not sufficiently indicate that the prosecutor had it for his own use "or other", and the order of the District Justice must be sufficiently clear. He followed the decision of the State (Bloomfield) -v- Mr. Justice Neylon and theD.P.P. 1985 1 L.R.M. 602. In that case O'Hanlon J. held that with regard to cannabis or cannabis resin the combined effect of s. 3 and s. 27 of the Act of 1977 was to create 2 offences - one of unlawful possession of those controlled drugs where the possession is for the personal use of the accused, and the other where it is alleged that the possession is for some purpose other than for the personal use of theaccused.

17 I cannot agree that s. 3 and s. 27 should be construed in that way. In my opinion s. 3 is a section whichcreates only one offence - that of possession of a controlled drug, the penalties for which vary according to the circumstances of the particular case. Where the relevant section is set out in the conviction, the conviction is then good on its face and it is not necessary to refer also to s. 27. It is in my view well settled that any conviction by the District Court of an offence unknown to the common law must show jurisdiction and must show that the matters charged do constitute a criminal offence, by referring to the statute which makes them such or at least to the fact that there is such a statute - see the State (Cunningham) -v- District Justice O'Floinn 1960 I.R. 198.The conviction in this case contained all the essential ingredients of a valid summary conviction for the offence created by s. 3 of the Act of 1977, and it is not necessary to state in the conviction whether the sentence was being imposed in respect of s. 27 (1)(a) or s. 27(1)(b) of the Act of 1977 as amended.

18 The third ground on which the learned trial judge held...