The People (Director of Public Prosecutions) v Mills

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IECA 305
• Docket Number: [C.A. No. 61 of 2015],Appeal No.: 61/2015
• Court: Court of Appeal (Ireland)
• Date: 21 December 2015

[2015] IECA 305

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

Appeal No.: 61/2015

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Robert Mills

Appellant

Conviction – Drug offences – Admission of evidence – Appellant seeking to appeal against sentence – Whether trial judge erred in law in deeming evidence admissible

Facts: The appellant, Mr Mills, on 28th March 2013, sold gardaí a “25-bag” of “weed”. The gardaí were engaged in an investigation in the Drimnagh area to identify individuals engaged in the sale and supply of illicit drugs. As part of that investigation, two undercover gardaí approached people on the street, and at random, seeking to buy a small consignment of drugs. One, a sixteen year old, made a telephone call, whereupon another person, the appellant, drove to the location where the gardaí were positioned and sold them the drugs. One of the investigating gardaí asked the appellant for his phone number, and then telephoned him the following day and ordered another “25 bag”. That second transaction duly took place. Initially the appellant pleaded not guilty to six counts, all relating to the sale or supply of drugs contrary to s. 15 of the Misuse of Drugs Act 1977. Following a voir dire heard over two days, and in respect of which the trial judge ruled against the appellant, Mr Mills was on 18th December 2015 re-arraigned on the two counts to which he pleaded guilty; they were: possession of a controlled drug for the purpose of selling or supplying it to another contrary to s. 15 and to s. 27 of the 1977 Act and possession of a controlled drug for the purpose of selling or otherwise supplying it to another contrary to s. 15 and to s. 27 of the 1977 Act. The appellant received a sentence of two years on each count, both of which were suspended for a period of two years on certain conditions. The appellant appealed to the Court of Appeal against conviction on the grounds that: 1) the trial judge erred in law in deeming admissible evidence against the appellant which was gathered by way of a “test purchasing operation” in which gardaí were involved in initiating or instigating the commission of a criminal offence, and in which they did so without any sufficient independent authorisation; 2) the admission of such evidence was in violation of the appellant’s right in due course of law as required by Article 38 of the Constitution of Ireland; 3) the admission was in violation of the appellant’s right to a fair trial as required by Article 6 of the ECHR; 4) the trial judge failed to fulfil her obligations pursuant to s. 2 of the European Convention on Human Rights Act 2002 which required her to interpret the common law defence of entrapment in a manner compatible with the ECHR; 5) An Garda Síochána acted in breach of their duties under s. 3 of the European Convention on Human Rights Act 2003, such that evidence gathered by gardaí should have been ruled as inadmissible; 6) the trial judge erred in law and in material fact in holding that there was independent authorisation of the “test purchasing operation”, and erred in law in failing to provide an adequately reasoned ruling in respect of the case made on behalf of the appellant, and the evidence gathered by gardaí should be ruled inadmissible.

Held by Mahon J that, having considered the practice of test purchasing in relation to alcohol and tobacco products for the purposes of enforcing the law relating to the underage purchasing of such products, including Guidelines On Test Purchasing Of Intoxicating Liquor issued by the Minister for Justice and Law Reform pursuant to s. 37C(4) of the Intoxicating Liquor Act 1998, and a Health Board approved protocol for the test purchase of tobacco products prepared by the Office of Tobacco Control, citing Syon v Hewitt and McTiernan, and the Office of Tobacco Control [2006] IEHC 376, the Court was satisfied that in the particular circumstances of this case there was no infringement of Article 6 of the ECHR or Article 38 of the Constitution, and that the trial judge was correct in her decision to admit the evidence of the undercover gardaí.

Mahon J held that the appeal should be dismissed.

Appeal dismissed.

Judgment of the Court delivered on the 21st day of December 2015 by Mr. Justice Mahon

Background

1 This is an appeal against conviction, notwithstanding the fact that the appellant pleaded guilty to the two offences in question. That plea of guilty was entered in the aftermath of the decision by the learned trial judge to admit certain evidence following a two day voir dire. No issue is taken by the respondent in relation to this aspect of the appeal, having regard to the decision in the case of Geasley v. DPP [2009] IECCA 22.

2 On 28th March 2013, the gardaí were engaged in an investigation in the Drimnagh area to identify individuals engaged in the sale and supply of illicit drugs. As part of that investigation, two undercover gardaí approached people on the street, and at random, seeking to buy a small consignment of drugs. One, a sixteen year old, made a telephone call, whereupon another person, the appellant, drove to the location where the gardaí were positioned and sold them a ‘ 25-bag’ of ‘ weed’. One of the investigating gardaí asked the appellant for his phone number, and then telephoned him the following day and ordered another ‘ 25 bag’. That second transaction duly took place. At the time the appellant had no previous convictions, and was unknown to the Gardaí.

3 Initially the appellant pleaded not guilty to six counts, all relating to the sale or supply of drugs contrary to s. 15 of the Misuse of Drugs Act 1977 (as amended). Following a voir dire heard over two days, and in respect of which the learned trial judge ruled against the appellant, the appellant, was on 18th December 2015 re-arraigned on the two counts to which he pleaded guilty, they were:-

• Possession of a controlled drug for the purpose of selling or supplying it to another contrary to s. 15 and to s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

• Possession of a controlled drug for the purpose of selling or otherwise supplying it to another contrary to s. 15 and to s. 27 (as amended by s. 26 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

4 The appellant received a sentence of two years on each count, both of which were suspended for a period of two years on certain conditions.

The Voir Dire

5 In the course of a voir dire on 14th and 17th November 2014, the learned trial judge heard sworn evidence from four members of An Garda Síochána.

6 The most senior of these four garda witnesses was Detective Sergeant Brian Roberts. He gave evidence in relation to the organisation of the garda operation which gave rise to the charges against the appellant, and the briefing of three members of An Garda Síochána in advance of that operation. Detective Sergeant Roberts described himself as ‘ a member in charge of the Test Purchasing Unit attached to the Garda National Drugs Unit’ and he stated that at the time, that unit was engaged in a ‘ specific and focused test purchasing operation’ in the Crumlin and Drimnagh areas of Dublin.

7 Detective Sergeant Roberts stated that he instructed the three undercover members of An Garda Síochána as follows:

‘ . . There was an operation code named “Operation Trident” and ultimately the focus was to assess the availability of controlled drugs in the specific area and to gather evidence against those who came to light who were involved in the sale of such substances. So on this date, I briefed the members, as I do on a daily basis in these types of operations, and I briefed them that their objective on this day was simply to go to the area at street level and assess if controlled drugs were being made available for sale.’

He also said:

‘ One of the key things in this briefing at the start of the operation is to be very clear with the unit, with the unit members, that any evidence that comes to light or transaction that takes place should only take place where there was no enticement to a suspect to commit an offence that wouldn't be otherwise committed, and this was made very clear in this briefing and understood by the members.’

And:

‘ … It's ultimately that they don't entice an offence that wouldn't have otherwise happened. So if the offence was laid on and would have happened to a customer ringing a drug dealer in normal circumstances, that's within the parameters of the definition. An enticement would be something whereas, if we, for example, were to buy or Gda. Reddy was to buy three bags of heroin and meet somebody and offer them €200 that has a market value of €50 that would be a clear enticement. So initiating the offence is understood by Gda. Reddy and other members of the unit as perfectly okay once there is no enticement to commit an offence that wouldn't have happened in other circumstances.’

8 Detective Sergeant Roberts also told the court that ‘ all people who are qualified to test purchase members, meaning that they have successfully completed a pass or fail programme in the area of test purchase operations’.

9 Detective Sergeant Roberts described himself as the principal instructor for test purchase training.

10 When asked to identify the ‘ power’ which invested the authority in him to authorise the operation, he stated:-

‘ It is the protocol for test purchase operations in Ireland and the U.K. and indeed globally but when we embark on this type of operation, which we do and have done for sixteen years, we are very careful that there is no breach of the law in terms of the activities of the gardaí and then this final point and very important point with regard to Agent Provocateur that we have to be very clear that we do not engage somebody in activity that they...