The People (Director of Public Prosecutions) v Tuma

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 27 March 2015
• Neutral Citation: [2015] IECA 63
• Docket Number: Record No: 138/2011,[C.A. No. 138 of 2011]
• Court: Court of Appeal (Ireland)
• Date: 27 March 2015

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Remigijus Tuma

Appellant

[2015] IECA 63

Birmingham J.

Sheehan J.

Edwards J.

Record No: 138/2011

THE COURT OF APPEAL

Conviction – Drug offences – Reverse burden of proof – Appellant seeking to appeal against conviction – Whether appellant”s trial and conviction were unsafe

Facts: The appellant, Mr Tuma, was convicted by a jury in May 2011, following a trial in the Circuit Criminal Court, of three drugs offences arising out of the same seizure. He was convicted (1) of unlawful possession of controlled drugs, to wit cannabis, worth in excess of €13,000, for the purposes of sale or supply under s. 15A of the Misuse of Drugs Act 1977; (2) of unlawful possession of controlled drugs, to wit cannabis, for the purposes of sale or supply under s. 15 of the 1977 Act; and (3) of unlawful possession of controlled drugs, to wit cannabis contrary to s. 3 of the 1977 Act. The appellant was sentenced to seven years imprisonment for the s. 15A offence to date from the 20th May 2011, and the other two offences were taken into consideration. The appellant appealed to the Court of Appeal against his convictions. The sole ground relied upon was that the trial and convictions of the appellant were unsafe and unsatisfactory having regard to the fact that the trial judge incorrectly charged and misdirected the jury in relation to the burden and standard of proof applicable when a jury considers a defence pursuant to the provisions of s. 29 of the 1977 Act and how such a defence applied to the accused. The appellant”s motion seeking leave to argue a further ground of appeal was opposed by the respondent, the DPP, essentially on two linked grounds that he contended entitled him to invoke and rely upon The People (DPP) v Cronin (No 2) [2006] 4 IR 329.

Held by Edwards J that, following The People (DPP) v Smyth [2010] 3 IR 688, it was clear from the evidence as a whole that the provisions of s. 29(2)(a) of the 1977 Act were engaged in the case, and that the defendant was entitled to seek to rely upon the statutory defence thereby created; that engagement in turn created an imperative that the trial judge should properly charge the jury with respect to the statutory defence under s. 29(2)(a). The Court considered that in circumstances where the jury were misdirected in a number of material respects, and were given contradictory and confusing instructions, with respect to matters as fundamental as the applicable burden and standard of proof in a trial of offences involving possession of drugs, where the issue of a possible statutory defence under s. s. 29(2)(a) had been raised, this rendered the appellant”s conviction unsafe and his trial unsatisfactory. The Court accepted that, in the circumstances of the case, it was reasonable to infer that the matter sought to be ventilated as an additional ground of appeal was not raised at the trial for the reasons postulated by the appellant. The Court was further of the view that the ostensible misdirection of the jury related to a fundamental issue that went to the heart of the trial, and it recognised the jury could have been seriously misled in their deliberations. In those circumstances it seemed to the Court that the point that the appellant was seeking leave to argue raised a significant concern as to the safety of the verdict such that it would be unjust not to grant the leave sought.

Edwards J held that, deciding on the substantive issue, in all the circumstances of the case the appeal would be allowed, and the Court would direct a re-trial on all three counts.

Appeal allowed.

Judgment of the Court delivered on the 27th of March 2015 by Mr. Justice Edwards .

Introduction.

1 The appellant was convicted by a jury on the 25th of May 2011, following a six day trial in the Circuit Criminal Court, of three drugs offences arising out of the same seizure. In descending order of seriousness, he was convicted (i) of an offence under s. 15A of the Misuse of Drugs Act, 1977 (hereinafter ‘the Act of 1977’) (as amended) i.e., unlawful possession of controlled drugs, to wit cannabis, worth in excess of €13,000, for the purposes of sale or supply (count No 3 on the indictment); (ii) of an offence under s. 15 of the Act of 1977, i.e., unlawful possession of controlled drugs, to wit cannabis, for the purposes of sale or supply (count No 1 on the indictment); and (iii) of an offence of possession of controlled drugs contrary to s. 3 of the Act of 1977, i.e., unlawful possession of controlled drugs, to wit cannabis (count No 2 on the indictment)

2 The appellant was sentenced to seven years imprisonment for the s. 15A offence to date from the 20th of May 2011, and the other two offences were taken into consideration.

3 The appellant appeals against his convictions only.

4 While various grounds of appeal were pleaded in the notice of appeal filed in accordance with the Rules of the Superior Courts, the substance of his appeal has ultimately resolved into a challenge based upon a single net point. However, in order to be permitted to argue the net point in question, which was not amongst those initially pleaded, the appellant sought, and was granted leave to do so from the Court. In indicating that it was disposed to allow the appellant to argue the further ground of appeal in respect of which leave was sought the Court stated that it would give its reasons later. The Court will do so at the end of its judgment on the substantive issue.

5 The sole ground of appeal now relied upon is pleaded in the following terms:

‘The trial and convictions of the appellant are unsafe and unsatisfactory having regard to the [fact that the] learned trial judge incorrectly charged and misdirected the jury in relation to the burden and standard of proof applicable when a jury are considering a defence pursuant to the provisions of s. 29 of the Misuse of Drugs Act, 1977 and how such a defence contained therein applied to the accused.’

6 Accordingly, this is yet another case concerned with the conceptually difficult reverse burden of proof in a case involving possession of drugs. It seems that the correct understanding of s. 29(2)(a) of the Act of 1977, and the need to effectively explain and communicate to a jury how it is to be applied in practice, is continuing to cause difficulty for judges and legal practitioners alike.

7 This is ostensibly so notwithstanding a series of cases in this jurisdiction, and elsewhere, dealing with statutory provisions that expressly reverse the onus of proof with respect to a particular issue in a criminal trial, and in particular the judgment of this Court's predecessor, the Court of Criminal Appeal, dealing specifically with the statutory provision at issue in this appeal, in The People (Director of Public Prosecutions) v. Smyth [2010] 3 I.R. 688. Indeed, there is an even later ex-tempore judgment of the Court of Criminal Appeal on the same issue, and to similar effect, in a case that is very close to being on all fours with the present case, in The People (Director of Public Prosecutions) v. Stephen Kelly (Court of Criminal Appeal, Hardiman J, ex tempore, 10th of February, 2014). However, in fairness to all concerned, the Kelly judgment postdates the appellant's trial.

8 While this Court's principal task must be to determine the specific issue raised on the appeal, it will also, though with some trepidation in circumstances where it is mindful that the ground is already well trodden, endeavour to be of further assistance in elucidating how, in future cases where s. 29(2)(a) of the Act of 1977 is relevant, juries might be helped in understanding what is required of them. In doing so, it will approach this matter on the basis that The People (Director of Public Prosecutions) v. Smyth [2010] 3 I.R. 688 was correctly decided and ought to be followed by this Court in this and in future cases, in circumstances where neither party to this appeal has sought to argue the contrary.

The evidence adduced before the jury.

9 In the early hours of the 2nd of May, 2008 three members on An Garda Siochána were returning from a patrol in the Dublin mountains in a marked patrol car, when at 1.50am on the Killakee Road in south county Dublin they observed a male standing on the top of a ditch beside a navy BMW car. On seeing the marked patrol car the male got off the ditch and jumped straight into the car, which immediately drove off in the direction of Rathfarnham. The gardaí activated their blue lights and sirens. The car failed to stop. The patrol car then overtook the BMW car and stopped it about 100 to 150 yards down the road.

10 The driver of the patrol car, Garda Sheehan, approached the BMW car, which was a left hand drive vehicle, and cautioned the driver and then asked him why he had failed to stop. The driver failed to answer. As he was doing this Garda Sheehan noted two male passengers in the vehicle, one in the front passenger seat and one in the left hand rear seat behind the driver. He also observed a large plastic holdall (approx two foot in length by one and a half foot high) to the right of this person on the rear seat.

11 At this point one of the two observers in the patrol car, who had both also alighted from the patrol car to assist Garda Sheehan, namely Garda Brennan asked the driver of the BMW to produce his licence, and he did so. While this was happening Garda Sheehan asked the passengers what was in the holdall bag. They did not respond to him but rather all three men immediately became fidgety and started to speak among themselves in a foreign language, which Garda Sheehan now surmises was Lithuanian. Previously, and up to that point, they had been speaking English. Garda Sheehan repeated his question and again received no reply.

12 Garda Sheehan then informed the occupants of the car that he was...