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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Alan Finnamore [2008] IECCA 99 (01 July 2008)
URL: http://www.bailii.org/ie/cases/IECCA/2008/C99.html
Cite as: [2009] 1 IR 153, [2008] IECCA 99

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Judgment Title: D.P.P.-v- Alan Finnamore

Neutral Citation: [2008] IECCA 99


Court of Criminal Appeal Record Number: 203/06

Date of Delivery: 01 July 2008

Court: Court of Criminal Appeal


Composition of Court: Macken J., Feeney J., McGovern J.

Judgment by: Macken J.

Status of Judgment: Approved

Judgments by
Result
Macken J.
Refuse leave to appeal against conviction


Outcome: Refuse leave to appeal against conv.



COURT OF CRIMINAL APPEAL

Rec. No. CCA 203/06

Macken, J.
Feeney, J.
McGovern, J.

Between:

The Director of Public Prosecutions
Respondent
-and-

Alan Finnamore
Applicant
Judgment of the Court delivered the 1st day of July 2008 by Macken, J.


This is an application for leave to appeal against conviction brought on behalf of the applicant. He was found guilty on a retrial of certain drugs charges on the 10th October, 2006, and sentenced to eight years imprisonment.

Although in the Grounds of Appeal filed in November, 2006, there are twelve grounds listed, it became clear in the course of the opening of the appeal that not all grounds were being pursued. The extant grounds can usefully be divided into the following:
      (a) The Circuit Court judge erred in law in failing to direct the jury to enter a plea in bar of autrefois convict on the two counts on which the applicant was re-arraigned, he having been previously convicted for possession of the same drugs arising out of the same events.

      (b) Having regard to the concession made by the prosecution that the applicant had not himself packed the drugs, or placed them in the holdall in which they were found, the prosecution failed to prove beyond reasonable doubt that the applicant had possession of the drug amphetamine, in the sense of having sufficient knowledge and control over it given the required standard of proof in a criminal trial.
(c) The learned trial judge erred in law in failing to withdraw
      the offence alleged under s.15A of the Misuse of Drugs Act 1977, as inserted by section 4 of the Criminal Justice Act 1999, in the absence of a proper forensic inquiry as to the purity content of the drug (amphetamine) and where evidence of the value of the materials in question was limited to the market value of saleable amphetamine on the street.
The Autrefois Convict Ground:

Turning to the first of the grounds, put forward as being the most important in this appeal, Mr. Aylmer, Senior Counsel, submitted on behalf of the applicant, that there were three legal issues to be considered. The first is an argument arising from the case of R v Hill [1993] 96 Cr. App. R. 456: secondly, can there be, in law, sequential trials in a case such as this: and finally, what are the consequences, if any, of the matter not having been raised in the course of the first appeal to the Court of Criminal Appeal.

The Background Facts
To understand the argument made on behalf of the applicant on this issue, it is necessary to set out the background facts to the charges, the first trial and the sentences imposed, and the decision of this Court made on the application in November, 2005, for leave to appeal from the convictions in the first trial. The background facts have been helpfully set out in detail in the written submissions filed on behalf of the applicant, and a brief summary is sufficient here.

The applicant, with his nephew, was seen in a wooded area in County Laois on the 19th February, 2003. The evidence tendered was to the effect that he was observed taking a bag from the car he was driving and placing it in a ditch in the wood. The car moved a short distance away and then parked facing the area where the bag had been placed. Shortly after this, gardaí approached the applicant and his nephew and arrested both of them, went to the ditch and found the bag, which in turn contained drugs, in this case, amphetamine. The applicant had been seen the previous day at the same place, which he admitted, but he gave an explanation as to why he was there, which was that he had intended purchasing drugs (cannabis with a value of three or four thousand euro) to assist his nephew to set up someone else for possession of drugs, and that a third party had “organised it all”.

The applicant was charged with several offences, and pleaded not guilty. These are especially relevant to this first ground. He was charged with; (a) possession of controlled drugs, contrary to s.3 of the Misuse of Drugs Act 1977, (b) possession of controlled drugs for the purposes of sale or supply contrary to s.15 of the Act of 1977, and (c) possession of controlled drugs with an aggregate value of €13,000 or more for the purposes of sale or supply, contrary to s.15A of the Act of 1977 as inserted by s.4 of the Criminal Justice Act 1999.

He was convicted by a jury on the 12th October, 2004, on all three counts and sentenced on the 16th November, 2004, as follows:

(a) on the s.15 charge, five years,

(b) on the s.15A charge, ten years; and

(c) on the s.3 simple possession charge, two years,
      the first and third sentences to run concurrently with the 10 year sentence, and all to run from that date.
The applicant appealed against all three convictions and by a judgment delivered on the 21st November, 2005, this Court (McCracken, J.) quashed the convictions on the charges pursuant to s.15 and s.15A but upheld the conviction under s.3 of the Act of 1977 and the applicant served all, or substantially all, of the sentence under the latter conviction. In the context of this appeal, the Court notes that, according to the ex tempore judgment, the two convictions were set aside on a specific ground, namely that, having regard to comments made by the trial judge late in the evening on the length of time available to the jury to deliberate on these charges prior to being obliged to retire for the night, the court was not satisfied that the jury would not have felt under pressure to return verdicts on that same evening, and the above two convictions could not therefore be considered safe. Counsel for the respondent draws this Court’s attention to the fact that the jury had already returned its verdict of guilty on the s.3 charge before the time issue arose. A retrial was ordered (in the language ordinarily used in that regard) in respect of the s.15 and s.15A charges.

Upon re-arraignment at the Circuit Criminal Court on the 2nd February, 2006, a plea in bar was entered on behalf of the applicant in respect of the extant charges. Following a two day hearing, the Circuit Court judge before whom that application was made refused the relief sought on the basis that the materials and submissions made did not in law support a finding of autrefois convict. No appeal or other application was made at that time, in respect of that finding, and the retrial proceeded in the usual way. The jury found the applicant guilty of the s.15A charge on the 10th October, 2006. No verdict was entered on the s.15 charge. He was sentenced to eight years imprisonment, the offence carrying, in the absence of special circumstances, a mandatory ten year sentence pursuant to legislation in that regard. The sentencing judge took into account the two year sentence imposed on the earlier s.3 possession of drugs conviction. The sentence in respect of the s.15A conviction runs from the 6th November, 2006, the date of the adjourned sentencing hearing on the retrial.

The Argument:
Overall on the first ground, Mr. Aylmer submits that this case is an example of the application of the fundamental principle of law that a person may not be tried or punished twice for the same or substantially the same offence, or for an offence arising out of the same set of facts, save in exceptional circumstances. It is further argued that there cannot be sequential trials for offences on an ascending scale of gravity arising out of the same events.

The R v Hill Ground:
In R v Hill the accused had been charged and found guilty on pairs of alternative counts, ranging from mere possession of drugs to possession with intent to supply (the same drugs). In the Court of Appeal it was argued, and conceded by the Crown, that what should have happened was that verdicts should have been delivered on what were the more serious counts first and if the jury found the accused guilty on the more, or most, serious charge, the jury should then not have been required to deliver any verdict on the lesser count(s). Since this had not occurred in that case, the relevant lesser counts were quashed by the Court of Appeal.

Applying that same approach to the circumstances of the present case, counsel for the applicant contends that in the first trial, wrongly, the prosecutor and the trial judge both failed to inform the jury that since the three counts all arose from a single incident of possession of drugs, but were “varying in degree”, while entitled to convict on the lesser charges, if convicted on the most serious charge, they should have been directed to return no verdict on either of the two lesser charges. This approach, said by counsel to be the correct one, had been adopted at the retrial by the respondent, who dealt with the two extant s.15 and s.15A charges on the basis that they were alternative counts. The net effect of this was that the jury at the retrial was directed to consider the s.15A charge first, and if it found the applicant guilty on that charge, there would be no need to consider further the charge under s.15. The jury did precisely that and no verdict was returned on the s.15 charge.

Secondly, it is submitted that the particular mischiefs which the rule in R v Hill is intended to cure is the undesirability of permitting two conflicting convictions arising from the same events to stand, and that a person should not be punished twice for the same offence. Counsel for the applicant puts it this way in the written submissions filed:-
      “Thus the accused has been tried, convicted and sentenced and has almost fully served his sentence in relation to one of the three alternative offences with which he could have been lawfully convicted arising from the single transaction of possession which occurred on the date of the alleged offences, …” (emphasis added)
Counsel argues on this point that the plea in bar ought to have been accepted, because had the correct approach been adopted by the prosecution and/or the judge in the first trial, the consequence flowing from the approach actually adopted would never have occurred, that is to say, having been wrongly convicted on the lesser count of possession, the applicant was then wrongly sentenced and had wrongly served the two year sentence imposed on him.

Mr. Aylmer submits finally that, in the above circumstances, the only just way in which the mischief can be cured at this time, particularly having regard to the fact that the applicant has already served his sentence from the original trial, is for this Court to quash the s.15A conviction imposed on the retrial.

The respondent, in its written submission, has set out at considerable length the arguments on the rule of autrefois convict. It is sufficient to refer to the main grounds put forward for opposing the applicant’s claim to be entitled to succeed on the plea in bar on this ground. It is argued that such a plea arises on the record, the record consists of the certificate of conviction in the first trial and the Order of this Court quashing the conviction and ordering (in reality authorising) the retrial. Viewed thus, it is said, there could be no bar a retrial on the s.15A charge.

Secondly, the respondent submits that in many cases there may be mutually inconsistent counts may properly be put to a jury, and cites, for example counts of larceny and receiving as in the case of R v Fernandez [1997] 1 Cr. App. R. 123, or where a common law and a statutory provision each forms the basis for alternative charges. In all cases it may be possible to convict for a lesser offence where all of the essential ingredients of the offence are included in the charge, such as in manslaughter and murder. It is therefore necessary to look at each particular case in order to determine whether a plea in bar can be raised at all under this ground.

Thirdly, the respondent argues that it would have been open to the jury to find the applicant guilty on all three counts, and it would have then been open to the trial judge as between the s.15A and s.15 verdicts to have accepted a verdict on the s.15A charge only, on the basis that it was the more serious of the two alternative charges relating to “possession with intent to supply” provisions and carried the ingredients of the lesser s.15 “possession with intent” charge. The respondent also accepts that it would have been open to the original trial judge to discharge the jury from returning any verdict on the s.3 “possession of drugs” charge. The respondent contends however, that the conviction of the applicant on the s. 3 charge could not prevent his retrial on the s.15A charge, because if the applicant were correct, it would also mean that once a verdict was returned on the former charge, the jury would be prohibited in law from considering any of the further counts. This, the respondent argues, would be neither logical nor lawful.

It is also pointed out by the respondent that in the present case, neither could there be any question of double punishment, because credit would and should be given for any time already served on the s.3 conviction, and this approach to sentencing was also properly adopted in the present case by the sentencing judge.

Conclusion
This application, so far as this argument is concerned, is presented to the Court, not on the classic basis of autrefois convict, in the sense of the applicant claiming he had already been convicted of a s.15A offence arising from the same events, but rather on the basis that, in circumstances such as those which arose in the instant case, the rule or practice adopted in R v Hill should have been followed, but was not, and in consequence the conviction under appeal must be set aside.

If the rule in R v Hill, if it be a rule, or even a practice, is to apply, and it seems to the Court that there is a certain logic to it in the context of charges such as those being considered in the present application, the Court is nevertheless not persuaded that such a rule or practice “was always the law”, as contended for by Mr. Aylmer, nor indeed that it must apply in all cases. Counsel did not invoke any Irish case in which the practice referred to in that case has been adopted. The Court notes the decision of the Supreme Court in D.P.P. v Higgins, (Unreported Supreme Court, 22nd November 1985) in which Finlay C.J., which, while speaking obiter, but nevertheless as part of a unanimous judgment of a court of five, observed the importance of imposing an appropriate sentence “on all counts” in respect of which an accused person is convicted by a jury. That too was a case where there were a number of charges and convictions in respect thereof. The trial judge had imposed a sentence in respect of one count only out of the several convictions, and took the others into consideration. While not relying on that judgment as a determinative authority, this Court considers it inappropriate nevertheless, having regard to it, to make no conclusive findings on whether the rule in R v Hill must or should be adopted in all cases.

The present application however may be considered against the particular history of the trials in question. The same events (or event) in the present case founded all three charges. If the approach adopted by the respondent in the retrial had been also been adopted on the occasion of the original trial, namely, the jury being charged first to consider the more, or most, serious charge and if convicting the accused on that charge, then not being required to convict on the lesser charge or charges, as the respondent accepts the sentencing judge could have done, the present difficulty would not have arisen. Such an approach permits, and properly so in an appropriate case, all counts of this nature which the prosecution places on the same indictment, to remain “live”, so to speak, until the jury retires to deliberate, enabling it to convict on the appropriate count, with instructions on the issue, if necessary as part of the trial judge’s charge. It also permits the judge to accept the most appropriate of the verdicts if more than one is returned. The Court is alert also to the provisions of the Criminal Procedure Act 1993, invoked by the respondent, and under which, if a conviction is set aside, this Court may substitute, as appropriate, a conviction on a lesser or even different charge, provided the evidence adduced would support the same, which might, in an appropriate case, affect the application of the comments of Finlay C.J. in the case of D.P.P. v Higgins.
The court is here concerned with a situation where, assuming the approach in R v Hill to be the appropriate one, but which was not adopted or applied, what the consequences should be. Even applying the approach adopted in that case, however, it does not automatically follow even from R v Hill itself, that a plea in bar must succeed. The cases cited in support of the applicant’s contention all provide for exceptional circumstances to be taken into account when determining whether a later trial should proceed or should properly be barred. Further the appropriate conviction, if one is to be quashed, must be determined. It is instructive to see how the matter was dealt with in R v Hill itself. There, the main issue on the appeal to the Court of Appeal concerned whether the prosecution had, at trial, sufficiently established the identity of the drugs in question. In the appeal counsel for the appellant submitted that there was a “material irregularity” at the trial because verdicts of guilty were taken from the jury on counts which were in reality pairs of alternative counts laid on an ascending scale in respect of identical amounts of drugs. This irregularity does not even feature in the head note. The Court of Appeal (Waterhouse J.) in the course of the judgment, dealt with it as follows:-
      “What should have happened is that verdicts should have been taken on counts 5, 6, 7 and 8 first and that the jury should then have been discharged from delivering verdicts on counts 1, 2 and 4. No doubt the inappropriate order of the counts in the indictment contributed to the confusion, and difficulties arose when unanimous verdicts were taken initially on counts 2, 3 and 4. It is necessary, however, to correct the error now and it follows that, if the verdicts on counts 5, 6 and 8 are to stand, those on counts 1, 2 and 4 must be quashed.” (emphasis added)
The Court of Appeal did not, however, rule that there was a fundamental error in law such that the conviction on all counts must be set aside, nor did it declare that, had the position not been capable of being remedied, a plea in bar would automatically lie against any retrial. It found that it was appropriate on that appeal simply to correct the error which had occurred, by quashing the lesser convictions. A similar approach was taken to a similar type of irregularity in the case of R v Thompson, (Unreported, Court of Appeal, 12th August, 1997) in which Hutchison L.J. stated:-
      “It seems to us that no possible prejudice can have occurred to the appellant, nor is there anything to make the verdict on count 4 unsafe, in what occurred in relation to the order in which the verdicts were taken. The appropriate course, as is conceded by counsel for the respondent, is to quash the conviction on count 3 in the light of the conviction for the more serious alternative on count 4. That is what we do.”
In both cases the Crown accepted that the less serious charges should be quashed. In neither case is there any debate or expose as to the rationale behind the practice which appears to exist in the United Kingdom in the case of lesser and more serious charges arising out of the same events. A similar approach is found yet again in another case invoked on behalf of the applicant, R v Fernandez [1997], supra., where the Court of Appeal stated:-
      “Where a jury has not been properly directed upon the character of alternative verdicts and the need to consider and/or return their verdicts in a particular order, irregular verdicts are liable to be returned.”
Having traced the position through several cases, including R v Hill, the Court classified what had occurred in the latter case as an irregularity, but one which did not invalidate the verdicts on the more serious charges.

It seems clear from the case law that the primary purpose of the rule against double jeopardy, despite its complications, is to protect persons from being punished more than once for the same offence. Mr Aylmer’s contention at the hearing as to the mischief to be remedied or cured by the rule of autrefois convict appears, however, to combine two different mischiefs, namely, that of the very existence of alternative convictions, and that created by the possibility of double punishment.

As to the first of these mischiefs, the Court considers that the case law, including R v Hill and the academic writings cited on behalf of the applicant, all draw a distinction between the impermissibility in law of maintaining two truly conflicting or repugnant verdicts, and the undesirability, at least in the United Kingdom, of a jury returning verdicts in respect of alternative counts brought on an ascending scale on the same indictment. A typical example of the first of these arises in those cases cited to this Court on behalf of the applicant, which concern convictions for both larceny and receiving stolen goods, which by reason of the very nature of the offences, as explained in the case law cited, cannot co-exist (see R v Fernandez and O’Leary v Cunningham [1980] I.R. 367). The facts in the present application do not fall into that category. The second group is exemplified by the types of convictions dealt with in the case of R v Hill, that is to say, alternative counts on an ascending scale but arising from the same events. This distinction is moreover drawn by the author of Criminal Procedure, also cited on behalf of the applicant, where he states, at paragraph 19-56:
      “It may happen that some counts relate to the same type of offence and differ only in degree as, for example, in assault and assault causing harm. In this event if the jury convict on the more serious offence, they should be directed to return no verdict on the lesser. It may also happen that the accused is charged with alternative offences, as in larceny and handling stolen goods. In this event, if the jury convict on one count they may be discharged from returning a verdict on the alternative count.” (emphasis added)
This extract puts the position very plainly. In the first case, whereas an accused could be convicted of any one of the charges, it may be, according to the author, inappropriate to convict on lesser counts if he is convicted on the more or most serious count. In the second case, it is quite different. The accused, although properly charged on more than one count, or even with conflicting counts, cannot, and could not, be convicted of both. This Court agrees that it should not be possible in law to maintain both convictions in the latter case. However, in the former, where offences differ in degree, even the approach in R v Hill invoked on behalf of the applicant, while providing that convictions for the more serious and the lesser counts should not ordinarily stand, appears to deem the verdicts by a jury on more than one charge on an ascending scale, as a procedural, although undesirable, error, which should be corrected. Further, it is implicit in the cases cited in support of the applicant’s argument that, even when such an irregularity occurs as it did here, only the verdict on the less serious charge will be quashed.

Before coming to a final conclusion on the consequences which flow from the above for the first ground, it is necessary first to deal with the second of the legal principles contended for on behalf of the applicant under this ground, as they overlap to some extent in terms of consequences. This concerns the question whether there can be sequential trials for offences arising from the same events, it being argued that, having regard to certain jurisprudence, both English and Irish, there cannot be sequential trials.

The Bar to Sequential Trials : The Argument
Mr. Aylmer submits that this further legal ground exists for succeeding on the plea in bar. Where, as here, a conviction has been returned on the s.3 possession of drugs charge, he contends the case law establishes that such a conviction operates in law to bar any sequential prosecution or trial on charges arising from the same events. The general principle which he invokes is best expressed, he suggests, in particular in two English cases, R v Connelly [1964] A.C. 1254 and R v Beedie [1998] QB 356, the former of which he says was approved in this jurisdiction O’Leary v Cunningham [1980] I.R. 367.

Mr. Aylmer argues that arising from these cases, and others, it is impermissible in law to have sequential trials arising out of the same set of facts where there has been a conviction in respect of any one of the counts, or where an accused might, on the earlier indictment, have been convicted of a count arising in the subsequent trial. The net effect of this is that where there has been a trial and a person has been found guilty, a plea in bar must succeed where the prosecution seeks to try, or actually tries or retries a convicted person, whether or not the subsequent trial is in respect of a more serious or a less serious charge, provided that all counts arise from the same event(s).

The respondent counters this argument on the following basis.

On a proper reading of the provision of s.5 of the Courts of Justice Act, 1928, and of s.34 and s.59(2) of the same Act, and having regard to the provisions of the earlier s.34 of the Courts of Justice Act 1924, and as finally provided for in the Criminal Procedure Act 1993, the applicant in the present case cannot rely on any rule of law to avoid a retrial of the s.15 or s.15A charges. This is particularly so, it is submitted, since the present application arises in the course of a single ongoing process, not yet fully completed, and which will conclude only at the end of the appeal process.

As to the particular facts in this case, Mr. Owens, Senior Counsel for the respondent, secondly submits that the effect of the decision of the Court of Criminal Appeal following the first trial was that the state of the proceedings was the same as might have arisen if the jury had reached only a partial verdict.

Finally, the judgment of this Court on the original application for leave to appeal had made it clear that the jury was not given an opportunity to give due consideration to the charges which involved an intent to supply, and no more. Therefore there was no reason why, in such a case, there could not be a retrial on the same indictment of the more serious s.15A charge, which was in respect of a different offence, the ingredients of which were not the same as those under s.3.

Conclusion:
The above cases invoked by the applicant all concerned particular and peculiar circumstances, and indeed in some at least of the cases the actual findings of the respective courts are rather more limited than contended for. It is necessary, therefore to consider these cases, and others cited by the parties, with a view to ascertaining the appropriate principles to be gleaned from them and applied to the present application. In the first of the cases, R v Connelly, which concerned a plea of autrefois acquit, it is acknowledged in the written submissions filed on behalf of the applicant, that the House of Lords there identified a narrow principle of autrefois acquit. In fact the head note to the case makes it clear that the decision of the court concerned only a plea of autrefois acquit. It is accepted that the same principles may, but do not always, apply in an appropriate case of autrefois convict. The only finding of the House of Lords in that case is clearly set out in the following extract from the head note:-
      “The plea of autrefois acquit must be given a limited scope and it was not a bar to C. being tried afresh on the robbery charge. This case did not come within the proposition that the plea of autrefois can arise whenever in order to prove the offence alleged in the second indictment the prosecution must prove that the accused has committed an offence of which he has previously been either convicted or acquitted.”
The several different principles invoked by individual Law Lords do not appear to have been adopted as part of the actual conclusions of the House of Lords. They are, however, variously referred to, on behalf of the applicant, as being “rules identified in the Connelly judgment”. This Court does not accept that they have a standing above and beyond the identification of several different, and at times conflicting, principles invoked by several different Law Lords, save to the extent to which some of the principles mentioned by Lord Morris of Borth-y-Gest were referred to, and with apparent approval, in the judgment of Kenny J. in O’Leary v Cunningham, to which this Court will return, having considered another case invoked on behalf of the applicant. Before leaving R v Connelly, however, it is helpful to see what was said in that case, and to what it was applicable. The case concerned two separate indictments, the first one for murder, on which the charge of robbery, which was on the second indictment, could not have been included under the practice then in force. The accused was tried first on the murder charge, found guilty but appealed, and was acquitted on appeal. The second indictment charged him with robbery with aggravation. The trial judge charged the jury on the basis that the accused could not have been found guilty of the latter charge on the first indictment. In that regard, Lord Morris of Borth-y-Gest stated:-
      “My Lord for reasons which I will elaborate, I can find no error in the direction of the learned judge. The appellant could not on the first indictment have been found guilty of the offence of robbery with aggravation. Nor is proof of robbery with aggravation equated with proof of killing.”
Having considered the desirability of modifying the practice under which the above two charges could not then be brought on one indictment, the learned Law Lord found that, had they been so brought, there would still be no bar to the robbery charge if the accused had not been found guilty of murder even though they arose from the same events, and that he could have been found guilty of both charges. Dealing with the question of autrefois acquit, he stated, citing an extract from Hale’s Pleas of the Crown (1778 Edition, Vol. 2):
      “Hale proceeded to point out (at p.246) that if a man is acquitted generally on an indictment of murder, autrefois acquit would be a good plea to an indictment of manslaughter of the same person. It would be the same death: the fact would be the same. The charges of murder and manslaughter only differ in degree.”
      Continuing, he stated:-

      “The principle seems clearly to have been recognised that if someone had been either convicted or acquitted or an offence he could not later be charged with the same offence or with what was in effect the same offence. In determining whether or not he was being so charged the court was not confined to an examination of the record. The reality of the matter was to be ascertained. That, however, did not mean that if two separate offences were committed at the same time a conviction or an acquittal in respect of one would be any bar to a subsequent prosecution in respect of the other. It was the offence or offences that had to be considered. Was there in substance one offence – or had someone committed two or more offences?” (emphasis added)
He found there was no permissible plea in bar.

In R v Beedie, again invoked on behalf of the applicant, the earlier case of R v Connelly was referred to, but the decision itself is, as in the case of R v Connelly, a narrow one. This was a judgment of the Court of Appeal concerning an unusual situation where summary proceedings had been commenced and finalised against an accused, and upon which he had been acquitted. Subsequently, in part at least due to intervention by the family of the deceased, an entirely new charge was brought by way of indictment on the more serious count of manslaughter arising out of the same event. The a[applicant relies on this judgment in support of the contention that the Court of Appeal accepted that, apart from the finding of the House of Lords that the principle of autrefois acquit was to be narrowly construed, two other principles were also recognised by the same court as having existed in the Connelly decision. A reading of the decision in the case of R v Beedie does not however really bear this out. The actual findings of the court can be mentioned in three short sentences, as is clear from the headnote. They are, (a) that the doctrine of autrefois convict or acquit is to be defined narrowly and applied only where the same offence is alleged in the second indictment as in the first; (b) that although as a general rule charges founded on the same facts should be joined in the same indictment, a second trial on a more serious charge might be justified in special circumstances; and; (c) it was for the judge to decide, in the exercise of his discretion, whether special circumstances existed. In a judgment which extends to eleven pages, the actual decision of the court is found on one page, which is understandable, given that very early on in the appeal it became clear that the only issue for the court to decide was whether the trial judge had, in that case, exercised his discretion correctly, and the appeal court concluded that he had.

The court now turns to the case of O’Leary v Cunningham. The facts in that case were also unusual, and require to be explained, so that the response of the Supreme Court to the questions raised on the case stated can be appreciated. An accused was charged, on the same indictment, for both robbery and receiving stolen goods. Both charges related to the same sum of money, the property of a man from whom it had been stolen. This Court has already noted that having regard to the nature of such charges, convictions in respect of both charges cannot, on well established jurisprudence, stand. In the District Court the accused was convicted only of receiving the stolen money. No order was recorded by the District Court judge on the robbery charge. The accused appealed to the Circuit Court against his conviction for receiving. The evidence adduced there established that the accused and others had in fact stolen the money from the complainant. Counsel for the accused argued that such evidence could only support a robbery conviction and could not, due to the nature of the charge, support a conviction for receiving stolen goods. This was disputed by the prosecution. The Circuit Court judge therefore stated a case to the Supreme Court on two questions, namely; whether in the circumstances above described the Circuit Court had power to convict on the receiving charge, and if not, whether it could convict on the robbery charge. The answer to each question was in the negative. In so far as the robbery charge was concerned, the Supreme Court found that although no formal finding was recorded by the District Court judge on that charge, it must be taken that the judge had, in fact, acquitted him of it, since it had convicted him on the charge of receiving, and that acquittal (although not recorded) could therefore be pleaded under the principle of autrefois acquit against any attempt, on appeal, to convict him for robbery, notwithstanding the evidence in the Circuit Court in that regard.

In the course of the judgment of Kenny J. he referred to R v Connelly in the following terms:-
      “The whole doctrine and its historical development were discussed most elaborately in the speeches of the Law Lords in Connelly v Director of Public Prosecutions. In the course of his speech, Lord Morris of Borth-y-Gest said…:
          ‘I pass therefore to a consideration of the questions which arise concerning the plea of autrefois acquit. In giving my reasons for my view that the direction given by the learned judge was entirely correct, I propose to examine some of the authorities and to state what I think are the governing principles. In my view both principle and authority establish: (1) that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted; (2) that a man cannot be tried for a crime in respect of which he could on some previous indictment have been convicted; (3) that the same rule applies if the crime in respect of which he is being charged is in effect the same, or is substantially the same, as either the principal or a different crime in respect of which he has been acquitted or could have been convicted or has been convicted.” (emphasis added)
Kenny J. then considered an extract from Cross on Evidence 2nd Ed, 1963 at p.281 and cited the following:-
          “The only clear cases of estoppel by record in English
      criminal law are those in which autrefois acquit can be successfully pleaded by the accused. The most usual test for determining the validity of such a plea is to inquire whether the accused had been previously acquitted of the same offence, or of a substantially similar offence or whether he could have been convicted at the first trial of the offence with which he is charged at the second.”
          “Therefore, the failure of the District Justice to record a
      verdict (though I think that the effect of what he did was to acquit the defendant) is irrelevant. The defendant could have been convicted of robbery in the District Court; as he was not convicted on that charge, he can plead autrefois acquit successfully to the charge of robbery on the hearing of the appeal.”
Several other cases along somewhat similar lines were cited to this Court which we have had regard to, but which it is not necessary to refer to in detail.

In the case of The People (Attorney General) v O’Brien [1963] I.R. 92, however, the Supreme Court was considering the issue of “the same offence” in the context of autrefois acquit. Kingsmill Moore J. in the course of his judgment, referred to R v Barron [1914] 2 KB 570 and stated:-
      “”The same offence” is given an elastic meaning. If all the elements necessary to constitute the first offence are also necessary ingredients in the second offence then the two offences are considered as being substantially the same. Thus an acquittal on a charge of common assault can be pleaded as autrefois acquit to an indictment for an assault causing actual bodily harm … for if a person has been acquitted of an assault this acquittal negatives the existence of the elements necessary for an aggravated assault. But if only portion of the ingredients to the first offence are requisite to the commission of the second offence the plea will not lie. Thus an acquittal on a charge of assault causing actually bodily harm could not provide the material for a plea of autrefois acquit on a charge of common assault. Similarly an acquittal on a charge of sodomy could not be pleaded as autrefois acquit in a charge of gross indecency between male persons, for there are elements required to be proved in a charge of sodomy additional to those required to prove a charge of gross indecency: R v Barron.” (emphasis added)
This very helpful and clear exposition serves two purposes. It makes clear why a plea in bar could arise in such a case of a prior acquittal. It also makes it clear precisely why, on the contrary, in the case of autrefois convict, the position is different, even if in some general respects the same principles can apply in both circumstances. It is easy to see that if a person has been acquitted of an offence whose essential ingredient has not been established, he cannot afterwards be convicted of a more serious offence, where the very same ingredient is also an essential element. If that essential element has caused the first acquittal, it cannot be revisited for the purposes of proving the second offence. On the other hand, in the case of autrefois convict, where an essential ingredient in the first has offence been proved, it does not automatically follow either in logic, or in law, that that is sufficient to sustain a plea in bar where the second offence requires additional elements to be established. Where, as here, possession of drugs is a necessary element in the s.3 offence, had the applicant been acquitted, there could not be a further charge in respect of possession with intent to supply or for possession with intent to supply drugs beyond a particular value, pursuant to s.15 or s.15A. The essential element of possession not being established in the first case, the applicant has been acquitted and that element, being essential also for the more serious charges(s) is equally missing. But where, as here, an essential further element, or elements, are required to be established, for the latter two charges under s.15 and s.15A, the fact that the applicant has been convicted, as opposed to acquitted, of the s.3 possession of drugs offence, does not have as it’s consequence that the same possession is sufficient to establish the s.15 or s.15A charges, or could lead lawfully to a successful plea in bar. In the present case, the Court accepts the respondent’s submission that the offences under s.3 and s.15A are not, on the jurisprudence cited, the same offence or, substantially the same offence.

The above cases do not lend support to the applicant’s claim that a prohibition on a further trial exists in all cases, where a conviction in the course of a first trial has been set aside due to matters arising in the course of the trial. Nor do the cases support a principle or rule that a plea in bar against a retrial on a more serious charge must succeed where a person has been convicted at an earlier trial, or on an earlier indictment, on a lesser charge.

Additional and influential factors in the above cases are also absent in the present appeal. There is no suggestion here that the prosecution charged the applicant on a “previous indictment” in respect of the charge of simple possession, upon which he was convicted, and then sought later to charge him on a “new indictment” in respect of the more serious charge of possession with intent to supply drugs having a value in excess of that prescribed under s.15A of the Act of 1977. This was an important factor in the judgment of Lord Morris of Borth-y-Gest, in R v Connelly and repeated by Kenny J., having regard to the fact that the former also considered the case of R v Erlington [1861] 1 B. & S.688, invoked on behalf of the applicant in the present application. In that case a plea of autrefois acquit was invoked against an indictment for assault causing actual bodily harm and common assault, on the basis that an information and complaint against the accused had previously been heard by justices of the peace and had been dismissed, and that the justices had signed a certificate of dismissal, the learned Law Lord stated:-
      “In speaking of a ‘series of charges’ the Chief Justice must have been referring to charges preferred at different dates, for there clearly could have been no objection to the inclusion in one indictment of the three counts that were preferred against Elrington. Series of charges are constantly and entirely properly preferred.” (emphasis added)
In this case, all three charges were preferred on a single indictment. Further, there was, in reality, no proper or lawful previous trial on the s.15 or s.15A charges. That is, in effect, the consequence of what this Court found when it set aside the convictions, the trial being, for the particular reasons giving rise to the setting aside of the convictions, unsatisfactory in law, so that, as mentioned in O’Leary v Cunningham the applicant was not lawfully convicted on the s.15A charge on the first occasion. There are therefore not only no “series of charges” in the sense used above, but also no “sequential trials” in the sense used in the case law, on the s.15 and s.15A charges. The retrial was part of a continuing single process on a single indictment which, as the respondent correctly states, is not yet fully concluded and on which indictment, there are or were several charges, which, on the above extract, is perfectly valid in law.

The Court does not agree however with the contention that the position is the same as if there has been a jury disagreement, as the respondent suggests, a situation to which rather different principles apply, and no jurisprudence in relation to the same was opened to the court. The retrial is permitted, inter alia, on the basis that the first convictions were set aside, not on grounds of insufficiency of evidence, as would be likely in the case of jury disagreement, but on the basis of the technical legal deficiency in the manner in which the trial was, in fact, conducted.

It is not either the case that the jurisprudence requires that in all circumstances no trial or retrial can lawfully take place where a person has been convicted on a lesser charge, even one on a previous indictment, as is clear, in particular, from R v Beedie, still less where as here, the retrial did not occur on a new indictment. It depends on whether, in a trial of an offence on an earlier indictment, the accused could have been found guilty, on the evidence adduced, of the extant charges arising in the second trial. The applicant could not in the present case have been found guilty on the s.15A charge, on the proof established to support the s.3 conviction in the earlier trials.

The failure to raise the issues previously
Having regard to the foregoing, whether the convictions are considered under the R v Hill approach, or on the principles found in R v Connelly, R v Beedie and O’Leary v Cunningham, it would in any event be impossible to reach an appropriate conclusion, without having regard also for the existence, if any, of exceptional circumstances referred to in the jurisprudence. In this case, the following exceptional matters arise on the third legal issue mentioned by Mr Aylmer on this first ground:

(a) At no time during the course of the original trial was any application made on behalf of the then accused, by way of requisitions on the charge, or otherwise, to have the jury directed in accordance with the contended for rule or practice adopted in R v Hill which the applicant now argues was always the law. Even if, on the applicant’s case, it is correct that both the trial judge and the prosecution erred in that regard, this did not, and could not, absolve the applicant from raising it, as he is obliged to, on all the authorities. In The People (Director of Public Prosecutions) v Noonan [1998] 2 I.R. 439 Geoghegan J. giving the judgment of the Court stated:-
      “It is sufficient to say that, as this court has said on numerous occasions in the past, of course it is the duty of counsel for the prosecution or the defence to draw the attention of the trial judge to any aspects of his charge which require reconsideration on his part so as to give him an opportunity of putting any matter right before the jury reach their verdict.” (emphasis added)
While that extract concerned, specifically, questions arising on the charge, stricto sensu, it applies equally to all matters of concern in the course of the trial, so that the trial judge may rule on the same, and his ruling may then properly be the subject of an appeal. It is, after all, the rulings of the judge in the trial as disclosed by the transcript as well as his charge to the jury which are the very basis of the grounds for an appeal to this Court. The obligation was also considered in the judgment of this Court delivered by O’Flaherty J. in the case of The People (D.P.P.) v Moloney (Unreported, 2nd March 1992), in which he stated:-
      “We would wish to reiterate the jurisprudence of the court which has been in place for many years that there is an obligation on counsel on both sides, the prosecution and the defence, to bring to the attention of the trial judge any inadequacy they perceive in his directions to the jury.
This issue was also considered in detail in the more recent case of The People (Director of Public Prosecutions) v Cronin [2003] 3 I.R. 377 in which the decision of this Court, (Hardiman J.) included the following statement, having cited the above extract:-
      “We would respectfully concur with what is said in this passage. The reason for this rule or statement of principle is not at all a technical one, or one merely designed to assist in the orderly conduct of trials and appeals. It is to ensure a proper relationship, based in reality, between the conduct of an appeal and the task on which the court is engaged, which is to say whether or not the trial was a safe or satisfactory one.”
Several more recent cases echo these same principles.

(b) Clearly the applicant could have raised the matter at the first trial. Neither was the matter adverted to by either party, during the course of the appeal to this Court in November, 2005, but in particular by the applicant who would, in consequence of any ruling of this Court, be likely placed in the position he found himself in, and which event must have been clear at the time. Indeed less than three months later the application for a plea in bar was heard on behalf of the applicant on the re-arraignment, presumably having been first prepared in some detail in advance. It cannot reasonably have been assumed that the respondent would not retry the applicant, having regard to the reasons given by this Court for quashing the convictions on the s.15 and s.15A charges. Nor was it unlikely, having regard to the facts surrounding the jury’s decision on the s.3 conviction, but that this conviction might well survive the appeal, and the sentence would be served. Even if these latter matters only became certain upon delivery of the judgment, the problem was then perfectly clear, but remained wholly unaddressed at the time.


Conclusions on the First Ground:
This Court considers that, as to the claimed mischief to be cured, that of the existence of alternative verdicts on the basis of the case law, there are reasons why, on the facts of this case, it should reject the argument on the part of the applicant that his conviction for the charge under s.15A should now be quashed.

On a correct reading of R v Hill and assuming it to be applicable at least in the context of this case, this Court considers that, at its highest, there was an error in the original trial, in the sense in which this is explained in the case law, which without difficulty could have been corrected at an appropriate stage, and the lesser sentence quashed. Indeed the same approach was also adopted in the more recent Court of Appeal decision in R v Thompson, supra., where the matter again appears to have been dealt with on the basis that there was a procedural irregularity, but not one which rendered the conviction unsafe. There the Court of Appeal stated:-
      “We accept that there was here an irregularity for the reasons which appear from the description of events which we have given. It is argued by Mr Routledge on behalf of the appellant that it is an irregularity which makes the conviction on count 4 unsafe. However, when it came to explaining why it was that it made the verdict on count 4 unsafe, he was, as it seemed to us, in some difficulty. … But as it is, the judge ultimately received, on counts which were always known to be alternatives, two guilty verdicts: one unanimous and one by a majority, whereas had the regular and normal procedure been followed he would have discharged the jury from giving a verdict on count 3 once a guilty verdict had been returned on count 4.
      …
      The appropriate course, as is conceded by counsel for the respondent, is to quash the conviction on count 3 in the light of the conviction for the more serious alternative on count 4. That is what we do.”
As in R v Hill the irregularity was dealt with by simply correcting an error and quashing the lesser conviction. The appropriateness of the court being free to approach the issue on a case by case basis is clearly recognised in the jurisprudence. In R v Fernandez the Court of Appeal, in dealing with this issue stated:-
      “Circumstances vary from case to case and therefore the correct way in which to remedy an irregularity of procedure will similarly vary: (e.g. see Andrews (1986) 82 Cr.App.R. 148). Where, as in the present case and in those to which we have referred, the irregularity does not affect the validity of the proceedings as a whole or make the verdicts on the more serious counts unsafe, the course taken by the judge in the present case (after he appreciated the error that had been made) was appropriate and within the discretion open to him.”
Although the above extract is from a case involving truly conflicting verdicts, the finding is equally applicable in the context of this application.

In the present case, the fact is that on the applicant’s own case, the matter could and should have been fully addressed before the original trial judge and there dealt with. No reason has been tendered as to why it was not raised on any prior occasion other than to contend that this was an error on the part of the trial judge and/or the prosecution at the trial. On the authorities however, the defence is not excused from raising any matter which it considers to be of significance, as in the present case, in the course of a trial, but rather is obliged to raise it, and in the case of an appeal, when in error it has not previously been raised, is obliged to furnish an explanation as to why it was not originally raised (The People (Director of Public Prosecutions) v Cronin). Even in the course of the hearing of this appeal, no credible explanation has been tendered for the failure to raise the issue at the trial or on appeal.

Assuming that the case law such as R v Beedie should also be considered as helpful in the matter, that case too makes it clear that a subsequent trial will not always be prohibited if exceptional reasons exist as to why it should proceed. Even if there had been sequential trials on separate indictments, which is not the case here, it does not follow that a second trial must be prohibited. There is no reason why, in the absence of any explanation for the failure to address the matter, a conviction – perfectly valid on its face – on an indictment on which all counts were validly included, should be set aside in favour of the applicant on the basis that the applicant was earlier convicted of a different, and lesser, offence, even one arising out of the same events. Nor is there any reason why, on the case law invoked on behalf of the applicant, a plea in bar should succeed against the s.15A retrial. This Court is satisfied that the learned Circuit Court judge before whom that application was made did not commit any error in law in finding that the plea in bar could not succeed.

As to the second possible mischief to be cured, that is, ensuring against the possibility of doubly punishing a person, this principle was recently reaffirmed by Geoghegan J. as being one of the three elements of protection for an accused in circumstances where there are attempted sequential trials, in his judgment in Registrar of Companies v Anderson [2005] 1 IR 21, which in other respects is not relevant. This case was not cited on this appeal, but the Court is of the view that since it expresses only the particular protections suggested to exist according to other cases, it is not necessary to hear the parties on it. In that case, Geoghegan J. found that the protections include:
      “protection from being punished multiple times for the same offence”;
For the purposes of this part of the judgment it is unnecessary to enter into any further debate on whether or not an offence under s.3 is the “same offence” as one under s.15A, since the Court has accepted the respondent’s argument that they are not, is the preferable argument in law. However, it is appropriate, so as to ensure that an accused does not suffer the particular mischief of double punishment that a trial judge should have regard to the fact that the applicant has been punished once in respect of the s.3 possession of drugs conviction arising out of the same events, and has served that sentence. In the present case, the trial judge had regard for the fact that the applicant had served that sentence. It would be wrong for this court to ignore the steps actually taken by the sentencing judge in the retrial, when fixing the appropriate sentence on the s.15A conviction, so as to ensure that the earlier sentence served was fully taken into account, In his judgment, having come to the view that the statutory minimum sentence of ten years was the appropriate sentence to impose, he stated:-
      “Now in effect he has already served, subject to remission, two years of that 10 year sentence, that is the two years that he was sentenced to under Section 3 and was to run concurrently with the 10 year sentence for Section 15(A). He has served two years of that ten year sentence already under Section 3(C) of Section 27 of the Misuse of Drugs Act 1997. I am entitled to take into account exceptional and specific circumstances of the person convicted, and in this particular instance there was an exceptional and specific circumstance in that in effect this man has already served two years of the ten year sentence which I am minded to give, so I therefore sentence him to eight years imprisonment commencing today.”
Whether the above was a correct classification by the learned trial judge on the retrial of the earlier time served or not, and upon which it is unnecessary for this Court to express any concluded view, the actual approach adopted by the trial judge on sentencing to ensure that, on the interpretation most favourable to the applicant, the protection outlined in the judgment of Geoghegan J. in Registrar of Companies v Anderson was guaranteed, was a correct approach.

Applying the approach in R v Hill this would have had, as its consequence, that the s.3 conviction should or might have been quashed, had an application been made at the appropriate time. Since this was not be done by the time of the retrial, having regard to the particular history of the matter, this Court is satisfied that the reduction in the ten year sentence imposed by the learned trial judge on the s.15A charge, to take into account the time already served on the lesser conviction under s.3, was an appropriate and proportionate application of the law to conform to the approach referred to in Registrar of Companies v Anderson.

Having regard to the several exceptional factors set out above and to the law as exposed in the jurisprudence, the Court concludes that there are no valid reasons adduced on behalf of the applicant for finding that this ground for leave to appeal should be permitted.

The Grounds Concerning “Possession” of the Drugs : The Argument
On this second extant ground raised on behalf of the applicant, Mr O’Higgins, Senior Counsel, submits that since the prosecution had alleged only that the applicant had been involved in moving the materials found from one place (a motor car) to a ditch at a particular site, it had failed to establish beyond reasonable doubt that the applicant had sufficient possession of the drug amphetamine, that is to say, sufficient knowledge of and control over it, having regard to the burden which the prosecution must discharge. He contends that while the charge to the jury on the issue of possession was a reasonable charge, the trial judge had failed to charge specifically on the question of the existence of mens rea in the sense used above, vis-à-vis the particular drug. Mr. O’Higgins submits that since trials on s.15A charges are quite rare, because in many cases there are guilty pleas entered to such charges, it was important that the jury should have been appropriately and fully charged on this issue.

The respondent argues that this question was at all times one for the jury, and that it is no function of this Court to review this. There had been no suggestion at the trial that the trial judge should have withdrawn the charge from the jury because there was allegedly insufficient evidence to enable them to conclude that the applicant had “possession” of the amphetamine. On the contrary, it is submitted that there was ample evidence from which the jury could have so concluded.

Conclusion
On this ground the position is clear. It is acknowledged, very fairly, by Mr. O’Higgins Senior Counsel, and is also clear from the transcript, that no requisitions were raised on the judge’s charge on this issue, nor at any time during the course of the trial upon which any ruling was sought or made. That being so, the applicable jurisprudence, namely D.P.P. v Cronin, applies. It is that such a ground may not be raised on appeal, in the absence of its not having been raised in the course of trial, save in exceptional circumstances, and on the condition that a satisfactory explanation is tendered to this Court as to why it was not raised originally at trial. In the present case none of the criteria for seeking to have the matter dealt with by reason of exceptional circumstances has been put forward. That being so, it seems to this Court that there must on the learned trial judge’s charge, have been good grounds for not raising this issue as the very skilled and experienced counsel who acted on behalf of the applicant at the trial would have been more than attentive to the applicable criteria. This Court rejects the application for leave to appeal on this ground on the basis of the applicable and clear jurisprudence in that regard.

The Forensic Inquiry Ground as to Purity and Value: The Argument
Turning to the last of the grounds of this application, this encompasses two issues, namely whether the prosecution sufficiently established; (a) the purity of the drugs, and; (b) the value of the drugs, for the purposes of a conviction under s.15A of the Misuse of Drugs Act 1977. According to Mr. O’Higgins’ argument, neither was sufficiently established, and the conviction ought in consequence to be quashed. The arguments on the both of these issues, but particularly on the first, are quite technical, but that of course makes them no less valid. As to the relevant evidence, it should be recalled that a bag - called a “rucksack” in the judgment – was discovered, which, when found by the gardaí, contained the following:

      1. Forty-eight tape bound plastic bags or packs all contained inside a black refuse sack.


      2. Another two black refuse sacks one inside the other and inside the inner one of which there was a quantity of loose powder.
As to the state of the packaging or refuse sacks, the analysis/ tests carried out, and the purity of the materials found, the evidence tendered consisted of the following. Detective Garda Logan, on the 5th October, 2006, gave evidence of the find, consisting of one bag (rucksack) containing several small transparent bags in one black plastic sack and a large quantity of loose white powder in a second plastic sack, and formed the view that it was amphetamine. Dr. Mary Casey, of the Forensic Science Laboratory, gave evidence that on receipt of the above materials, she examined a sample of the loose white power as well as a sample from one of the 48 tape-bound plastic packs. She established that the powder in the sample from the pack contained the drug amphetamine. Under cross-examination she said that amphetamine was the “main component” present in the powder, and that there were “three other minor components” also present. She also analysed the loose powder and found that it contained amphetamine, which she said was the “major component” in that. She took the sample from the bulk quantity of loose powder found in the inner black refuse sack found within the bag. She did not analyse the precise purity content of the amphetamine itself.

Another expert witness, Dr. Raggett, also gave evidence in relation to the drugs. She too is employed in the Forensic Science Laboratory. She gave evidence of receiving all of the above listed materials. She analysed the powder in 16 of the 48 plastic packs. She found these weighed between 25.4 and 27.4 grams and their total weight was 1,286.5 grams. As to the refuse sack containing the loose powder her evidence was that that it contained 4.79 of cream coloured powder. She said that her analysis of the 16 packs and of the loose powder confirmed “the presence of amphetamine”. In the course of cross-examination, her evidence was that she did not determine the actual amphetamine content of the powder.

Mr. O’Higgins argues that he is not under any obligation to disprove any

of the above matters, by presenting any independent evidence as to the required or appropriate quantity to test, or as to its purity, and that is undoubtedly the case. The real issue is whether, with the above facts, as established in evidence, a jury properly charged, could validly and lawfully conclude that the applicant was in possession of the quantity of the prescribed drug in question. Counsel puts it in a slightly different way. He says that given that only one small portion was proved to contain a significant quantity of amphetamine, the question is, what reasonable conclusion can be drawn from that? He submits that the only valid conclusion to be drawn is that a quantity of the materials found, being a very small portion indeed of the whole, can be said to have been established by the prosecution as having contained a significant quantity of amphetamine. And was it reasonable, and he says it was not, to ask the jury to accept that, on the basis of the very small analysis actually carried out, all the materials were, beyond reasonable doubt, the same. He argues that it was not reasonable for the jury to conclude that it was the same, as that required scientific evidence to that effect, and none was presented by the prosecution in relation to the vast bulk of the material found.

The respondent submits that there was ample evidence before the jury on this issue.

Conclusion
Apart from the fact that this too was not an issue raised in the course of the trial, nor the subject of any requisitions, or rulings, and the law in relation to the same, from at least the case of D.P.P. v Cronin and the quite large numbers of cases both before and since, is clear as to the consequences, this Court is not satisfied that, even if it were appropriate to consider this issue within the exceptions permitted by that case, this aspect of the ground has any real merit. The sequence of analysis is clear. A number of packages, one third in all of the individual tape bound plastic packs, as well as a portion of the loose powder taken from the bulk amount, were analysed by Dr. Raggett and found to contain amphetamine. Dr. Casey gave evidence of the extent of the amphetamine content in what she had previously analysed, in the sense set out above. She analysed, it is true, the contents of only one of the 48 plastic packs, and only a small quantity of the bulk powder.

The question which arises therefore is whether the evidence of the analysis actually carried out by these witnesses was sufficient for the purposes of this trial, and in particular was sufficient to permit this Court to find that the conviction by the jury was safe. The question as to what is or is not sufficient analysis, in terms of amount, or the purity of the drugs, must depend on the circumstances of each case. There is no principle or rule of law known to this court which requires that in each and every case, every package found must inevitably be individually analysed before a conviction can be considered safe. In the present case, the 48 packs, when found, were, on the evidence, wrapped in a substantially identical manner, and all were placed together within a black refuse sack and then within the rucksack. The loose powder was found, without any apparent division or distinction between what was taken for analysis and the remainder of the bulk, within the double black sacks, but also within the same rucksack. An analysis of one pack of the 48 packs, and a small sample of a large quantity of loose powder, both showed amphetamine as being either the “main component” or the “major component” in the samples. Sixteen of the 48 packages found in the same black refuse sack, on analysis, contained amphetamine, as did the analysis of loose powder from the second black refuse sack in the same outer rucksack. That is not to say that in a different case, or on particular but different facts, it would not be necessary to analyse a greater number of packages found, or a greater percentage of a bulk product.

The Court is satisfied that, with the above analysis of the contents of 16 of 48 plastic bags as well as of the loose powder in the present case, even though the amount of loose powder actually analysed was small, and with the evidence as to content, there was sufficient evidence of the analyses carried out by both scientists, upon which the jury could, properly charged, safely and reasonably deduce or conclude that all the materials found were in fact the same as the materials which, on analysis, were determined to be prohibited drugs consisting of, in the main, amphetamine.

This ground is, in the circumstances, rejected on the basis that it is without merit.

The Court now turns to the second legal issue on this ground, which concerns the value of the drugs for the purposes of s.15A of the Act of 1977. The Section reads as follows:
      “15A – (1) A person shall be guilty of an offence under this section where:
      (a) the person has in his possession, whether lawfully or not, one or more controlled drugs for the purpose of selling or otherwise supplying the drug, or drugs to another in contravention of regulations under section 5 of this Act, and
      (b) at any time while the drug or drugs are in the person’s possession the market value of the controlled drug or the aggregate of the market values of the controlled drugs, as the case may be, amounts to £10.000 or more.”
The above sum was altered to €13,000 by the provisions of the Euro Changeover (Amounts) Act 2001.

The evidence in relation to this was provided by Detective Garda Logan, who indicated that the total “street value”, taken by this Court to mean the market value for the purposes of the above section, was to be calculated on the basis of €12 per gram. On the basis of the total weight found, this would amount to something just short of €73,000, and therefore well above the statutory minimum applicable for a conviction under s.15A.

Mr. O’Higgins Senior Counsel, however, submits that a correct analysis of this witness’s evidence on examination and cross-examination is that the prosecution had failed to establish that the true value exceeds the statutory minimum. This is based on the following argument. He submits that in order to place a correct value on the prohibited drugs it is necessary to discount from the total amount which a person might be prepared to pay the amount applicable to the presence of “innocuous materials” in the drug when being traded on the street. The addition of such innocuous materials is, in this Court’s view, established on the evidence. Given that the evidence of Dr. Raggett was to the effect that she did not herself test for the extent of amphetamine in the materials she tested, that is to say, for its purity, it was not possible to say that the vast bulk of the materials actually found would or could have a street value of the amount contended for by the garda witness. Counsel submits that in cross-examination, the garda witness, had accepted that each pack sold to a customer could be and was likely to be diluted with several other powders. Further, it was accepted by him that sellers could and sometimes do sell powder which was substantially below, in effective or active ingredient, what would be required by a customer and thereafter custom would be lost to the seller, leaving the value at a very low level, or even nothing, and certainly not necessarily above the statutory minimum, which must be established by the prosecution.

Conclusion
This, at first sight, appears to be an attractive argument. But the Court does not accept that it is a valid one. Here the trial court was not dealing with evidence concerning diluted materials sold over a period of time when, even if it were true, a seller might eventually lose custom because of his diluting activities, and therefore the value of such drugs might be significantly less, whether above or below the statutory minimum. Here we are dealing with an occasion when materials were found, a portion of which was found to consist of amphetamine. This Court has already found that a jury properly charged could lawfully conclude from the evidence tendered that all the material was the same. Whatever therefore about an argument which might be made in other circumstances, and upon which the Court expresses no view at all, since it does not arise in this case, the position is that evidence tendered by the garda was to the effect that the quantities of drugs of the level involved here, whatever their final make up, would have a street value of the amount given. That was so, on the evidence, whether those materials might eventually be over diluted by a future vendor, or not. The garda witness gave evidence which was credible and not countered, that, regardless of the possibility of dilution, the street value would remain the same. This was evidence upon which a jury was entitled to rely in coming to its view that the applicant had possession of drugs for supply with a street value beyond the statutory threshold.

Even if the Court accepted that it sometimes occurs that the drugs are over diluted, as was suggested by the defence and accepted by the garda witness, it is not reasonable to speculate that there would likely be over dilution to the extent or consequences contended for in respect of the particular materials found, and it was not the case for the defence that this would be the norm.

No application was made to the trial judge to discharge the jury on the grounds that there had been a failure to establish an essential ingredient in the offence, and Mr. O’Higgins fairly and correctly accepts that this was the case. But even if the Court were prepared to overlook this, this Court is satisfied that on the evidence tendered, there was no error in law on the part of the trial judge, nor did the prosecution fail to establish beyond reasonable doubt that the amount of drugs found had a market value, for the purposes of s.15A of the Misuse of Drugs Act 1977, well in excess of the statutory minimum. The Court rejects this element of this third ground of the application for leave to appeal.

Having regard to the findings on the above grounds, this Court rejects the application made on behalf of the applicant for leave to appeal, treats the application as the hearing and rejects all grounds.






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URL: http://www.bailii.org/ie/cases/IECCA/2008/C99.html