DPP -v- Perry Wharrie [2013] IECCA 20 (19 April 2013)

Judgment Title: DPP -v- Perry Wharrie

Neutral Citation: [2013] IECCA 20

Court of Criminal Appeal Record Number: 218/08

Date of Delivery: 19/04/2013

Court: Court of Criminal Appeal

Composition of Court: MacMenamin J., de Valera J., McGovern J.

Judgment by: MacMenamin J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
MacMenamin J.	Link	Appeal -v- Conviction Dismissed

Outcome: Appeal -v- Conviction Dismissed

COURT OF CRIMINAL APPEAL

CCA No. 218/2008

MacMenamin J.
de Valera J.
McGovern J.

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/RESPONDENT

AND

PERRY WHARRIE

RESPONDENT/APPELLANT

JUDGMENT of the Court of Criminal Appeal delivered the 19th day of April 2013.

1. The judgment which follows concerns the appeal of the appellant, who was convicted of three offences before the Circuit Criminal Court on the 22nd July, 2008, after a trial lasting 41 days. The convictions in question were under the Misuse of Drugs Act 1977, namely, (i) simple possession of a controlled drug under s. 3 of the Act of 1977, as amended; (ii) possession of such a drug for the purposes of sale or supply pursuant to s. 15 of the Act of 1977, as amended; and (iii) possession for sale or supply of such a drug, the value of which exceeded €13,000, pursuant to Section 15A of the Misuse of Drugs Act 1977, as amended. The convictions, which are the subject of this judgment, related to an attempt to import into the State a consignment of cocaine which had been brought across the Atlantic from Venezuela in a catamaran, the “Lucky Day”, to a meeting point at a navigation buoy some 30 miles off the coast of West Cork. The cocaine, some 1.5 metric tonnes was thereafter to be transferred into a rigid inflatable boat (a “RIB”) and landed at Dunlough Bay near Mizen Head. The consignment was the largest seizure in the history of the State. In total, it amounted to approximately 1,554 kilos. At the trial and sentencing stage, it was variously stated to have values ranging between €100m and €440m. The cocaine was of a very high purity, and was contained in bales. The crime was detected as a result of the RIB foundering off the coast. One of the accused, Martin Wanden, was removed from the sea in very close proximity to 62 bales of cocaine and the sunken RIB at 9.30 a.m. on the morning of the 2nd July, 2007. Another of the accused, Gerard Hagan, pleaded guilty prior to the trial in Cork Circuit Court. The appellant herein, together with two other accused, Martin Wanden and Joseph Daly, were tried before a jury, after which they were convicted on a unanimous verdict. One of those convicted, Joseph Daly, appealed his conviction, but subsequently withdrew that appeal.

Background
2. On the morning of the 2nd July, 2007, Gerard Hagan, one of those convicted, called to a house owned by the O’Donovan family in Dunlough Bay. He informed the occupants that three people had been in a boat which had sunk; that he and one other of those in the boat had got ashore; but, one remained in the water needing help. Mr. Hagan was wet and cold. Despite his attempts to avoid a callout, the emergency services were alerted. At the time, there was a force 5 or 6 wind. There was a heavy swell. The emergency services arrived by lifeboat. They lifted Mr. Wanden out of the sea. Both Martin Wanden and Gerard Hagan were brought to Bantry Hospital suffering from hypothermia. The local Coast Guard quickly formed the view that this had been an attempted drug importation. During the rescue operation, the bales containing cocaine were plainly visible floating in the water. The extraordinary circumstances precluded any possibility that what had been in contemplation and execution was some form of fishing expedition which had gone wrong.

3. The investigation disclosed that there was a green LandRover Defender abandoned at the headland overlooking Dunlough Bay. This was just one element of a large scale logistical operation involved in the importation. The local Coast Guard encountered two men on the headland. These were the appellant, Perry Wharrie, and his co-accused, Joseph Daly. Members of the Coast Guard approached the men. They indicated that there was another man still in the sea. However, remarkably, neither the appellant nor Joseph Daly remained in the vicinity despite the fact that to their knowledge a man remained in the sea. The appellant and Joseph Daly removed themselves from the scene, and were arrested, in a dishevelled state, some two days later.

4. The prosecution case at the trial was that the appellant was part of a large scale drug trafficking operation. This involved a significant number of people. The evidence was that very substantial finance was invested in the organisation of this operation. The appellant was charged, along with others, as part of a joint enterprise. The prosecution claimed that this joint action involved the sourcing of cocaine from South America, and its carriage across the high seas in the catamaran to the rendezvous, a point off Mizen Head. There, it was offloaded onto the RIB, thereafter to be brought into Dunlough Bay and landed in the vicinity of Sheepshead. The operation involved a large number of individuals; the sourcing of four wheel drive vehicles and two RIBs equipped with high powered engines (specially installed); the use of false passports by a number of individuals, allowing them to enter and leave both this State and other jurisdictions by means of deception; and the use of mobile and satellite phones to maintain contact between the participants and with the boat. Some of the subsequent extensive media coverage suggested that the RIB foundered close to the shore because it had been refuelled with diesel fuel instead of petrol.

5. The prosecution submitted to the jury that, on the basis of this circumstantial evidence, the jury could infer that the appellant had been engaged with others in a large-scale, joint enterprise. It was no part of the prosecution case that the appellant had been on either the catamaran or the RIB, but rather was involved and complicit in the reception of the drugs into Dunlough Bay. It is necessary now to address the issues raised in this appeal, which are dealt with in sequence.

Publication of Sunday World article
6. This was a very “high profile” event. The very circumstances of the arrest of the confederates, and the finding of the RIB and such large quantities of cocaine in the sea attracted widespread publicity.

7. The trial began on the 21st May, 2008. On that date, the learned trial judge gave the jury a warning to avoid discussing the case with anybody. On the Friday of the first week, he gave a further general warning to the jury also in relation to publicity. He specifically advised the jurors that not only were they perfectly entitled to, but that they must, ignore anything said or written about the case in the media. They were told that they were the sole deciders of fact. They were warned that their decision was to be made only on the evidence heard in court. They were reminded not to discuss the case with anybody. They were warned to keep their minds concentrated on what was heard in evidence, to exclude everything else, and not to be influenced by extraneous influences or outside discussion.

8. The judge’s concerns proved to be well founded as, on the following Sunday, of a bank holiday weekend (the 1st June, 2008), an article was published on page 24 of the Sunday World under the by-line of a journalist, Amanda Brunker. This contained a photograph apparently depicting one of the lifeboats involved in the rescue at the scene. Beneath, there was the heading “Cocaine Dopes a Real Joke”. The journalist wrote that it appeared that the people involved in smugglings drugs were just as stupid as the people who took them. She said that the previous July she had been angered that lifeboat volunteers had had to put their lives at risk in choppy waters off the Cork coast line to save persons, who she referred to as “filthy cokeheads”, after their boat got into trouble.

9. The author went on to state that the sight of so many bundles of cocaine floating in the water gave many an excuse to make a few jokes. She described the attempt to carry out this importation as having taken place after months of meticulous planning, using boats, cars, rented houses, and GPS satellite systems. However, she wrote, this attempt was reduced to farce when the engine on the confederates’ “inflatable dinghy” seized after it was filled with the wrong fuel. The article then stated:

“Proving model candidates for the TV’s “Dumbest Criminals” three English men, Martin Wanden, 46, Joseph Daly, 41, and Perry Wharrie, 48, (the appellant) lost their €500 million worth of cocaine into the sea after they put diesel into the petrol engine”.

The article continued:

“Due in court soon to face the music, I’m sure their sinking feeling will continue for some time to come”.

10. The article, now an exhibit in this court, was apparently contained in a narrow, left-hand, side-bar column on the page 24 of the newspaper. It was placed on an opinion page. The headline was not of the most prominent kind. The newspaper column in question was no more than three inches wide. It would be necessary for a reader to move through 23 pages to get to it. But The Sunday World is of course a wide circulation newspaper.

11. The issue was raised on the following Tuesday when the trial resumed. Applications were made on behalf of the various accused to discharge the jury because of what was claimed to be the prejudicial nature of the content. Counsel for the various accused expressed divergent views as to whether the jurors should be questioned as to whether they had seen the article in question. They all submitted that what had occurred was a contempt of court, and that to proceed in the face of this article would be unsafe in light of its prejudicial nature. Having heard submissions, the learned trial judge held that the degree or extent of the publicity was not such as to warrant discharging the jury. It is now said he erred in his decision.

12. At a subsequent application brought by the Director of Public Prosecutions for contempt of court against the Sunday World, the managing editor of the newspaper explained that what had occurred was an unfortunate error; that the offending article had in fact been spotted, and agreement reached that it would not be published; but, that nonetheless, that it had been transmitted to the location where the newspaper was printed and, thus, found its way into the public domain. The trial proceeded.

13. The appellant’s case now is that the publication of this one article was prejudicial. It is the only article under consideration. Counsel for the appellant, Mr. Michael O’Higgins S.C., submitted that in the context of the trial, where the evidential parameters were rather narrow, the utilisation of the heading “Cocaine Dopes a Real Joke” was prejudicial, in that it suggested those on trial were “cokeheads”, and that they would be model candidates for a “Dumbest Criminals” television show.

14. The appellant’s contention is that the article contained a pronouncement of the appellant’s guilt for the offences, with which he was charged. It said he was a drugs smuggler, that he had been present on the boat on which cocaine was being transported, that he put diesel into a petrol engine on the boat, and that the drugs were worth €500 million. Counsel points out that it was never asserted, either in the book of evidence or the sworn testimony in the trial, that the appellant took cocaine, that he was present on the boats in question, or that he had put diesel fuel in the petrol engine of the RIB.

15. The learned trial judge indicated that he would not discharge the jury as anything said in the article could be rectified in his charge at the end of the trial. It transpired that the trial was a very lengthy one. Many points were taken as to the admissibility of evidence. Submissions on those matters were made in the absence of the jury. Counsel for the prosecution (who also appeared in this appeal) indicated that, in the course of submissions, a number of earlier newspaper articles were handed in to the trial judge, but these considerably pre-dated the trial. He submitted that the article itself was an entirely vacuous opinion piece. It did not disclose any facts that had not by then been outlined in the prosecution’s opening to the jury. What was said about the appellant was essentially pejorative material rather than any fact, which had not already been outlined in the opening.

16. Mr. O’Higgins S.C. (who did not appear at the trial) submitted that the article was so prejudicial that the learned trial judge (His Honour Sean Ó’ Donnábhain) erred in not discharging the jury. It is necessary now to consider the correctness or otherwise of the judge’s decision in light of the legal authorities cited.

17. The court would first make the following comments. First, by way of contrast to the highly sensationalist coverage of other cases in the past number of years, this article was not splashed on the front page of the newspaper. It was not sensationalised. The article did not purport to be a news story at all. It was an opinion piece, placed on an opinion/feature page, far into the newspaper. By the time it was published, it was known that the appellant was one of the accused. The circumstances upon which the prosecution would be relying had been made known to the jury. No new fact or piece of evidence relating to the offence appeared, other than the suggestion that the appellant was a cocaine user. It did, however, assert the appellant’s guilt. While accepting all this, counsel for the appellant contends that, having regard to the nature of the case, the publication was nonetheless serious. But it is not part of this case that the jurors had actually read the article, or even knew of it. It is not said that a juror brought the article to the judge’s attention. The material was published after the sixth day of a trial, which ultimately had a 41 day duration. Thus, the actual period which elapsed between the publication of the article, (the 1st June, 2008), and the conviction of the appellant (the 22nd July, 2008), was a period of some seven weeks. There were days during the trial when applications were made to the judge to rule out evidence. These applications were heard in the absence of the jury.

18. The trial judge took the view that the article did not introduce material of which the jury was unaware, and that it was merely an unfortunate commentary on the trial, expressing the writer’s view as to the guilt of the accused. The judge asked himself whether that would cause a real or serious risk of an unfair trial. He refused to discharge the jury, referring in his ruling to the intelligence and robustness of a jury who had the ability to accept warnings and to work in accordance with their oaths. Counsel for the appellant complains further that there were no further general warnings about media broadcasts, coverage or publications given to the jury during the course of the trial. But against this, no complaint is made about subsequent newspaper coverage.

19. In exercising the jurisdiction as to whether to discharge a jury due to the publication of allegedly prejudicial material, a trial judge is involved in the exercise of his or her discretion. In The People (at the suit of Director of Public Prosecutions) v. Nevin [2003] 3 I.R. 321, this Court, in dismissing an application brought by an accused, observed that there were circumstances in which a trial would be stopped on the grounds of adverse media publicity, but that the trial judge must act within a range of discretion, within which she could legitimately consider whether the accused would get a fair trial. In Nevin, this Court, on appeal, held it would not interfere unless the discretion exercised by the trial judge was “clearly” wrongly exercised. The Court pointed out that an appeal court would be considering the matter after the event and would have to consider whether there was any risk that the accused had, in fact, had an unfair trial. The first aspect of the test then is whether the discretion is clearly wrongly exercised.

20. There are a range of authorities on prejudicial publicity arising from judicial review applications. Prior to Nevin, in D. v Director of Public Prosecutions [1994] 2 I.R. 465, Denham J. pointed out that “the applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons”. She made clear that in a hierarchy of constitutional rights applicable in this context, it is the superior right. That judge pointed out that a court shall also give consideration to the community’s right to have an alleged crime prosecuted in the usual way. However, there was no doubt that the appellant’s right to fair procedures in the trial is superior to the community’s right to prosecute. If there was a real risk that the accused would not receive a fair trial, then there could be no question of the accused’s right to a fair trial being balanced detrimentally against the community’s right to have alleged crimes prosecuted.

21. Nevin was a case where there had been a very high degree of prejudicial publicity, including relentless colour pieces. There were repeated difficulties in relation to the very sensationalist coverage. This necessitated the judge giving a special direction to the jurors, who also issued warnings as to the type and nature of coverage which was permissible for the duration of the trial. Having outlined this background, this Court observed in the Nevin appeal at p. 335:

“The court must now consider whether the conviction of the applicant is open to be quashed with or without a new trial ordered by reason of allegedly wrong orders made by the trial judge in relation to the initial application to stop the trial, the later applications to postpone the trial whether by reason of the publicity …. As has already been pointed out, these are in the first place matters for the discretion of the trial judge. This court could not hold that any of those orders or rulings were wrong unless there was a clearly incorrect exercise of that discretion. But even if the court did consider there was an incorrect exercise of discretion, this court would now be considering a matter after the event, as it were, instead of before the event. Accordingly, this court would have to consider whether there was any risk that the applicant did in fact have an unfair trial”.

Thus, the second aspect of the test is whether there was a real risk that the trial would be unfair.

22. In the course of the judgment in Nevin, the court reiterated the principles outlined in D. v Director of Public Prosecutions. It also referred to the judgment of the Criminal Division of the English Court of Appeal in R. v West [1996] 2 Cr. App. R. 374. In the passage which follows, there is a striking contrast between the truly sensationalist coverage in the West case and the article criticised in the instant case. In West, Lord Taylor said the following at p. 385 of the report:

"We turn to the press coverage in advance of the trial. There is no doubt that this was extensive and hostile to the Wests. It occurred most fully in two tranches. The first was upon the discovery of the buried bodies. The second followed upon Fred West's suicide. Much of the press coverage was directed at Fred. There were references to 'House of Horrors'. There was criticism of the authorities for failing to stop West's murderous course when he was before the magistrates' court with the applicant in 1973. It is true that there were also reports which were adverse to the applicant, referring to her as an nymphomaniac and a prostitute. But, however lurid the reporting, there can scarcely ever have been a case more calculated to shock the public who were entitled to know the facts. The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd. Moreover, providing the judge effectively warns the jury to act only on the evidence given in court, there is no reason to suppose that they would do otherwise. In Kray [1969] 53 Cr. App. R. 412 at pp. 414 and 415, Lawton J. said:-

'The drama … of a trial almost always has the effect of excluding from recollection that which went before.'

This was reiterated in Young and Coughlan (1976) 63 Cr. App. R. 33 at p. 37. In ex p. The Telegraph Plc (1994) 98 Cr. App. R. 91, 98, [1993] 1 W.L.R. 980, 987, I said:

'a court should credit the jury with the will and ability to abide by the judge's direction to decide the case only on the evidence before them. The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and the nature of a trial is to focus the jury's minds on the evidence put before them rather than on matters outside the courtroom'."

23. In Nevin, having cited this passage with approval, this Court went on to observe:

“There is a big difference between say, a one day trial taking place immediately after adverse publicity and, on the other hand a 40 day trial.”

The similarity in the time-span to the present case is remarkable.

24. There is no doubt that in Rattigan v Director of Public Prosecutions [2008] 4 IR 639, the Supreme Court clearly indicated that, when there was a real and substantial risk of an unfair trial due to either prosecutorial delay and/or adverse pre-trial publicity, which could not be made fair by the appropriate rulings and directions of the trial judge and other circumstances, an application for prohibition of such a trial would be successful.

25. Rattigan was a judicial review. The pre-trial coverage in the Rattigan case could only be described as having been lurid, involving graphic descriptions of the prior criminal activities of the accused and his associates. The factual content of the articles in question was highly prejudicial, and very clearly and repeatedly imputed guilt of criminal activity to the accused.

26. In the recent past, there have been two occasions where this Court has quashed convictions arising from adverse publicity which arose during the trial itself. On both occasions, the court considered that a “real danger” or a “real possibility” existed that the accused person’s right to a jury trial had been breached, due to publicity that could have impacted on the jury. However, the facts of both cases were very different from the instant case. The first involved remarks made extra-judicially by a trial judge relating to the category of case which was actually before him; the second related to background circumstances of witness intimidation, from which a jury was likely to conclude that it was referable to the case they were hearing.

27. In The People (DPP) v Dumbrell (Unreported, Court of Criminal Appeal, 28th July 2010), the trial judge delivered an extra-judicial lecture about sentencing matters and policies in the Irish criminal justice system at a time when he was presiding over a criminal trial. He made a number of observations on sentencing policy in particular categories of cases in the criminal courts. He suggested there was cause for concern at the inadequacy of the sentences imposed, specifically in “knife cases”. An alleged “knife crime” was actually before him at the time. The speech received widespread publicity. This Court saw the interconnection of the trial and the comment as a “key factor”. It referred in its judgment to “the immediacy of the statements to the trial”. Murray C.J. reiterated the general principle that a person coming before the courts has a right to a fair trial. He pointed out that this was not a pious aspiration, but a substantive principle, applicable to every trial. It is a universal principle embedded in the Constitution and, in particular, the Article 38.1 guarantee that “no person shall be tried on any criminal charge save in due course of law”.

28. But the directly material point here was the source and nature of the remarks, delivered during a lecture, which had an “immediacy” to the nature of the case then pending before the judge who had the duty both to be unbiased and to be perceived as such.

29. In The People (DPP) v Darren Duff [2010] 3 I.R. 412, a newspaper article was printed which contained assertions about acts of witness intimidation relating to a criminal trial. Such intimidation was actually a feature of the appellant’s then current trial. Many witnesses had refused to testify for various reasons. A discharge of the jury was sought on the grounds that there was a real danger that the information contained in the article would make its way to a juror, and that such juror might link the intimidation referred to in the article with that which had appeared to have been occurring in the trial itself. The trial judge refused to discharge the jury.

30. However, this Court quashed the appellant’s conviction. It found the trial judge’s decision to be erroneous on the basis that “a real danger” existed that such connection would be made and that a discharge application should have been granted. It held that in the light of the contents of the article, there was really only one course open to the learned trial judge. At para. 6 of the judgment, the court held:

“The basis of this was that once a link was made in the minds of the jury, between the article and the material mentioned in the article and the trial before them, it would have in reality have been impossible for them, and any normal member of the jury to exclude the matter from his or her mind during the balance of the trial. The court accepts that that is so in the particular circumstances of this case”.

The court went on to point out that no directions to the jury could have corrected the “ill effects” of the publicity on the particular facts.

31. Counsel for the appellant contends that in the instant case the learned trial judge failed to assess the context in which the article was published and the fact that the trial had been ongoing for some days by the time this occurred. However, a corollary of this is that there remained in excess of 30 more days of the trial prior to the jury deliberating on its verdict. Was there any substantive factual material published in the article which was, by then, unavailable to the jury, albeit remaining to be proved? There was of course the usage of the pejorative term “coke heads”. It said the appellant was complicit in the importation attempt. But this was not a situation where there was extensive, purportedly factual, publication as to the prior activities of the accused or his associates. By way of contrast to Rattigan, it is not asserted the appellant here had been associated with a series of gangland murders and contract killings. By way of distinction with Dumbrell, this was not a situation where the subject matter of the trial had been one of the questions addressed by a trial judge in a lecture made during the pendency of a trial. This is by way of contrast to the position in The People (DPP) v Laide and Ryan [2005] 1 I.R. 209, where extensive rulings, warnings and directions to the jury given by the trial judge were deemed sufficient to obviate the risks of an unfair trial.

32. Among the factors which can be discerned from the authorities, therefore, are:

(a) the nature, extent and duration of the coverage;

(b) the extent to which such coverage is likely to be prejudicial to an accused;

(d) the nature of the judge’s warnings;

(e) the actual prominence of the offending coverage and the likelihood that it was read;

(f) the source or author of the prejudicial material, and whether that source might be seen as influential or authoritative;

(g) the extent to which the publication concerns matters not made known to the jury and which are not in evidence in the case; and

(h) any evidence that the jury actually may have seen, or been aware of the coverage.

This is of course a non-exhaustive list. All of the above will be assessed by the judge in determining whether there is a real risk of an unfair trial. How these criteria are weighed will be an issue for the trial judge. Only when a trial judge has clearly erred in the exercise of his or her discretion will this Court interfere.

33. The coverage here was very limited. It was not substantiated. It was a mere comment. It took place on one day only – at a weekend. It must be accepted that it contained a degree of prejudicial comment, but this was on a side-bar column on an opinion page, buried deep in the pages of the newspaper.

34. This was an opinion piece by a journalist containing some elements of adjectival material which could be referred to as being no more than vulgar abuse, with the exception of the two factors identified. It cannot be said that the jury, even if they had read the article had been informed of any truly significant material which was not before them. The article contained no more than an empty expression of opinion. This was not part of some media “feeding frenzy”. It was not one of a relentless series of colour pieces. The author was not a judge, who must be perceived to be unbiased. There was no coverage of the appellant’s previous criminal activities. Finally, there is actually no evidential basis for a conclusion that any juror had actually read, still less been influenced by, the article.

35. By way of contrast, when later in the trial a juror was sent material by e-mail which had a bearing on the trial, she immediately volunteered this information and was discharged from her duties. This can only have been on the basis of the judge’s warnings, which, thus, seen empirically, suggests that they have been effective. This court has not been persuaded that there was a real risk that the trial was unfair.

36. There is no question here of prejudicial headlines or content such as those arose in Rattigan, Nevin, or more spectacularly, in West and Taylor. Additionally, there is the question of a “fade factor”. The publicity took place on the 1st June, 2008. The decision of the jury was fully seven weeks later. This was, therefore, pre-eminently a “forty day trial”. This was a situation in which a trial judge enjoyed a significant discretion. This Court should not interfere unless the ruling was clearly wrong. In the view of this court, having regard to the factors in the balance, there is no indication that the manner in which the trial judge exercised the discretion here was “clearly wrong”. In fact, all the indicators are to the contrary. Therefore, the appeal on this point must fail.

The admissibility of evidence derived from a search warrant issued by Peace Commissioner, Sheila Roycroft

37. A further issue raised by the appellant concerns the admissibility of evidence elicited as a result of a search carried out on foot of search warrants issued pursuant to s. 26 of the Misuse of Drugs Act, as amended. A number of search warrants were the subject of challenge in a voir dire procedure. One related to a warrant authorising the search of a house in Letter West.

38. Counsel for appellant contends that, upon examination of the relevant witnesses in the voir dire, there were certain differences and discrepancies between the information which the Gardaí put forward to apply for the warrants, and the information that had been provided or was available to the Gardaí from members of the public on the 2nd and 3rd July, 2007. Prior to considering the material warrant, it is instructive to consider how the judge dealt with another warrant.

The Letter West warrant
39. On the 2nd July, 2007, the Gardaí investigating the offences sought warrants in relation to two properties owned by Martin Walder, both in west Cork. It was thought, wrongly, that Mr Walder was the same man as one of the accused, Martin Wanden. Mr Walder was entirely uninvolved in the case, or in the events in question. These warrants were granted by Vincent Hurley, a peace commissioner. These were ruled out by the learned trial judge precisely on the basis of his findings of fact that the peace commissioner in question had not complied with the requirements laid down in Byrne v Grey [1988] 1 I.R. 31, to which we now turn.

40. Byrne v Grey established that, for a trial judge to admit a search warrant in evidence it would be necessary to establish:

(a) that there had been sufficient evidence before the peace commissioner under which he could be satisfied that the suspicions of the Gardaí in seeking the warrant were reasonable; and

(b) that such peace commissioner had satisfied himself or herself that the evidence and facts before him or her constituted reasonable grounds for suspecting that a controlled drug was in the possession of the occupier of those premises, on the premises in question (see also Simple Imports Ltd v Commissioners of Inland Revenue [2000] 2 I.R 243).

These are essentially factual matters to be determined by the trial judge in a voir dire. The judge held that the peace commissioner had not complied with these requirements, and had essentially engaged in a “rubber stamping” exercise.

41. Findings of fact made by a trial court, which has had the opportunity of seeing, hearing and evaluating the credibility of witnesses cannot be reversed by this Court unless such findings were “so clearly against the weight of the testimony as to amount to a manifest defeat of justice”. (See The SS “Gairloch”, Aberdeen Glen Line Steamship Co. v Macken [1899] 2 I.R. 1, quoted with approval by this Court per O’Higgins C.J. in The People (DPP) v Madden [1977] I.R. 336 at 339. See also the observations of this Court in The People (DPP) v Kelly [2005] IECCA 50, as to the applicability of the principles in Hay v O’Grady [1992] 1 IR 210 to this Court.)

42. The other warrant, that in issue here, was issued pursuant to s. 26 of the Misuse of Drugs Act. Counsel for the appellant herein required the peace commissioner who signed the warrant, Mrs. Sheila Roycroft, to be in court to testify. As the law stands, this was the appellant’s entitlement (see The People (DPP) v Owens [1999] 2 IR 16).

43. The information sworn before Mrs. Roycroft was as follows:

“…the grounds for so suspecting is as follows, on the morning of 2.7.2007 Gardaí received a call that a number of suspicious packages had been found at sea in the Goleen area. As a result of this information, an investigation was launched into this. Gardaí ascertained that on this morning two men had been washed ashore close by and taken to Bantry Hospital. A rib was also located capsized close by with a number of packages surrounding it. In the course of the investigation, it was ascertained that a number of other men believed to be English were also involved. Another rib was discovered that might have been used by these people. During a search in Letter West it was established that a number of men were staying in the apartment at Letter West, but that they also had another premises nearby. This other apartment was located at the home of Dan McCarthy at Farnmanagh (sic) and there was evidence to link the people from Letter West to Farnmanagh (sic) the name given on the leasing of both premises was Joe Doherty and a vehicle had also been linked to both premises. The occupants of both premises are believed to be English.”

44. Mrs. Roycroft testified that through radio and television reports, she had been aware of the events which had taken place at Dunlough Bay. She knew the applying garda (Detective Garda Keane), and felt he was a truthful and reliable person. The information was read out and sworn before her. She knew the McCarthys (who were persons mentioned in the information) and the Gardaí had assured her that they were not involved. She was satisfied from what they had told her that she should issue the warrant.

45. The extent of the trial judge’s scrutiny of the issue is revealed by his treatment of the other warrant in the case. There, the trial judge held that the results of the warrant were inadmissible in evidence because, as a matter of fact, he was not satisfied that the peace commissioner in question had carried out his task with an “independent mind”, nor had he carried out any enquiry at the time the information was sworn before him (see Byrne v Grey). The judge held the evidence of this other peace commissioner indicated that he had exercised his function simply by way of stamping or issuing the warrant rather than by exercising any discretion. Having ruled on that warrant, he then came to consider the warrant issued by Mrs. Sheila Roycroft. The contrast is instructive. He held as follows:

“Now coming on from that, I am satisfied that Garda Shanley presented on the 3rd July, a proper information duly sworn before Mrs. Roycroft. Now, what I have to ascertain is did Mrs. Roycroft, then a properly appointed peace commissioner for the Cork county area, did she exercise a sufficient and proper enquiry of the facts that were then sworn to before her? There are a number of grounds set out and it is abundantly clear from her evidence that she carried out her own enquiry. She was not as she has said herself, going to give a warrant in every case; she would and could question them on occasions. She listened to what they (the Gardaí) had to say. She considered it. She said to me ‘If I thought they were not telling me the truth, I wouldn’t issue the warrant’. So I think this woman was genuine and convincing.”

46. The judge then ruled:

“Now in relation to the information itself, I see no grounds on it for striking down the warrant and I do not see anything in the sworn information which could be termed as ‘the fruit of the poisoned tree’ or which would infect the second warrant by anything that happened from the first. Accordingly, I see no reason to strike down the second warrant. I find no defect as to format or substance in either warrant.”

47. This court would observe that the alleged inconsistencies in this information were in no way central to its purpose. It was submitted that the sworn information was wrong and misleading on evidential issues. However, there is no suggestion here that there was any mala fides on the part of the Gardai in providing the information to Mrs. Roycroft. Counsel for the appellant, quite properly, did not go so far as to say that the warrant issued by Mrs. Roycroft, or the information provided for it, was in any sense a “colourable device”. In fact, when analysed, what in fact is alleged, is that just two phrases, relating to when the search at Letter West had been carried out, and who had been the source of certain information furnished to An Garda Síochána, were incorrect. But this is as far as the appellant’s case goes. A great deal of detailed evidence from the Gardai was considered by the trial judge. He concluded there was no indication that they were telling untruths. He was entitled to come to this conclusion on the evidence. It is unnecessary for this court to explore this evidence in the same detail, unless it was shown there was no basis for his findings or that his findings were so clearly against the weight of evidence as to amount to a manifest defeat of justice.

48. It is not suggested the Gardai engaged in any deliberate or conscious act of misleading the peace commissioner. The two impugned parts of the information were entirely extraneous to its central import. The learned trial judge found that the peace commissioner herself had been “genuine and convincing” in giving evidence. He did not see anything in the sworn information which could be termed as “the fruit of the poison tree”, or which would infect that warrant. He held that there was no defect as to format or substance in either warrant.

49. In the view of this court, these were findings that the learned trial judge was entitled to make, both as to facts and inferences from fact. This is not a situation where the findings of the trial judge were against the weight of the testimony. They cannot be said to amount to a manifest defeat of justice (see Madden and Kelly, referred to above). This court would not interfere with such findings in the absence of demonstrable mala fides, or some clear indication that what the trial judge held was clearly against the weight of the testimony, so as to amount to a defeat of justice. This ground of appeal must also fail.

50. The court would pause to point out here that even if the evidence adduced as a result of the search warrant had been ruled out, there would have remained a substantial amount of other circumstantial evidence against the appellant.

The trial judge’s ruling as to the admissibility of DNA evidence
51. The next point advanced by the appellant is that the trial judge erred in the admission of DNA evidence relating to the appellant which, it is now contended was not gathered, stored, transported or handled in accordance with best international practice.

52. The relevant DNA evidence which featured in the trial related to what is called a “flossing sword” found in a green LandRover, found abandoned at Dunlough Bay on the 2nd July, 2007. (A flossing sword is an implement, one end of which is bladed in the form of a tooth pick, the other end of which is semi-circular, with dental floss spanning the diameter of that semi-circle.) The prosecution’s case was that this implement had been retrieved from the LandRover, and a DNA sample had been extracted therefrom which matched a sample provided by the appellant when he was in custody. Other items in the LandRover were linked to a co-accused, Joseph Daly, such as his fingerprint found on a map under the sun visor in the LandRover itself. The appellant submits here that there was a failure on the part of the investigating Gardai in relation to the retrieval and sealing of the flossing sword, and that the trial judge erred in not ruling out the evidence. It is important here to follow the chain of evidence as the issue is whether it could be said there was any opportunity for contamination of the sample, intentionally or otherwise.

53. Garda Alan Bell, a qualified crime scene examiner, carried out a forensic examination of this LandRover. He gave evidence in the voir dire to the effect that he observed the flossing sword on the floor of the vehicle and photographed it. He recovered it using a plastic tweezers, placed it in an envelope, and thereafter put a number of exhibits into the boot of his car and brought them to Kanturk. The Garda admitted that the envelope into which the implement had been placed had not been sealed. It is said that the envelope was still not sealed when it was handed over to another member, a Garda Butler, on the 4th July. Following that, Garda Butler brought it to the Forensic Science Laboratory in October 2007, and it was tested there by Dr. Geraldine O’Donnell, where it was found to match the DNA sample provided by the appellant.

54. Dr. O’Donnell testified that she found that the implement had been used, so she decided to test it. She found that there was only one DNA profile on it. The witness accepted that she could not say how the DNA had been placed on the dental floss. She agreed that it would be best practice that exhibits which were received into the laboratory should be sealed when received.

55. Garda Bell testified that he wore appropriate gloves when handling the flossing sword. Dr. O’Donnell extracted the DNA profile of the appellant from the “dental floss end” of the flossing sword. She testified that this was a pure DNA sample which did not contain any other person’s DNA; it was not contaminated by the DNA of any other person.

56. Dr. Hodge, an expert witness called on behalf of the appellant, did not contest the nature of the sample. He accepted that the DNA sample was uncontaminated. He did testify that the practice in the United Kingdom is that if a package was received in an “open state”, (i.e. with the envelope unsealed) at the United Kingdom Forensic Science Laboratory, it would be returned to the police. He said that any such piece of evidence should be sealed for three reasons, (a) that the evidence could be lost; (b) that accidental contamination could occur; or (c) that the exhibit might be tampered with.

57. However, in cross-examination, Dr. Hodge agreed that Dr. O’Donnell was correct in saying that there was no evidence of cross-contamination in the sample. He contended nonetheless that one could not exclude the possiblity that the exhibit might have been tampered with because the package had never been sealed. Aside from this, he had no difficulty with Dr. O’Donnell’s evidence.

58. It was accepted by the prosecution, and indeed by the trial judge, that international best practice indicates that DNA evidence should be preserved in sealed packages in order to prevent cross-contamination or tampering by any person with forensic scientific awareness.

59. However, as matters evolved, the only issue which actually arose for determination by the judge was a very narrow one. It was whether there could have been any deliberate tampering with the sample by somebody with a forensic science awareness. Dr. Hodge was cross-examined on this issue. The appellant’s expert was asked how the flossing sword could be tampered with. He opinioned that the floss on the flossing sword could be rubbed with a control swab taken from the appellant. However, he accepted that if the control swab, which was a buccal swab taken from the appellant, had been sealed immediately (which had not been disputed), then that would rule out the possiblity of that form of tampering having occurred.

60. In the voir dire, the learned judge ruled, on the basis of the evidence before him, that there was no question on the findings of there having been any casual cross-contamination. The only issue for him to determine, therefore, was whether there had been deliberate tampering. He held that this possibility had been negatived beyond a reasonable doubt. Tampering could only have occurred if it had been caused by somebody with both the forensic knowledge, and the opportunity to influence the outcome. The evidence precluded this possibility. On the one hand, there was the envelope containing the flossing sword. On the other hand, there was the sealed envelope containg the buccal swab. He was unable to fathom, therefore, where tampering could have come from. He ruled that the proposition that there had been any contamination was an unrealistic one. The ruling was based on factual findings as to what had occurred and the judge’s inferences from the testimony from the experts on both sides.

61. The appellant now submits that the learned trial judge wrongly placed an onus on the accused to demonstrate irregularity. It is of course completely true that the onus of proof at all stages remains on the prosecution. However, in the view of the court, the point is misconceived. The substance of what the judge was saying was that the prosecution had negatived to the requisite standard the possibility of there having been any risk of contamination. This had been ruled out beyond a reasonable doubt in the judge’s mind. Thus, the evidence was admissable. There is no indication that the trial judge erred in so holding.

The admission into evidence of the appellant having used a passport in the name of one “Andrew Woodcraft”
62. The trial judge admitted into evidence testimony that the appellant had used a passport in the name of Andrew Woodcraft, leaving Portugal and in his journey to Ireland. The evidence was to the effect that he had entered this country under the name of Andrew Woodcraft on a flight from Portugal to Dublin with his wife, Karen Wharrie. The chain of evidence established also that a man by the name of Andrew Woodcraft attended a dentist in Wexford and a dental card from that dentist was found in the area of the headland at Dunlough Bay, where the bales of cocaine were found in the water. Tablets, purchased on foot of a prescription issued by that dentist, were found in a bedroom of the Harbour View Hotel in Schull, along with the abandoned luggage left by the appellant and others involved in the enterprise. These all amounted to pieces of circumstantial evidence tending to link the appellant to the locus of Dunlough Bay at the relevant time. Other persons also involved in the undertaking also used false passports as a means of deception.

63. At the trial, counsel for the appellant objected to this evidence on two principal grounds. These were, first, that it was unfair to introduce evidence of the appellant’s entry into the State on this false passport when there was another reason why he might have been done this. This was that the appellant had been released on licence in the United Kingdom after a murder conviction and sentence. This prior conviction and sentence, however, was not mentioned in the presence of the jury. This cannot be said to have been the appellant’s strongest point. The court rejects this submission for the same reason as set out below; the evidence was probative not prejudicial. It tended to establish the link between the appellant and the place and time of the offence, and his links with others engaged in the crime.

64. It was further submitted that it was not necessary to adduce the evidence to prove the contention for which it was introduced. Counsel at the trial submitted that there was evidence of a calling card which the prosecution could have introduced to the effect that a person named “Mr. Woodcraft” had attended a dentist in Wexford. There was CCTV of the appellant in the Harbour Hotel in Schull. Counsel at the trial submitted that the link between the appellant and the calling card which was found of the Wexford Dental Practice, which had been attended by Mr. Woodcraft, could have been established without reference to the passport at all. It is said it was not necessary for the prosecution to go further than proving that a person named Woodcraft attended the Wexford dentist and that items associated with that dentist, including the prescription and card, could be found at locations associated with the appellant. It is suggested that the introduction of the evidence about the false passport went further than was necessary and led to an implication that the appellant was of a bad character, where there was no evidential basis for introducing such evidence, and that this was “bad character” evidence as it tended to show the appellant had committed a falsehood and criminal offence in obtaining a passport under a false name.

65. This submission, repeated in this appeal, faces an immediate difficulty on the facts. The appellant never accepted at any stage that he and Andrew Woodcraft were one and the same person. He did not testify at the trial. That was his entitlement. But the evidence showed the car which the appellant drove, and which was originally hired in his wife’s name, contained passports relating to other persons involved in the enterprise, including the real passport of Gerard Hagan, who had arrived on the drugs boat “Lucky Day” after crossing the Atlantic on a false passport in the name of Gerard O’Leary. Another co-accused, Martin Wanden, was also in possession of two false passports. The prosecution contend that the utilisation of false passports was, therefore, part of the modus operandi of those who were involved together in the enterprise.

66. The court is of the view that the trial judge was correct in holding that the prosecution was entitled to prove the utilisation of a false passport by the appellant in the name of Andrew Woodcraft to make the link between Dunlough Bay and the appellant, in order to prove his presence there. The evidence was probative of a matter requiring to be established as part of the chain of evidence. The consequence was that the jury could, if they wished, draw an inference from that piece of circumstantial evidence which, linked with other such pieces of circumstantial evidence, placed the appellant as acting along with his co-conspirators in the enterprise. In the view of the court, this piece of evidence cannot be seen in isolation from other pieces of circumstantial evidence tending to link the appellant to the enterprise. The purpose of introducing the evidence was to link various pieces of circumstantial evidence together from which the jury might infer guilt. These pieces of evidence were to be looked at in their totality rather than in isolation. The evidence was probative. There is no indication of error here.

67. The court turns next to the contention that CCTV evidence had been admitted in error into the case.

Was CCTV footage shown to the jury in error?
68. In the course of the trial, a substantial quantity of CCTV material was adduced in evidence. This showed the appellant and others involved walking on a street in Blarney (but not together). It was contended this footage, showed the appellant leaving the Harbour Hotel in Schull, and getting in a red LandRover which was parked outside. As to the latter, what was to be shown was discussed in the absence of the jury. An agreement was reached about the “Schull” footage which would be played in the presence of the jury. The judge ruled on the question. The prosecution provided a list of the CCTV footage to be shown to the jury. Included in the list was CCTV footage from the 1st July, 2007, at 20.05 hours at the Harbour View Hotel, Schull, Co. Cork, which was said to show:

“1st July 2007, Harbour View, into red jeep. Perry Wharrie. Sunglasses man.”

69. Counsel for the appellant places great emphasis on the fact the commencement time for this CCTV footage was said to be 20.05 hours on the 1st July, and not earlier. During requisitions on the thirty ninth day of the trial, the prosecution contended that CCTV evidence showed the appellant drive off in a red jeep or LandRover, which had been parked outside the Harbour Hotel in Schull. It was said that the footage, in fact, did not show the appellant at all. The case now made is that the CCTV footage which was actually shown to the jury on day 41 of the trial commenced from 19.54 hours on the 1st July, 2007. It is said that such footage had not been shown to the jury earlier during the course of the trial. However, counsel for the prosecution who appeared at the trial says that this footage was actually shown to the jury previously. The contention made by the appellant’s present legal team is an assertion which, while of course deserving respect, is not supported by the transcript or by any evidence.

70. It is said that the “additional footage” claimed to have been shown on the first occasion on the forty-first day of the trial showed a number of persons moving towards and about the red LandRover, and that this footage commences at 20.00 hours, not 20.05 hours. Counsel for the appellant submits that the trial judge was mistaken in holding that the disputed CCTV footage included the eleven minutes of footage shown to him during the course of the charge and requisition phase of case. It is submitted that the trial judge erred in deciding he had seen such footage previously during the trial. Two points immediately emerge. First, the judge ruled as a fact that the footage had been shown to the jury. That is sufficient in the absence of any clear evidence to show that his ruling was against the weight of the evidence. Second, whether or not the footage was shown, the point is ultimately entirely academic for reasons now explained.

71. This court viewed CCTV footage on repeated occasions. If there was any question as to whether the footage had been shown at the trial, it is an empty point. This court’s repeated viewings of the disputed CCTV footage shows figures whose identities are utterly unclear. The identity of any person in the vicinity of the red LandRover is not clearly discernable. Anything said about the identity of the man getting into the red LandRover could only be conjecture, which could not have possibly have influenced any jury. It is true that the LandRover is driven off from a parked position across the road from the Harbour Hotel. But the driver cannot be recognised. The fact that there was some form of activity around the vehicle proves nothing. Having had the opportunity of reviewing the footage on many occasions, we conclude there could be no potential prejudice to the appellant, even if (per contra the judge’s ruling on the matter) the footage had not been shown at an earlier stage of the trial itself.

Issues arising from the prosecution’s opening speech
72. It is necessary now to turn to issues said to arise from the opening speech by counsel for the prosecution. This case was complex. It was largely based on a degree of circumstantial evidence against the appellant. During the opening speech, counsel for the prosecution referred to a number of matters which would be proved in relation to the appellant. In overall terms, it was asserted that the prosecution would prove that the appellant was part of a joint enterprise for the sale or supply of a large quantity of drugs. Counsel outlined the role of the appellant in the enterprise. He made reference to the following, amongst a range of other matters:

(a) the presence of various items in the boot of a Volkswagen Passat car being used by the appellant, including a passport for Gerard Hagan and a notebook which had the number of a Steve Whitsy mobile phone on it, thus establishing “interconnections”;

(b) that masking tape found in the boot of this car was similar to other tape found in other locations connected with the enterprise and other co-accused; and

(c) a tin of black spray paint said to have been purchased in a shop named Deevys in Wexford on the 19th June when the appellant was in Wexford.

73. There is no dispute between the appellant and the respondent in this appeal that evidence was adduced to prove that these items were in a bag in the boot of the car. However, the appellant’s fingerprint was on only one item - the notebook. It is accepted that the paint was bought in Waterford, and not in Wexford.

74. Reference was also made in the opening speech to a phone number contained in the notebook found in the Volkswagen Passat. It was contended that this phone number was used by the appellant. References were made to communications being made by this phone to other phones, including a telephone owned by a Stephen Whitsy, and text messages purportedly in pursuance of the criminal enterprise are also said to have been made. It was alleged that this phone was used by the appellant to send a text message “at Alpha, heading to Brava”.

75. It is now agreed that there was no evidence in the trial that the appellant used the phone number contained in the notebook in the Passat car and/or other specific phone numbers, nor that he had sent any text messages including the message identified above.

76. Counsel referred to a piece of paper containing geographical grid references for a weather buoy, also found in a bag belonging to Stephen Brown in the boot of the Passat. It was contended that the grid references in a GPS corresponded in some respects to co-ordinates on this piece of paper. There was no evidence in the trial that the appellant was connected to the piece of paper, save that this was found in a wallet owned by Stephen Brown, in the Passat vehicle which the appellant had been driving. It is also now accepted that the appellant’s fingerprints were not on the piece of paper.

77. It was claimed there was voluminous CCTV footage of the individuals involved in the enterprise being together at various times. It is now not in dispute that there was such CCTV footage, but that this could not be described as being voluminous as regards the appellant.

78. Prosecution counsel claimed that the green LandRover had a mobile phone in it which was purchased by a Debbie Samson in Wexford on the 14th June, 2007. It was alleged that this mobile phone was in use either by the appellant, or for his benefit; and that the phone was in contact with a mobile phone in the possession of Steve Whitsy, found in a “peli box” floating in the sea, and, thus, established an alleged link with Martin Wanden. It is now agreed that there was no evidence about the Debbie Samson telephone at the trial.

79. It was alleged that other people allegedly involved in the scheme of importation (Michael Daly, Peter Walkey, and Charles Golding) all held false passports. It is now agreed that no evidence about these persons was led at the trial. It was said that Stephen Brown offloaded the drugs from the “Lucky Day” and was on the RIB. It is accepted that there was no evidence about this at the trial.

80. But the question arises: to what extent was any of this material prejudicial to the appellant? Did the trial judge take steps to warn the jury about material not proved in evidence?

81. In fact he did. In his charge, the trial judge referred to the fact that there had been mention of a number of other persons in the prosecution opening speech and recited a list of names. He made clear to the jury that none of this mattered as none of those people were before the court.

82. It has been frequently pointed out that where inadmissable material is opened during the prosecution’s opening speech, it is within the trial judge’s discretion as to whether to discharge the jury if the circumstances warrant it. It is not suggested that in the instant case, counsel for the prosecution specifically mentioned any matter which had been the subject of an agreement to exclude between himself and counsel for the appellant. Some form of “road map” was necessary for the jury. There was a large degree of circumstantial evidence against all of the accused. It was not possible to anticipate precisely what material might be ruled out or for any number of reasons might not be proved. The admissability of much of the circumstantial evidence was later the subject of a series of applications to, and rulings by, the learned trial judge.

83. It is well established that counsel must exercise care in an opening statement to avoid reference to any inadmissable evidence or, evidence the admissability of which might be challenged by the defence. If evidence is subsequently ruled inadmissable, the fact that the prosecution has disclosed its existence in the opening summary may, on occasion, result in the jury being discharged and a new trial being ordered. But this hinges on the degree of prejudice (if any) in the content of the speech. The extent to which there is prejudice is, in the first instance, a matter for the trial judge in the context of the case as a whole, having regard to the evidence which is actually adduced. Here, a judge must exercise his or her discretion judicially and to determine the extent to which there has been or may be actual prejudice.

84. It cannot be said that this unproved material was, in its context, prejudicial to the extent that the very mention of it constituted an injustice and placed a fair trial at risk. Such instances may occasionally arise. But this was not such a case.

85. In a ruling on the matter, the learned trial judge pointed out that counsel for the prosecution had specifically stated in his opening speech that matters that he was going to set out therein were not evidence, and if such matters were not proved then it was to be ignored or disregarded. The learned trial judge pointed out, as was the case, that the nature of the evidence was fragmentary. He stated that there are “pieces of evidence here, and fragments of evidence there. We spent weeks at the trial during which bags of evidence were passed over and there is a mountain of evidence to be considered by the jury”.

86. Having considered the nature and extent of the material which had been admitted in evidence, the judge ruled that it was unreal to conclude that the jury, in grappling with this “mountain”, would be overborne in their considerations by something they may or may not have picked up many, many days previously. The judge pointed out the nature of the evidence which had not been proved. Much of this related to telephone communication between the appellant and persons who were not before the court, or traffic from mobile phones to other mobile phones. He had difficulty in alternatively accepting any validity of the submission made by counsel for the accused in the application. One has the impression that the judge considered that, at its highest, the disputed statements in the opening speech was simply left “up in the air”. At the end of the case, the judge ruled:

“The jury in this case will be directed to base their conclusions on the evidence. It will be pointed out to them, time and time again, what was evidence. For example, even if one forgets about the opening they will be told what the judge says is not evidence and cannot be considered. What the barristers say, even in closing, which is a much closer event to their consideration is not evidence and they will be told only to assess the relevant evidence and to apply it in accordance with the correct standards of proof which the court will give them”.

87. He concluded:

“I believe that they, the jury, will be able to confine themselves to this and will not in anyway be influenced or directed by extraneous or non-proven matters. I believe that the jury are, and should be regarded as, being able to distinguish what is evidence from what is not”.

88. In the circumstances, it appears to this court that the trial judge was well placed to exercise his discretion, having had an overview of the totality of the evidence which had been proved in court, and that which had not been. He was well placed also to determine whether matters which had been mentioned in the prosecution opening speech were actually prejudicial, and the extent to which a jury might even possibly have been prejudiced. He appears to this court to have exercised his discretion appropriately, taking into account relevant factors, and discounting those which were not. It must also be borne in mind that there is a degree of artificiality in relying on matters, said to have been mentioned in the prosecution’s opening speech, in an application for a direction made some 29 days later. In the view of the court, it is unreal to think that such matters would have remained in the minds of any juror with such a degree of specificity as to give rise to any apprehension of prejudice. There is no indication of clear error. On the facts, this ground of appeal fails.

Did the evidence establish the offence?
89. The court turns next to substantive issues regarding the sufficiency of the evidence to constitute the offence. It is said that the learned trial judge failed to direct a “not guilty” verdict for the appliant at the end of the prosecution case on the basis that, (a) there was no evidence to establish “possession”, and (b) there was no evidence that the appellant was part of a joint enterprise. The court would point out here that what is said immediately below relates also to the issue addressed under the next heading, viz. whether the judge sufficiently addressed the jury as to the law regarding possession of a controlled drug.

90. The relevant principles for an application to direct a verdict of not guilty are well known. They derive from the decision of R v Galbraith [1981] 1 W.L.R. 1039; People (DPP) v Barnwell (Unreported, Central Criminal Court, 24th January 1997); People (DPP) v Lacey (Unreported, Court of Criminal Appeal, 3rd July 2002) and a range of other cases.

91. Insofar as is material to this case, in Galbraith, the Court of Appeal in England held that when a submission of “no case” is made, the case is to be stopped when there was no evidence that the person charged had committed the crime alleged, and is also to be stopped if the evidence was tenuous and the judge concludes that the prosecution’s evidence, taken at its highest was such that a properly directed jury could not properly convict on it. But, where the prosecution’s evidence is such that its strength or weakness depended on the view to be taken of the reliability of a witness or other matters which are, generally speaking, within the province of a jury, and one possible view of the facts was that there is evidence on which they could properly conclude that the person charged is guilty, the matter was to be tried by the jury, not the judge. Borderline cases were in the judge’s discretion.

92. The judge does, however, have a residual duty to consider whether the evidence is inherently weak or tenuous. If it is so weak that no reasonable jury properly directed could convict upon it, then a submission of no case to answer should be upheld. Weaknesses may arise in the sheer improbability of what the witness is saying, from internal inconsistencies in the evidence or from its being of doubtful value, especially in identification cases.

93. However, it cannot be too clearly stated that the judge's obligation to stop the case is one, which is concerned primarily only with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the function of the judge to weigh the evidence, to decide who is telling the truth, or to stop the case merely because he or she thinks the witness is lying. To do that is to usurp the function of the jury.

94. Counsel for the appellant submits that there was no evidence in this case that the appellant had been in physical possession of the drugs in question. Instead, it is contended, the only means by which possession could be held to arise was via a common design to possess the drugs in question. It is said that the prosecution could not establish that the appellant had "control" over the drugs, as so defined in law, and as a consequence, was entitled to a direction.

95. Section 1(2) of the Misuse of Drugs Act, 1977 defines one person’s possession through another person in the following way:-

"For the purposes of this Act any controlled drug … of which a person has control and which is in the custody of another who is either under the person's control or, though not under the person's control, acts on his behalf, whether as an agent or otherwise, shall be regarded as being in the possession of that person …"

96. It is said now that there was no evidence of telecommunication between the appellant and any co-accused, or the Lucky Day’s satellite phone around the time of the offence; that there was no evidence that the appellant had any linkage with a blue LandRover used to transport RIBs into this State beforehand. It is claimed that there was no evidence to show that the appellant had any involvement in preparation for the importation, such as the purchase of phones and boat equipment including global positioning equipment. It is asserted that there was no evidence the appellant had involvement with the purchase, registration or insuring of any of the three LandRovers relating to the criminal enterprise, nor that the appellant was involved in events, some two weeks previously, on the 15th June, 2007, when, the prosecution alleged that, a co-accused, Joseph Daly, was present when a RIB was parked overnight in Bantry sailing club.

97. Counsel for the appellant lays emphasis on the fact that much of the appellant's activities around the relevant time involved going to dentists in two locations, and paying a visit to Blarney Castle. It is said that the findings of belongings, said to be the appellant's, at a house in Farranamanagh were not probative of the charges against him.

98. For the purpose of this judgment, it is unnecessary to rehearse all the evidence against the appellant. It will be sufficient to identify the following.

99. First, there was evidence that the appellant, like a number of others engaged in the enterprise, had used a false passport. He used this for travelling to the State and entry into the State.

100. Second, there was evidence which put the appellant on the headland at Dunlough Bay early in the morning of the drugs run at a point overlooking the potential reception area. This evidence took a number of forms including prescriptions and dentists forms found there, albeit some furnished in the name of Andrew Woodcraft, the appellant’s alias. There was also the DNA evidence obtained from the floor of the green LandRover, found at the scene.

101. Third, there were the remarkable circumstances in which the appellant and Joseph Daly removed themselves from the scene when it might be thought normal human instincts would have been concern as to the fate of the man in the water.

102. Fourth, there was the evidence obtained from the Farranamanagh house where property and material identifiably belonging to or connected with the appellant was found, including the rental agreement for the Passat car. The gardaí also found the seating which had been removed from the drugs RIB at the same location.

103. Fifth, there were the items found in the boot of the Passat car, which had been hired by Karen Wharrie, the appellant’s wife. It is true that some smaller items, enumerated below, were found in a bag belonging to Stephen Brown. These included a passport in the name of Gerard Hagan, also known as Gerard O’Leary, who had emerged wet and cold from the sea and called to the house owned by the O’Donovan family in Dunlough Bay. This man had crossed the Atlantic in the “Lucky Day”. A notebook was also found in Stephen Brown’s bag. But the appellant’s fingerprint was on the notebook. The notebook also contained a number of references to navigational way points in the Atlantic Ocean. The bag also contained key cards for three rooms in the Harbour View Hotel, Schull, where the appellant had abandoned his luggage. The gardaí also found black spray paint and masking tape in the boot of the Passat. This was said to match material used for obscuring the windows of the LandRovers.

104. Sixth, there was CCTV footage which while not conclusive, put the appellant in the same locations at the same time as (on one occasion) Joseph Daly and (on another occasion) Martin Wanden.

105. It is now contended that none of this can be assessed as evidence of “possession” of the drugs because, at the relevant time, the bales were not in anybody's possession, whether actual, constructive or otherwise, as they were in the water. In the view of this court, even if only part of this evidence was accepted, there was more than sufficient material for the case to go to the jury. It would have been wrong for the judge to withdraw the case from the jury, as to do so would have been to usurp the jury's function. This was not in fact, even a “borderline case”. Even had it been such a case, the decision on whether the case should have gone to the jury was clearly a matter within the trial judge’s discretion.

106. Taking into account all the circumstances linking the appellant to the other accused, including those who had actual possession of the drugs in the RIB, it is the view of this court that there was sufficient evidence, (a) to link the appellant with the importation enterprise, and (b) to link the appellant with those who were designated to receive the drugs when imported.

107. Counsel for the appellant contended in this appeal that s. 1(2) of the Act of 1977 is built on the concept of control and that any imputation of a “joint enterprise” or “common design” in relation to possession of illegal drugs is based on the notion that a person has custody of the drugs in question, for, or on behalf of, others who are in a position to exercise control in relation to the drugs in some form or another.

108. The court does not accept that submission. The provision in question specifically provides for a situation where an unlawful drug, though not immediately under a person's control, is within the control of another who is acting on the accused's behalf, whether as an agent or otherwise. It is quite possible for a person to have control over an object but not to be physically in possession of it. Constructive possession can satisfy the statutory offence of possession of a drug. In principle, possession is a criminal offence to which the rules of criminal law applicable to other offences apply. It is, therefore, possible for two or more persons to engage in a common scheme or enterprise to possess an object, even where one does not have actual control of the item. A prosecution in such circumstances is subject to the same proofs as in any other ordinary offence, such as a bank robbery. It is necessary merely to show that the accused entered into a scheme with others, whereby he will possess through another the unlawful object. In such circumstances, each party then acts on the other's behalf.

109. Section 1(2) of the Misuse of Drugs Act 1977 reproduces the requirement in common law that another party can act on behalf of an accused. The other party (in this case, the co-accused) may be held to act on behalf of the accused in an enterprise in fulfilling the joint plan, so that what was done with the unlawful goods is consistent with the nature of the plan.

110. In the view of the court, the learned trial judge was entirely justified in allowing the issue to go to the jury. It would have been wrong for him to take any other course. For him to have drawn a conclusion that there was no case to answer would again have been to usurp the function of the jury in this case. The question of the sufficiency of the evidence was a matter for the jury and not for the judge in an application for a no case to answer. It was inferable that possession by the appellant’s immediate associates began when the drugs were transferred to the RIB to bring them to shore, where he was part of the reception party. It is of course true to say that mere association or presence at a scene of an illegal drugs importation is not sufficient to establish possession. But this was not the situation here. There was clear evidence, sufficient to go the jury from which they might infer that the appellant, far from being an innocent passive observer or spectator, had been an active participant in the joint enterprise.

111. The facts of this case are distinct from those which arose in R. v. Searle [1971] C.L.R. 593. There, a number of accused had been convicted of possessing a quantity of various drugs, found in a vehicle used by them ostensibly for a touring holiday. It was alleged that they were all in joint possession of all of the drugs. But the possession of any particular drug could not be attributed to any particular accused. The prosecution put the case on the basis of joint possession of all the drugs. The defendants gave no evidence.

112. The Court of Appeal of England and Wales considered that the effect of some parts of the summing up at the trial would be to equate knowledge with possession. However, it held that mere knowledge of the presence of a forbidden article in the hands of confederate was not enough; joint possession had to be established. The sort of direction which ought to have been given to the jury was to ask them to consider whether the drugs formed a common pool, from which all had the right to draw at will, and whether there was a joint enterprise to consume drugs together. In those circumstances, the possession of drugs by one of them, in pursuance of the common intention, might well be possession on the part of all of them.

113. In fact, as will be further explained later, the English law differs from our own law on a number of respects in this area. In any case, the facts in Searle are not the facts here. The evidence at this trial was to the effect that there was a common enterprise in relation to one very large consignment of the same drug, thus allowing for an inference of a joint enterprise, joint intention and joint possession. The evidence established here did not suggest that the drugs were the property of, or under the exclusive control of, only one of those involved in the enterprise. The drugs were all of the same type. The evidence established that each of the accused came within the terms of s. 1(2) of the 1977 Act. The trial judge did not err in his ruling on this point.

Was the judge’s charge on the issue of possession sufficient?
114. It is said next that the learned trial judge's charge on the concepts of possession, constructive possession and joint enterprise was inadequate. Much of this terrain has already been traversed in the last sections of the judgment and requires no repetition.

115. In charging the jury, the judge rhetorically asked the question as to whether each of the accused was a knowing part of a joint venture? He asked did that joint venture come to completion? He asked whether one or other of those involved with the joint venture had actual physical control of the drug at Dunlough Bay? He directed that it did not matter in legal terms that they failed to bring the drug ashore or that somebody failed to bring it to shore. He put matters this way:-

"If you are convinced that they were part of a venture which members of which got control of this drug out at the M3 buoy and brought it back into the territorial waters, and that there was then a misadventure, either through lack of petrol, or combination of diesel or weather which caused the boat to topple, in legal terms if they had control before the accident, the accident has not deprived them of control."

116. Later, following requisitions on the question of possession, he added:-

"… it was possible for two or more persons to be in possession if they are engaged in a common scheme, so the question that you have to ask yourselves is was the accused part of a scheme whereby he would possess the drugs through another. In those circumstances, if he was, the act of each is binding on the other. Possession involves both knowledge of what is going on and an element of control. Did the accused do some act, which was in furtherance of the scheme to possess? I would ask you to consider these matters and to return to consider your verdict."

117. The judge was directing the jury to consider the evidence and then to consider whether the evidence was such that they could draw an inference of knowledge and control from the presence of the drugs in circumstances where the accused’s relationship would lead to a conclusion that he had knowledge of the drugs presence. It was open to them to infer control from the particular surrounding circumstances.

118. In D.P.P. v. Foley [1995] 1 I.R. 267 at p. 281 this Court observed:-

"However, there are circumstances where an inference of knowledge and control can be drawn from the open and obvious presence of an article in circumstances where the accused's relationship to it would lead to a conclusion that he had knowledge of its presence. An inference of control can be drawn from particular surrounding circumstances."

119. It is the view of the court that the “surrounding circumstances” identified in detail earlier in this judgment were such as could have given rise to such an inference, and that the learned trial judge's charge was not in any sense erroneous.

Was the judge’s charge on circumstantial evidence inadequate?
120. It is said next that the learned trial judge's charge to the jury on the question of circumstancial evidence was inadequate.

121. Using the metaphor of a rope, the judge stated that the State was trying to prove its case by pointing to individual strands, which may not necessarily, on first view, mean anything, but when taken together showed a continuum or a meaning. He said that the prosecution were saying that all these meanings are strands, which when taken together mean one thing, that is guilt. He said that the strands of evidence, when looked at together, take the possibility of coincidence out of the equation; that there was just too much in it and that there was no innocent explanation. He indicated that they were entitled to draw inferences.

122. In response to requisitions, the judge specifically again directed the jury to give the accused the benefit of the doubt and, it must be said, no further requisition was raised on the point at that stage. Issues, especially complex issues, must be explained to a jury. Sometimes, a judge will use metaphors as an illustration. There is nothing wrong with this, provided the metaphor is an apt one and illustrates the point at issue correctly. There is no suggestion that the illustration he used was not an apt one. There is no indication of any error on the judge’s part.

No basis for a conviction of possession of drugs for sale or supply when there is no evidence that the drugs were intended for sale or supply within the State.
123. The court must turn finally to a point which was not raised at the trial at all. When hearing evidence as to sentence, Superintendent John Healy testified that the garda investigation was satisfied that the drugs were not for “the Irish market”. Relying on R. v Seymour [2008] 1 AC 713, counsel for the appellant now submits that the Misuse of Drugs Act 1977 does not prohibit the sale or supply of drugs outside the State itself. In Seymour, and later in R. v. Hussein [2011] 1 Q.B.1, the appellants each relied on evidence that the drugs found in their possession were intended for use outside the jurisdiction.

124. It is now contended in this appeal that the Misuse of Drugs Act 1977 was intended only for application within the State. It is suggested that, in order for the offences to be complete, any such sale or supply would have to be intended to be within the State.

125. This contention was not made at the trial. On this basis alone, the court would not entertain the point, even if it is now re-characterised as an issue of “want of disclosure” (see DPP v Cronin (No.2) [2006] 4 IR 329). Even were the point to be entertained, the court would observe that this precise point is covered by authority. The matter has already been decided (DPP v Van Onzen and Hoopmans [1996] 2 I.L.R.M. 387). There, this Court held that an intention to supply controlled drugs within the State is not an essential ingredient of an offence under s. 15 of the 1977 Act. To hold otherwise, the court held, would be to show a lack of concern for persons in other jurisdictions, who would be exposed to the consequences of drug trafficking. The court also held that the fact that there was a maximum penalty of seven years imprisonment for the offence of simple possession of a controlled drug could not be construed as an intention on the part of the Oireachtas to deal with cases where there is intention to supply drugs outside the jurisdiction. This court agrees with the decision in Van Onzen and Hoopmans and the reasons given therein. The facts are not distinguishable.

126. There is also material beyond the specific section which bears out the interpretation. The court is entitled to consider other provisions of the Act as an aid to interpretation. Section 20 of the 1977 Act makes it an offence for any person who aids, abets, counsels or induces the commission in a public place outside the State of an offence punishable under a corresponding law in force in that State. There is no express legislative content to be found to suggest that the Act is to be territorial in its effect.

127. There is also a strong policy ground for the court adopting the interpretation which has been urged on behalf of the respondent. It is simply this. What will be the situation, if, in any prosecution under s. 15 or s. 15A, an accused were simply to make a statement to the gardaí, or testify at a trial that his intention was to sell or supply drugs outside, but not within, the jurisdiction? Would that issue have to go to the jury, or might it even give rise to an application of no case to answer in every case in the absence of postive evidence of an intention to supply within the State? This would be an absurd interpetation of the section, which would render it inoperable. Any literal interpretation of the section does not necessitate a different interpretation. A court should lean against an construction of the law which would clearly defeat the intention of that legislation. In such circumstances, it is appropriate to adopt a construction of the section which not only accords with legislative intent but also with public policy and common sense.

Conclusion
128. In the circumstances, therefore, this court will reject each point on the appeal against conviction, and will proceed to deal with the question of the sentence which was imposed on the appellant.

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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Perry Wharrie [2013] IECCA 20 (19 April 2013) URL: http://www.bailii.org/ie/cases/IECCA/2013/C20.html Cite as: [2013] IECCA 20

Irish Court of Criminal Appeal