Irish Court of Criminal Appeal

Judgment Title: DPP v David Timmons

Neutral Citation: [2011] IECCA 13


Court of Criminal Appeal Record Number: 28/09

Date of Delivery: 04/12/2011

Court: Court of Criminal Appeal

Between/

Judgment of the Court delivered on the 12th day of April,, 2011 by Macken, J.

This is an application for leave to appeal against conviction, the applicant having been convicted on the 12th December, 2008 at Dublin Circuit Criminal Court of a common law offence. This was conspiracy to commit a crime, that is to say, unlawful possession of a controlled drug for the purposes of sale or supply, contrary to the provisions of s.15 of the Misuse of Drugs Act, 1977, as amended. The offence was alleged to have occurred on the 14th September, 2006. A sentence of eight years was imposed. The grounds for leave to appeal are listed as being fourteen in all. They are in the following terms:

(1) That the verdict of the jury was perverse, in that it was inconsistent with the evidence, because the jury could not have found beyond reasonable doubt that the applicant had committed the offence.

(2) That the learned trial judge had committed a fundamental error in law by admitting into evidence material, or information, obtained from mobile phones and from a notebook, all located in the residence of the applicant, and had thereby failed to ensure that the applicant had a fair trial.

(3) The learned trial judge had wrongly failed to explain to the jury how the mobile phone evidence should be treated; at its highest it was alleged it was “only supportive” of the prosecution case.

(4) That the learned trial judge had erred in law in failing to discharge the jury on the application made on behalf of the applicant by his counsel, in circumstances where the prosecution had repeatedly referred to the applicant as being the subject “of surveillance”, and by virtue of the use of the word “targets” when referring to the applicant and other co-conspirators, and had failed in law by permitting the fact of surveillance to be introduced, contrary to the provisions of Article 8 of the European Convention on Human Rights and Fundamental Freedoms.

(5) The learned trial judge failed to grant a direction on the application of the applicant, on the basis that there was no evidence that the applicant, in fact, conspired with “BT” and “JG” to possess a controlled drug, cocaine, on the relevant date.

(6) The learned trial judge erred in failing to grant a direction that there was no case to answer, there being no evidence that the applicant had, in fact, conspired with others to possess controlled drugs.

(7) The learned trial judge erred in failing to grant a direction, or to withdraw the charges from the jury, when there was no evidence that the applicant had, in fact, conspired with others to possess cocaine on the relevant date.

(8) The learned trial judge had failed to discharge the jury and failed to withdraw the charges from the jury, on the basis that the indictment was “void for duplicity”.

(9) The learned trial judge had failed to discharge the jury on the application of counsel for the accused, in circumstances where evidence was tendered that certain female members of the jury felt “uneasy” and “self-conscious” about using the same lobby for entering and exiting the courtroom as that of the “applicant’s supporters” who were present in court, the same leading to prejudice being suffered on the part of the applicant.

(10) The learned trial judge had failed correctly to charge the jury in relation to (a) the offence of conspiracy; (b) in failing to warn the jury not to carry out internet searches in respect of the applicant, or in respect of the case, or to warn the jury that if they had done so any person doing so should bring the same to the attention of the court; and (c) in accordance with the requisitions of the defence.

The Submissions
The parties make the following submissions in relation to the various grounds. In this judgment the grounds are dealt with as they are numbered above.

Ground 1

Ground 2

Senior counsel for the applicant, Mr. Kavanagh, submits in the first place that admissible evidence of prior misconduct should be confined to evidence of prior convictions only. He further argues that, as to the mobile phone texts: (a) these were incoming texts; (b) they were from an unknown person; and (c) there was no evidence they were either intended for the accused, or were ever received or read by him. In these circumstances, he contends that the material ought to have been excluded, first, on the grounds that it was not relevant to any issue in the trial, and secondly, on the basis that the material was designed and intended to impute previous misconduct relating to alleged unlawful possession or involvement in drugs by the applicant, in circumstances where its prejudicial effect outweighed any limited probative value, in particular, having regard to the tenuous nature of the evidence, and to the fact that it was hearsay. Thirdly, this evidential material lacked any firm connection with the applicant, had no temporal relationship with the events, only raised a suspicion, and invited the jury to speculate on the commission of a conspiracy. Finally, its wrongful admission could not be cured by a charge.

As to the admission of evidence contained in the notebook found in a bedside locker in the same bedroom of the applicant’s house, this was tendered on the basis that it consisted of a “tick” list, referring, it was said, to drugs supplies. In respect of this, the applicant said “no comment” when questioned. Counsel for the applicant argued that there was nothing to connect the notebook with the applicant, and there was no DNA or other proof that the notebook had been handled, or its material written, or read, by the applicant. He further submitted that this material too was entirely irrelevant to any issue in the trial. The content of this notebook should also not have been admitted on the same grounds as those argued above on the mobile phones information, that is to say, that it was at most “only supportive” of the prosecution case.

Ms. Duffy, counsel for the respondent, points out that, contrary to what is suggested by the applicant, the actual material in issue was presented in the absence of the jury. The evidence established that both the notebook and the mobile phones were found in a bedroom of the applicant’s house. While it is accepted there was no finger print or DNA evidence adduced in relation to the notebook, the respondent points to the belief of the gardai as to the status of the room in which the notebook was found (this evidence of the garda not having been challenged), and the basis for that belief. The learned trial judge was, she argued, entitled to conclude, on the evidence, that this was the bedroom of the accused. Insofar as the messages contained on the mobile phones are concerned, these phones were accepted by the applicant as belonging to him, and were found in the same room as the notebook, which was found in a bedside locker. The evidence that two communications were sent to phones belonging to the applicant enquiring, according to the garda’s evidence, as to the availability of drugs, is of relevance in a case where the applicant in his interviews, and by way of defence, maintained a wholly innocent involvement in the events in question. His explanation was that he was simply asked to give lifts to the two co-accused on the date in question, but had no knowledge of any conspiracy, or any involvement with drugs. The materials were therefore, it is argued for the respondent, not irrelevant, as alleged by Mr. Kavanagh.

The respondent submits that the balancing exercise to be carried out between the prejudicial and probative value of the evidence was a matter for the learned trial judge, and argues that the appropriate principles were properly considered and applied by her. The trial judge, having exercised her decision correctly, in law, there was no error in her ruling to admit the evidence.

Ground 4

The evidence, it is said, detailed an extensive operation involving surveillance of the applicant at his home earlier on the day in question. It is contended that the evidence of an operation involving “surveillance” of certain “targets” could only have led the jury to believe that the applicant was someone “known to the gardai” for criminality, and that the jury would have believed, or strongly suspected, as a result of these references, that he was a drug trafficker. Further, the jury must have concluded the gardai were acting upon “intelligence gathered from an informer” or from their own covert surveillance of the applicant, his home, his motorcar or his telephone. The admission of such evidence resulted in significant prejudice to the applicant, and was not probative of any element in the case. It was, therefore, unnecessary and irrelevant. It had the effect of, or created the impression or suspicion of, an unfair trial. Counsel invoked DPP v. James Bowes (No. 1) [2004] IECCA 44, and, in particular, the judgment delivered by Fennelly, J. in that case, as well as DPP v. McGartland (Unreported, Court of Criminal Appeal, 20th January, 2003) in support of his contention that such evidence should never have been led.

Finally, in relation to these grounds, and although not raised in the course of the trial, the applicant, in his written submissions, seeks liberty to argue that the surveillance, because it was wholly ungoverned, was unlawful, and infringed Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms in respect of private life, family life, home and correspondence, and there was no justification for its taking place. This is all that is said on behalf of the applicant in relation to this ground of appeal, however, save that counsel argues there was no evidence of any illegality found as a result of the surveillance, the subject of the complaint. Ground 4 was not developed further, either in the written submissions, or in oral argument.

The respondent argues that the use of “surveillance” and/or “target” was not such as to require the learned trial judge to discharge the jury, as contended. According to the respondent, counsel for the applicant has misinterpreted and misdescribed the concerns in DPP v. James Bowes (No. 1), supra., upon which he relies. In support of that view, the relevant portions of that decision are invoked by the respondent, to which the Court will refer in its conclusions. The respondent also contends that the case of DPP v. Bowes (No. 2) also cited on behalf of the applicant, is not a case in point. It is submitted that the learned trial judge dealt with the application for a direction correctly, and did not err in construing the above judgments. Further, no “confidential information” the subject matter of complaint in the Bowes No. 1 case, was led in the present trial, as a result of prior agreement with the defence. The respondent points out that no concern was raised on behalf of the applicant, either in advance of the evidence being led, or by way of an application to the learned trial judge, in the absence of the jury, on the nature of the surveillance undertaken, or on the use of any likely language. There was no infringement of the rights of the applicant by the use of the terms invoked, such as “target”, and nor was the surveillance in question in contravention of Article 8 of the Convention.

Grounds 5, 6 and 7

As to these grounds, first, the only common feature, it is submitted, about the co-accused, is that they were both in telecommunication contact with the applicant, and, independently of each other, travelled in the applicant’s car to where the events giving rise to the charges occurred. The evidence did not support the prosecution case that the appellant had conspired, together with both JG and BT, to possess cocaine. It is argued that individual counts alleging conspiracy contrary to common law, involving JG and BT separately, would be correct in law, as opposed to the charge in the present case, which alleged conspiracy between the applicant and both JG and BT. There was, it is said, no evidence of any conspiracy with both co-accused.

Secondly, there was no evidence the applicant knew that the agreed course of conduct, if it were carried out, would involve doing acts which constitute the relevant acts together with the relevant intention, for the required commission of the offence relating to specific identified drugs. It is submitted that there is a requirement in law to know this before the offence is established, and it is argued that this is supported by case law from the United Kingdom, in particular, R v. Siracusa [1996] 1 QB 589, R v. Patel (Unreported) 7th August, 1991, as approved in R v. Taylor [2002] CRIM LR 205 (Court of Appeal). There was, it is contended, insufficient evidence to satisfy any of the criteria set out in these cases, and, in particular, to establish that the applicant’s course of conduct related to a conspiracy to possess, specifically, cocaine, on the relevant date, contrary to s.15 of the Misuse of Drugs Act, 1977, as amended.

The respondent contends that the evidence before the court involved all of the necessary interactions, all of which occurred on the date in question. Each of the three men charged with conspiracy was the subject of a perfectly lawful surveillance operation undertaken by the gardai on that date. The evidence established that when the gardai moved in and made arrests, both co-accused were physically present, both were actively involved in activities which it was open to the jury to conclude were in direct furtherance of the conspiracy charge. There is no requirement in law that, in a conspiracy of this nature, the prosecution is obliged to establish that all three parties conspired in person, and at the same time. Together with the evidence led of the connection by phone communication between the applicant and each of the two co-accused - and despite there being no evidence of phone contact between the two co-accused themselves - there were also the various car journeys completed by the applicant, with each of the co-accused, inter alia, bringing them to where the events occurred. Direct evidence was also adduced from which it was open to the jury to conclude that both the co-accused, not only by their actions earlier on the day in question, in association with the applicant, but also by their acts and deeds at the time when the gardai intervened, were acting in furtherance of the conspiracy. Evidence was given that JG had a bag extended, it was said, to receive drugs, and BT had a second bag, subsequently discovered to contain money, in his possession.

The People (Attorney General) v. James O’Connor and Michael O’Reilly [1944] I.R. 42 is relied upon by the respondent as authority for the principle that, in the absence of evidence of an express agreement between parties to a conspiracy, evidence adduced in a case may properly permit the jury to infer the existence of a conspiracy. In the present case there was, it is argued, ample evidence upon which the jury could properly infer the applicant’s involvement in the contended for conspiracy.

As to the argument made on behalf of the applicant, concerning any alleged requirement to establish knowledge that the events would give rise to a charge relating to specified unlawful drugs, the single count on the indictment here did not require any clarification, in the absence of a classification of drugs system in this jurisdiction, similar to that established by statute in the United Kingdom. The respondent contends that the cases cited are not ones which are of any assistance to the Court, and cannot affect the position in respect of the charge in the present case.

Ground 9

The applicant relies on the decision of this Court in DPP v. Anton Mulder [2007] IECCA 63 (Unreported, Court of Criminal Appeal, 20th July, 2007). Counsel for the applicant alleges that there must have been, in the circumstances, a perception of bias against him, the existence of which could not be ruled out, and on the basis of the decision in R v. Sawyer [1980] 31 Cr.App.R 283, the applicant was entitled to have a direction on the matter in his favour.

The respondent accepts that the test set out in the DPP v. Anton Mulder, supra., is the correct test, namely, “would a reasonable person have a reasonable apprehension that the appellant would not, in the circumstances, receive a fair and impartial trial”, that test being taken from the decision of the Supreme Court in Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412, as repeated on many occasions since in many other cases. It is argued, however, that the learned trial judge was correct to distinguish the facts of this case from those arising in the Mulder case. In the present case, there was no suggestion of intimidation, as that term is understood. While this word is used in the written submissions of the applicant, counsel for the respondent points out that it is an allegation which was never made in the course of trial, or at any point during the evidence of the garda in question, or indeed in any of the submissions before the learned trial judge. There was no suggestion that anything untoward, or unduly untoward, had taken place. It is submitted, on the facts of the present application, that they do not reach the required standard of establishing that a reasonable person would have a reasonable apprehension that the appellant might not receive a fair and impartial trial.

Grounds 3 and 10

First, as to ground 3, which relates to the learned trial judge’s alleged failure to explain to the jury how the mobile phone evidence should be treated, the mobile phone evidence, it is said, was merely “supportive” of the prosecution case, rather than corroborative of it, and moreover some of the mobile phone evidence was hearsay. In addition, the phone software upon which some of the evidence relied, could not be depended upon and was unreliable. It was submitted by Mr. Kavanagh that the trial judge had failed to deal appropriately with these matters in her charge.

As to the allegation that the learned trial judge failed properly to charge the jury in respect of the offence of conspiracy, the criticism was that it was not made sufficiently clear to the jury that the statutory presumption, which would normally apply if a simple s.15 offence was charged, did not apply here, as it was a common law offence of conspiracy. There could be no presumption that the possession of drugs, if established, was therefore possession for the purpose of sale or supply, as would otherwise have been the case. The result was that if the conspiracy was to possess drugs for personal use, the applicant could not be guilty of the offence actually charged. Had the trial judge correctly charged the jury, it would have been clear that the facts, as established, possibly disclosed the commission of a conspiracy whereby it was agreed between the co-conspirators to have any of the following: simple possession of a controlled drug (or any one of a series of other alternative offences). The learned trial judge ought to have charged the jury on that basis. She further ought to have charged the jury that they must consider each possible alternative offence and decide which, if any, was supported by the evidence adduced by the prosecution. Having decided whether the evidence supported one or any of them, the jury would then have to consider whether any one of these offences was proven by the prosecution beyond reasonable doubt. Having regard to the offence charged, the jury could only convict on that, but on no other

As to the failure to warn the jury not to refer to matters on the internet, the subject of ground 10, it is submitted on behalf of the applicant first, that it is the responsibility of the prosecution to provide and ensure a fair trial in accordance with law. If, therefore, there is material available on the internet, that will, or may, seriously prejudice an accused, then it is the duty of the prosecution to ensure its removal well in advance of a jury being empanelled to try a case. Secondly, the prosecution is in the best position to do so and has the power, authority and resources to do so. It is not for the defence to provide the circumstances whereby a trial is fair, as this may be beyond its competence and ability. Thirdly, in the present case, since it cannot be stated reliably that some one or other of the jurors did not carry out internet searches concerning the incident and/or the trial and sentence of the alleged co-conspirator, and since no realistic steps were taken by the prosecution to ensure that members of the jury would not obtain information from the internet highly prejudicial to the applicant, he was not provided with a fair trial or a trial in accordance with law. This was in breach of his constitutional rights and his rights pursuant to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Lastly, in relation to the charge, it is alleged that the learned trial judge failed to charge the jury in accordance with requisitions raised by the defence. It is said, in the written submissions, that this ground is subsumed into others relating to the judge’s charge, and the Court takes it that it is subsumed into the first of the last mentioned ground of complaint, relating to the failure to charge properly on the conspiracy issue.

The respondent replies to the question of the alleged failure properly to charge the jury in relation to the offence of conspiracy, and counters that the trial judge specifically charged the jury in relation to the offence of conspiracy to possess cocaine for the purposes of sale of supply, and sufficiently and properly charged the jury in relation to each and every element of that offence. It is clear from the learned trial judge’s charge that the jury had to form a view that the prosecution had proved to their satisfaction, and beyond reasonable doubt, that there was an agreement to possess a drug, that drug being cocaine, and that each ingredient in the conspiracy offence which the learned trial judge indicated, including possession for the purposes of selling or otherwise supplying, had to be established. The charge adequately dealt with all these factors. Moreover, no further clarification or further direction to, or instruction of, the jury was sought by counsel for the accused by way of requisition, after the conclusion of the learned trial judge’s charge.

As to the alleged failure of the trial judge to warn the jury not to carry out internet searches on the applicant, or at least in respect of the case itself, this was a matter which arose near the end of the trial. It was alleged on behalf of the applicant that on a quick internet search, the defence team had discovered a large amount of material concerning the case, which was highly prejudicial to the applicant. The trial judge was requested to issue a warning to the jury not to carry out internet searches. The learned trial judge gave an appropriate warning in the following terms:

“That the evidence in the case is what they heard at trial and that other evidence that they may or may not know of should not be attached to the case and that they should not speak or make any attempt to find out any more about any other evidence in the case”.

Ground 8

In his written submissions it is argued on behalf of the respondent that the offence of conspiring to commit an offence contrary to s.15 of the Misuse of Drugs Act, 1977, as amended, and the regulations made thereunder, is an offence permitting its commission in more than one way, but nevertheless it remains one offence. The respondent pointed out, correctly, that this was accepted on behalf of the applicant as being the case, and is also supported by the case law.

Counsel on behalf of the respondent, suggests this position does not change as a result of an accused being charged with the offence of conspiracy, and there is no element of duplicity. The charge, being one of conspiracy to commit an offence, does not render sub-section 15(2) inapplicable, as the sub-sections of s.15 are encompassed within the body of s.15 itself. Therefore, the offence of conspiracy to commit a substantive offence must be seen within the context of the overall ingredients required for its commission.

Conclusions
Since there are a very large number of grounds listed in this application for leave to appeal, it is appropriate to commence with those which can be disposed of readily.

Ground 10

Significant emphasis is now placed, in the written submissions of the applicant, as to what is asserted to be the responsibilities of the respondent and of the learned trial judge in relation to material on the internet. The transcript makes it clear, however, that no request was made by the applicant at trial for any action to be taken, either by the learned trial judge or by the prosecution, other than to ask, in the course of the charge, that a warning be given to the jury. The terms of the warning are set out above. The learned trial judge gave a warning, correctly, but did not in that warning, emphasise the possibility of what might arise should an internet search be made. It is clear from the transcript that the learned trial judge was very alert to the fact that such a warning might well be disadvantageous to the applicant, as accused, by drawing attention to matters of which the jury was then unaware. It is accepted in the submissions of the applicant that there may be difficulties inherent in giving a specific warning. The warning given was that the jury must confine itself to determining matters on the basis of evidence heard solely in the course of the trial, and not by reference to any extraneous matters. In the context of the facts in this particular case, the warning actually given by the learned trial judge was both measured and appropriate. Further, even on the applicant’s own written grounds and the argument tendered, there is no evidence that any member of the jury was alert to, had knowledge of, or carried out any internet searches, which would, or did, give them any information on the existence of a co-conspirator who had pleaded guilty to the charge, nor as to what, in fact, might be found on any site, and the application was entirely based on speculation as to the possibility that such an event might have occurred.

The basis upon which an application for leave to appeal may, on a ground of this nature, succeed, is that the issue is such as to give rise to a real and serious risk of there having been an unfair trial by virtue of the jury being contaminated in some way by knowledge, or the likelihood of knowledge, of material on the internet, and the jury thereby possibly becoming prejudiced or influenced against the applicant. Not only was there no evidence which could support the contention that there was a real and serious risk of an unfair trial, but there was no evidence at all that any such contamination had, or was likely to have, occurred. There was therefore no evidence to support the submission that the jury was in any way likely to have been prejudiced against the applicant. It is not necessary in these circumstances to embark on any analysis of what obligations, if any at all, may be imposed by law on the prosecution, or indeed on any court, in respect of actual material existing on the internet which may be viewed by a member of a jury. In this Court’s view, it is preferable to defer considering this potential problem to an appropriate future case, if it should arise.

The Court is satisfied that this ground for leave to appeal cannot succeed.

Ground 8

The statement of offence read as follows:

“Conspiracy to possess controlled drugs for the purposes of sale or supply, contrary to common law.”

“David Timmons, together with JG and BT, did on the 14th September, 2006, within the State, conspire together to commit a crime punishable by law, to wit the unlawful possession of a controlled drug, namely, cocaine, for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations, 1988 to 1993, made under s.5 of the Misuse of Drugs Act, 1977, and contrary to s.15 of the said Act.”

“It’s also clear that section 15 is non-duplicitous, in that it simply provides for the commission of an office in more than one way. In other words, possessing it for the purpose of selling, or possessing it with a purpose of otherwise supplying it to another, in contravention of the regulations. My complaint in relation to this count is that it is, as I’ve said, two separate offences contained in the statement of offence, in that it’s to be read and seen distinctly and separately from a section 15 charge.

The offence with which we have been charged … is one that is duplicitous because it alleges two separate acts, as distinct from an offence which might allege the commission of an offence in two separate ways”.

This ground for leave to appeal is refused.

Ground 9

It is well established in the case law that juries are robust in nature, that they respond well to appropriate directions given by trial judges in the course of trial, and are well able to confine themselves to the evidence heard during the course of the trial, rather than being distracted by extraneous matters (see D v. DPP [1994] 2 I.R. 465, Z v. DPP [1994] 2 I.R. 476, Kelly v. O’Neill [2000] 1 IR 354 and others). This well established recognition of the robustness of juries and their commonsense is something which trial judges and appeal courts must hold in proper regard and keep in mind. In the present case the learned trial judge was satisfied, on the evidence before her, first, that there had been no attempt to make contact with the jury in any way, directly or indirectly, and secondly, that it was merely the presence of certain persons in the area through which the jury had to pass that caused the “unease”, and not any overt or even an unspoken or implicit threat.

Quite apart from the foregoing sensible and proper finding by the learned trial judge, the law relating to the perception of bias, that is to say of “objective bias”, which is the basis for this application, is equally very well established as being based on the test established and applied, both by this Court and the Supreme Court, as found in the judgment in Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412, in which Denham, J., expressed the test in the following terms:

“Would a reasonable person have a reasonable apprehension that the appellant would not, in the circumstances, receive a fair and impartial trial”?

“It is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicant would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person.” (emphasis added)

It seems to the Court that the applicant has not established even an arguable case that a reasonable person, properly informed, would conclude, or believe, that members of the jury, having experienced what was described in the course of the trial by the garda, would, in turn, react to a feeling of unease in such a way as to use it against the applicant, and would therefore fail to have proper regard to the charge of the learned trial judge, and to all the warnings given by her, including those under which they, as members of the jury, are obliged to make their decision by reference only to the evidence adduced in the trial, and not to any extraneous or speculative matters.

There is no basis upon which a ground, contending that the learned trial judge had failed to ensure a fair trial by not discharging the jury in the above circumstances, can succeed. This ground is therefore refused.

Ground 2

The first matter to consider is whether or not these pieces of evidence were relevant to the issues in the trial. The evidence of the garda relating to information found on the mobile phones was that the information in question, in the form of text messages to the phone(s), were queries as to the availability and/or supply of drugs. It is true that these questions were worded in language other than a direct reference to, for example, “heroin” or “cocaine”, or even “drugs”. Rather, the evidence was that they were in the form of monikers or alternative common names used to describe them by persons seeking these types of drugs. They included references to the availability of “snow” and “brown”. This was explained in evidence by the garda witness as being an enquiry relating to cocaine and heroin, respectively. This evidence as to the meaning and import of these words, was not challenged. The phones were accepted by the applicant as being his phones, although it is true that in the course of his interviews he said he had not used them “recently”, without saying precisely what that meant.

A factor which may, on the case law, be taken into account when considering the relevance of this material, is the defence put forward by an accused, which in the present case was one of innocent association on the basis that his involvement in the events in question was entirely coincidental, he having been requested simply to give a lift to each of his two alleged co-conspirators on the date in question. Apart from that, he denied any involvement in the conspiracy, or any knowledge of the events giving rise to the discovery of the substantial quantities of drugs, or any involvement in drugs.

It seems to the Court that the material on the phones, accepted by the applicant as being his phones, provided that the garda evidence was credible – and the credibility of the evidence was not challenged – was, as the learned trial judge found, relevant to issues to be decided in the course of the conspiracy trial. This may be clear cut since the applicant accepted these were his mobile telephones, and the nature and character of the incoming calls appear very relevant to the nature of the offence charged. That being so, the exercise which is to be carried out by a trial judge, when objection is made to the admissibility of such evidence, is to rule on the aspect of its admissibility by reference to applicable principles. The evidence was of probative value to the existence of a conspiracy of the type in issue. This is a part of the test, which is to balance against its alleged prejudice for the accused, the probative value of the evidence in question. The question of the weight to be attached to this evidence is a separate matter, and a matter, in the heel of the hunt, for the jury for its assessment in reaching its verdict.

Evidence of this nature sought to be admitted can also properly be considered as real evidence in furtherance of a conspiracy, as here, even if it dates from earlier than the date of the alleged commission of the offence, and may be of significant relevance in such cases, as is clear from R v. Sidaq [1994] 98 Cr.App.R. 59 invoked by the respondent. According to the principle applied in that case, evidence of the two telephone calls made to the applicant’s phone enquiring as to the availability of, inter alia, cocaine in July and August gives rise to a question as to whether these dates were sufficiently “proximate” to the date on which the conspiracy was alleged to have occurred, which was the 14th September. Having regard to the nature of the charge, being that of conspiracy to possess drugs for sale and supply, which in the context of this case were being brought into the country by others, and the defence to the charge, the Court is satisfied that the queries by phone were sufficiently proximate to the events in question, since they establish an enquiry as to the future availability of drugs, including cocaine, the specific drug in issue at trial in a relatively proximate period prior to the offence date.

Turning now to the question of the material found in the notebook, the first matter to consider is whether or not the learned trial judge was correct to accept that the notebook, having been found in a bedroom in the applicant’s house, was properly accepted by her as belonging to, or under the applicant’s control. The evidence of the garda, not challenged, was that he considered that this was the defendant’s bedroom. This was based on several facts, including (a) the fact that the three telephones found in the same bedroom were acknowledged by the applicant as being his; (b) the fact that there was a baby’s cot along with a double bed in that room, when it was acknowledged that the applicant and his partner, living in the three bedroom house, had a baby, from which it could be inferred that this was the room in which all three slept. Although questioned about the notebook and where it was found, in interviews, the applicant did not suggest at any time that the bedroom was not his, or that the notebook was not his. Of course, he made no admissions either, confining his responses in relation to the same, as he was entitled to do, to “no comment”, from which no admissions could possibly be inferred. The question which arises is whether, on the actual evidence adduced, the learned trial judge was entitled to infer it was his bedroom. The Court is satisfied she was justified in accepting the garda evidence as credible, and in drawing the inference she did from it, namely, that it was his bedroom.

It seems to the Court that if real evidence were found in the bedroom of an accused, that fact not having been challenged, such as, for example, drugs, it would be open to a trial judge to accept that those drugs were in the possession of, or under the control of, that accused, notwithstanding that an accused’s partner and infant child also occupied that room, as was the case here. While it is true that there was no DNA evidence to support the fact that the applicant had contact with the notebook, the notebook was found in the bedside locker beside the bed in the bedroom which he occupied, and in the same room as the phones belonging to him. In such circumstances, was it open to the trial judge to infer from the facts adduced that the applicant was the person who possessed, or had control of, the notebook, and/or that it was his? It seems to the Court that the learned trial judge was entitled to conclude that there was evidence sufficiently connected to him to place the notebook in his possession or control. Assuming its content, which was sought to be admitted, was relevant and met all other tests, then that content was also admissible in evidence.

The material in question, which according to the garda evidence related to “ticked” entries concerning the sale or supply of drugs, was relevant to the issues in the case, and was thus prima facie admissible. It was undoubtedly prejudicial to the applicant. So also, of course, is much of the evidence sought to be adduced by the prosecution in criminal trials. The issue for the trial judge was whether or not its prejudicial effect was such as to outweigh its probative value so that it should be excluded. Its probative value was directed towards indicating, establishing or assisting in establishing that the applicant was involved in a conspiracy to sell or supply prohibited drugs, namely, cocaine, on a specified date. The evidence was sought to be adduced on the basis that it tended to support the conspiracy events, and rebut the innocent defence tendered. It was therefore of probative value and, in the Court’s view, the learned trial judge was entitled to find this outweighed its prejudicial value.

The next test to be considered, according to the jurisprudence, and, in particular, the judgment of this Court delivered by Budd, J., in DPP v. Gerald McNeill (Unreported, Court of Criminal Appeal, 31st July, 2007), which adopted the principles established in the English case R v. Pettman (Unreported, Court of Appeal, 2nd May, 1985), is whether the material, even if prejudicial, may, in any event, also be admitted in an appropriate case, where the events in question would be incomplete without the background evidence, on an alternative basis. While, as a general rule, evidence of prior misconduct will frequently be excluded, there are exceptions to this, and the materials on the phones and in the notebook fall into that category, according to case law accepted as applicable in this jurisdiction. It is helpful to point out that the decision in Pettman, itself an unreported decision, was re-affirmed by the Court of Appeal in England, in the case of R v. Sawoniuk [2000] 2 Cr.App.R. 220, about which the Court of Appeal remarked:

“… it was said that in order to make a rational assessment of evidence directly relating to a charge, it may often be necessary for a jury to receive evidence describing, perhaps in some detail, the context and circumstances in which the offence charged is said to have been committed.”

In the present case, the learned trial judge, in considering the matter, did so in detail, and adopted the principles enunciated in Pettman, supra. and other case law – the only case law opened to her - and applied these to the evidence of telephone messages and the notebook information sought to be admitted in the present case. She found that the material was admissible within the ambit of that latter jurisprudence for the purposes of adducing background narrative misconduct evidence, relevant to the charge and its context. In assessing whether its probative value outweighed its prejudicial content, applying that test, the learned trial judge also found, in line with the jurisprudence in that regard, that its probative value outweighed any undoubted prejudice. She recognised that while the jury could not convict on speculation, they would be entitled to draw appropriate inferences from the evidence adduced. That clearly included inferences which might properly be drawn from real, direct and/or circumstantial evidence.

In this jurisdiction, apart from DPP v. McNeill, supra., which this Court is entitled to adopt as being influential, even if not binding, other cases are of assistance. A review and a distillation of the case law on the admission of evidence of prior misconduct, across a broad ambit, is usefully made – and with great clarity – in McGrath on Evidence (Dublin, 2005) at Chapter 9, Character Evidence. First, it should be said, that nowhere in this analysis is there any suggestion the prior misconduct evidence is only admissible, if at all, if it consists of prior convictions, as counsel for the applicant contends, and this argument is rejected. Further, in People (DPP) v. B.K. [2000] 2 I.R. 199, a judgment of this Court, delivered by Barron, J., the balancing test was applied.

Finally, this evidence was not sought to be admitted on the basis of the applicant’s “bad character”, in the first sense used in Makin v. Attorney General for New South Wales [1894] AC 57, as expressed or refined as follows in DPP v. Boardman [1975] A.C. 421:

“It is perhaps helpful to remind oneself that what is not to be admitted is a chain of reasoning and not necessarily a state of facts. If the inadmissible chain of reasoning is the only purpose for which the evidence is adduced as a matter of law, the evidence itself is not admissible. If there is some other relevant, probative purpose than for the forbidden type of reasoning, the evidence is admitted, but should be made subject to a warning from the judge that the jury must eschew the forbidden reasoning.”

This Court is satisfied both items or classes of evidence were admissible on both of the above grounds, being misconduct evidence relevant to issues in the trial, and that their probative value outweighed their prejudicial effect.

This Court is satisfied it would be open to a jury, properly charged, to conclude that the information on the mobile phones, being the applicant’s telephones on his own acknowledgement, and the extracts from the notebook found in the bedside locker in his bedroom, properly found to be under his control, were both items of evidence upon which they could conclude, together with other evidence, that the applicant had an involvement in a conspiracy of the type with which he was charged on the day in question. The Court is satisfied that the learned trial judge was entitled to admit the evidence in question, both from the mobile phones and from the notebook.

Leave to appeal on the basis of ground 2 is refused.

Ground 4

This ground for leave to appeal is based on the interchanging by the applicant of the word “surveillance” with the phrase “confidential information” which has been the subject of the earlier case law referred to in the arguments set forth above. However, the use of the phrase “confidential information” is subject to particular criticism, because, as is clear from the case law, including DPP v. Bowes (No. 1), supra., it may derive from an unfair attempt to present in the course of a trial evidence such as pure hearsay evidence, based on “confidential information” relating to matters which could not, of their nature, be otherwise put before the court, where such evidence is not ordinarily admissible. This is clear from the extract cited on behalf of the applicant from the judgment of Fennelly, J. in that case, in the following terms:

“The court is satisfied that the evidence regarding the confidential information should not have been given. It was not probative of any element of the case against the appellant. Certainly the fact that gardai from the National drugs unit in significant numbers and in plain clothes particularly targeted a car driven by the appellant was almost certain to rouse the suspicions of the jury that the gardai were acting on information. It was unnecessary to lead any evidence at all on the subject of confidential information”

No material has been put forward on behalf of the applicant before this Court, and according to the transcript, no evidence or other material was put before the jury upon which it could be reasonably suggested that the use of the words by the gardai in the course of their evidence and in respect of which they were cross-examined, was such as to have formed a basis for even the likelihood of a real or serious risk of an unfair trial for the applicant.

It is further contended on this application that liberty should be granted to permit an additional ground, that the “surveillance” in question was excessive, even oppressive, and that it thereby infringed rights of the applicant pursuant to Article 8 of the European Convention on Human Rights. The case law of the European Court of Human Rights accepts the necessity, as is apparent from the Convention itself, that surveillance can properly take place for the purposes of crime prevention, a matter accepted by counsel for the applicant. That was precisely the reason for the presence of gardai in this case. There is no evidence that their numbers were excessive, given the numbers of persons involved in the alleged conspiracy, the travel arrangements involving the commercial truck, referred to below, and its arrival at the meeting point, the involvement of the applicant, inter alia, in the co-ordinated travel arrangements, and so forth. Still less could this Court find, on the evidence adduced, that the surveillance of the applicant was oppressive. Not surprisingly, this issue was not raised at trial on behalf of the applicant, and the case law on the same is clear, notably since DPP v. Cronin [2006] 4 IR 329 reiterated the principles on this absence.

This application for leave to add a ground of appeal is refused.

Grounds 5, 6 & 7

This latter argument is based on R v. Siracusa [1996] 1 QB 589, and like cases, and can be disposed of first. This ground of the applicant’s application is misconceived. These decisions are all to the effect that where a conspiracy count identifies in the particulars of offence, a particular controlled drug, it must be proved against each of the defendants, not only that he knew that the agreement related to the importation, production, possession, and/or supply of a controlled drug, but also it must be proven beyond reasonable doubt that an accused knew it related to the particular drug mentioned in the indictment, or knew that it related to a drug of the same class as the drug mentioned, or believed it related to another particular drug of the same class, or of a class attracting a greater penalty, or believed that it related to a drug of a class attracting a greater maximum penalty, without having any belief as to any particular drug or to have not cared at all what particular drug was involved. The several possible offences based on this argument, and the steps the applicant contends must be gone through by the jury, were set out as part of the applicant’s written submissions, but were in part duplicated. They read as follows:

1. Simple possession of a controlled drug.

2. The simple possession of a controlled drug, namely, cocaine.

3. The possession of a controlled drug for the purposes of selling it to another.

4. The possession of a controlled drug, namely cocaine, for the purposes of selling it to another.

5. The possession of a controlled drug for the purposes of supplying it to another.

6. The possession of a controlled drug, namely cocaine, for the purposes of selling or supplying it to another.

“Reference was made in the oral and written submissions to the law in England and Wales. However, this is a matter of the application of Irish law and neither the decisions of the British parliament nor the courts of England and Wales are very helpful. The policy of the Oireachtas is clear from the statutes. These are most serious offences with the potential of sentences of life imprisonment.”

Grounds 5 and 6

There was, as a matter of fact, ample evidence upon which a jury, properly charged, could conclude that the applicant was involved in a conspiracy of the type alleged. First, there was clear evidence from the gardai of the movements of the applicant during the course of the morning and early afternoon in question, including the visits to and from the public house premises in Lusk where one of the other co-conspirators had earlier arrived by taxi, and of picking that co-conspirator up again later at a different point in Lusk. Secondly, there was evidence of taking that person on a journey around the roads in the surrounding area of Lusk, including past the location where the drugs were later found in the course of being transferred. Thirdly, there was evidence relating to the movements of the applicant, travelling in his car, with one of the co-conspirators, on the road from Lusk towards Skerries, during which trip the applicant in the same car made contact with an English registered truck (with two drivers from England) on that road by flashing lights at the truck or by acknowledging flashing lights from that truck. Fourthly, there was evidence that the applicant in his car, having communicated with or been acknowledged in this way, made a U-turn to follow the same truck for a short period when the truck pulled in to the side of the road to allow the applicant to pass it out and, in effect, lead the truck to its destination. Finally, the applicant's two co-conspirators, having been dropped separately at the destination by the applicant, were found to be in the course of accepting drugs into a bag and in passing over or having ready to pass over substantial sums of money from another bag. Apart from these matters there was also evidence relating to the several phone calls made to and from or between, the applicant and each of his co-conspirators, one of whom the applicant claimed, in interview, he had never met previously. It is true of course that the applicant said, in interview, that he had no involvement in any conspiracy or any involvement in drugs but had, coincidentally, been asked by each co-conspirator to drop him at the Rush/Lusk Railway station, which, in turn, was right next door to the drugs transfer point. The evidence of his denial of being so involved was, of course, evidence which the jury was also entitled, or even obliged, to have regard to. It does not, however, deprive the jury of being entitled to consider all of the other evidence, just cited in part, which was established, including also evidence of the notes contained in the notebook referred to earlier in these conclusions, as well as evidence tendered as to the meaning of the information contained in text messages on telephones which belonged to the applicant.

It is clear from the case law on this issue, including R v. Galbraith [1981] 73 CR.App.R 124, as adopted in this jurisdiction, that unless there is no evidence upon which a jury, properly charged, could reach a verdict, all of the above evidence falls precisely into the category of evidence which is properly left to a jury to consider. The learned trial judge’s decision to reject the application for a direction, on the alleged basis that the prosecution had not adduced any evidence from which a jury could convict the applicant of the offence of conspiracy, was a valid and proper legal exercise of the discretion vested in her. The application based on grounds five and six are, in the circumstances, refused.

Grounds 3 and 10 (in part)

As to the first of these, it is alleged that the mobile phone evidence could not have been and was not corroborative of the prosecution case, but merely “supportive” of it. In addition the phone software, upon which some of the evidence was based, could not be relied upon. The first issue to be considered is what precisely is the significance of the allegation that the information in question was merely “supportive” rather than “corroborative”. In the context of a consideration of this, in DPP v. Meenan [2006] IECCA 104, concerning corroborative evidence of an accomplice, this Court said:

“As pointed out by Lord Pearson in D.P.P. v. Hester [1973] A.C. 296 at 321:-
“…the word ‘corroboration’ in itself has no special legal meaning: it is connected with a Latin word ‘robur’ and the English word ‘robust’ and it means ‘strengthen’: perhaps the best synonym is ‘support’.”

“There was much debate both at the court of trial and in this appeal in relation to the extent to which certain categories of evidence should be regarded as corroborative. It was submitted that the court of trial mischaracterised as corroborative certain evidence which was claimed by the defence to be merely supportive. Before addressing this issue it is important to point out that, as a matter of law, the distinction which can properly be drawn between evidence which is in the legal sense corroborative on the one hand or merely supportive on the other arises only in a limited number of cases. In the vast majority of circumstances the distinction between corroborative and supportive evidence is of little substance. It is only in the limited category of cases where either:-
(a) corroboration is required as a matter of law, or

(b) there is established either in case law or as a matter of statute an obligation to warn a jury as to the dangers of convicting without corroboration, that the technical requirements for evidence to qualify as being corroborative in the formal sense are relevant.”

It should be noted also in relation to these grounds (a) and (b) that the charge to the jury was delivered by the learned trial judge in separate segments on separate days. At the end of each segment, the learned trial judge invited comment or requisitions from counsel for the applicant, and from counsel for the prosecution, and in response to such comments and/or requisitions, addressed these in the next segments of her charge. In the present case, no further clarification of the learned trial judge’s charge, and, in particular, none in relation to her treatment of the mobile phone evidence, or in relation to the offence of conspiracy, was the subject of any requisition, although other matters were raised. As the case law makes it clear, it can properly be inferred from the absence of the same that skilled counsel acting on behalf of the applicant in the course of trial, such as in the present case, was satisfied with the completeness and with the adequacy of the charge of the learned trial judge.

In the foregoing circumstances, no basis has been put forward to support the allegation that the learned trial judge failed to charge the jury adequately in relation to these issues, nor has any reason been advanced for not having raised requisitions in respect of the same.

The allegation that the learned trial judge failed to charge in accordance with the requisitions of the defence is not supported from a reading of the transcript, and, moreover, in the submissions filed on behalf of the applicant, this is mentioned as being “subsumed into” other specific grounds of appeal. It therefore requires no further comment.

Leave to appeal on the basis of ground 3 and the relevant part of ground 10 are refused.

For all of the above reasons, the application for leave to appeal is rejected.