DPP -v- Sophie Malric
Neutral citation (2011) IECCA 86.
Court of Criminal Appeal
Judgment was delivered ex tempore on November 24th, 2011, by Mr Justice Joseph Finnegan, Mr Justice Michael Hanna and Mr Justice Daniel O’Keeffe concurring.
Judgment
The trial judge had adequately explained to the jury, following requisitions by defence counsel, the meaning of the burden of proof in relation to the mental element in the offence, and leave to appeal was refused.
Background
The applicant was convicted of four charges relating to the possession of cocaine. This followed her arrest on December 18th, 2009, at Dublin airport, where she was found to be carrying 3.16 grams of cocaine in her suitcase, valued at €210,119.
She told a Customs officer that her flight had been booked by a friend, as was her hotel room in Dublin. She said she could not explain the presence of cocaine in her suitcase. The drugs were found by the Customs officer cutting open the back of the suitcase.
She said she had been in Senegal and Gambia with a friend called Mike who introduced her to his friends, one of whom gave her a bag to carry. She was to meet Mike in Dublin.
In an interview with a garda following her arrest, she said she was supposed to bring gold dust to Dublin, not cocaine. She met a Gambian woman and a German man who told her she would get €2,500 and pocket money to bring a suitcase with gold dust to Dublin.
She said at all times she believed she was carrying gold dust.
Section 29 of the relevant Act provides that it is a defence to the alleged offence of possession of a controlled drug for the defendant to prove that he neither knew nor suspected nor had any reason to suspect the existence of some fact alleged by the prosecutor.
Section 15A of the Act states that a person should be presumed, unless the court was satisfied to the contrary, to be in possession of a controlled drug for sale if it was of a quantity that it would not be for immediate personal use.
Counsel for the applicant claimed that section 29 was not adequately explained to the jury at the outset of the case.
No distinction was drawn between “beyond a reasonable doubt” and the burden on the prosecution to eliminate any reasonable doubt.
In his charge the trial judge told the jury: “What she has to do is to give sufficient evidence to demonstrate a doubt that she did not know and had no reasonable grounds for suspecting that what she had in her possession was a controlled drug . . .
“That burden cast upon the accused is discharged if her defence, her evidence, proves a reasonable doubt and no more than that on the issue.”
After a period of deliberation, the jurors returned with two questions for the trial judge that exemplified the absence of clarity in their minds, and sought an explanation of recklessness in relation to section 29.
The judge recharged the jury on this issue, explaining that if her evidence raised a doubt in the mind of the jury, she was entitled to the benefit of that doubt.
Following submissions from the applicant’s counsel, he further clarified this point.
Counsel for the applicant submitted that the overall effect was to leave the jury under the misapprehension of a legal burden being placed on her to raise evidence to disprove guilty knowledge.
The term “sufficient evidence” created the impression she had an obligation to produce evidence rather than raise an issue.
Counsel for the DPP stated that the trial judge’s exposition of the law was correct.
Decision
The court stated that following questions raised by the defence counsel, the trial judge had dealt with the issue and terms of the applicant giving “sufficient evidence” to raise a reasonable doubt.
He had made it clear that if the applicant’s evidence raised a doubt, she was entitled to the benefit of that doubt. He made the nature of the burden of proof clear in his responses to the defence requisitions.
The court was satisfied that any lack of clarity in the original charge was appropriately rectified by the judge dealing with the requisitions to counsel’s satisfaction.
The jury could be in no doubt that if on the evidence a reasonable doubt as to whether the mental element in the offence had been established, it was obliged to acquit. Leave to appeal was refused.
The full judgment is on courts.ie
Conor Devalley SC and Cathal McGreal BL, instructed by Philip Hannon solicitors, for the appellant; Damian Colgan BL, instructed by the Chief Prosecution Solicitor, for the DPP.