A man jailed for possessing a suitcase full of cannabis will find out next Tuesday whether his conviction will be quashed.
Remigijus Tuma (32), with an address at Newlands Manor Park, Clondalkin, Dublin 22, but originally from Lithuania, pleaded not guilty to possessing €180,000 worth of cannabis for sale or supply at Kilakee Road, Rathfarnham, Dublin 15 on May 2nd 2008.
He was found guilty by a jury at Dublin Circuit Criminal Court and sentenced to seven years imprisonment by Judge Yvonne Murphy on June 16th 2011.
The Court of Appeal heard on Tuesday that Tuma had met two men and was bringing a suitcase, which was later found to contain the cannabis, through the Dublin Mountains to Bray for €500 on the occasion in question.
The court allowed Tuma to add a new ground of appeal to have his conviction quashed. His barrister, Hugh Hartnett SC, said the trial judge had imposed an inappropriate burden of proof on Tuma during the trial.
The judge had told the jury: ‘the burden is on the defendant to show he did not know and had no reasonable grounds for suspecting that what he had in his possession was cannabis’.
In drugs cases, the judge had said, the burden of proof switches to the defendant to prove ‘beyond a reasonable doubt’ that he did not know that what he had in his possession was cannabis.
In response to submissions by the Director of Public Prosecutions, Mr Justice John Edwards asked counsel how the DPP could not recognise a fundamental injustice.
The jury was told what had to be proved had to be proved to a higher standard than was the case, Mr Justice Edwards said.
Mr Hartnett said "the disease was apparent on the face of the patient" and the error was "blatant and flagrant".
Mr Hartnett, who did not represent Tuma during the trial, said the switching of the burden of proof was a difficult concept, even for lawyers but “clearly here things went wrong”.
He said it was a clear misunderstanding by all parties including the judge. It happened on four occasions, twice during the judge’s charge and twice during requests for clarification by the jury.
Mr Hartnett asked the court to consider whether justice appeared to have been done and added that Tuma’s “conviction must be quashed”.
Mr Justice George Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, said the additional ground should be allowed.
Mr Justice Birmingham said the court would accept the arguments made for allowing the additional ground as the substantive argument in the conviction appeal and reserved judgment until next Tuesday.