People (Director of Public Prosecutions) (respondent) v. John Gallagher (applicant)
Criminal law - Drugs Offences - Evidence - Whether prosecution had established possession of a controlled substance - Whether the trial judge had misdirected the jury as to the definition of possession - Whether statements made involuntary and inadmissible - Misuse of Drugs Act, 1977s.15A (1) - Criminal Justice Act, 1999 s. 4
Court of Criminal Appeal (The Chief Justice, Mr Justice Murray, Mr Justice O'Neill and Mr Justice Gilligan); judgment delivered July 28th, 2006.
The word "possession", as contained in the Misuse of Drugs Act, 1977, was a common word in the English language and well-known to the law. It required no special direction to be given to a trial jury. A trial judge as the primary arbiter of fact was entitled to take the view after a voir dire that statements contained in memoranda of interview to Gardaí had been voluntarily made. An applicant seeking to impugn evidence admitted at trial who had failed to object to its admissibility during the proceedings was not entitled to succeed on appeal in the absence of such objection.
The Court of Criminal Appeal so held in refusing the application for leave to appeal against conviction by the applicant.
John Phelan SC, Charles Corcoran BL for the applicants; Patrick J. McCarthy SC, Alex Owens SC, Will Fennelly BL, for the respondent.
The Chief Justice, Mr Justice Murray, delivering the judgment of the court said that the applicant, John Gallagher, was convicted at the Circuit Criminal Court on October 11th, 2002, of the offence of possession of a controlled drug for the purpose of selling or otherwise supplying same to another contrary to s. 15A(1) of the 1977 Act, 1977 as inserted by s. 4 of the Criminal Justice Act, 1999. The offence was stated to have been committed on November 16th, 2001, in Laois and concerned a quantity of cannabis with a market value in excess of €12,697 (£10,000).
Mr Justice Murray said that the grounds of appeal, could be summarised as follows:
(a) The evidence tendered and relied upon by the prosecution did not establish that the applicant had ever been, as a matter of law, in "possession" of the drugs in question.
(b) The learned trial judge misdirected the jury on the definition of possession, and in particular failed to direct them to "apply the most beneficial definition of that word or concept in law".
(c) The learned trial judge erred in law in failing to hold that the memoranda or statements taken from the accused were inadmissible in evidence having regard to his condition and period of detention which rendered them involuntary.
(d) The learned trial judge erred in law in admitting memoranda or statements arising from interviews of the applicant by the Gardaí having regard to the selective contents of the interviews and in failing to warn the jury adequately as to the inherent dangers of relying on such memoranda or statements in such circumstances or in circumstances where the full content was not recorded.
Mr Justice Murray said that on October 13th, 2001, a Customs and Excise Officer, was on duty at Dublin Port and removed a shipping seal from a 40 foot metal container in the compound, opened it and on initial examination found a number of loose wooden doors near the opening and a number of pallets containing doors and door frames behind them. On further investigation it was found that the centre of the doors on a significant number of pallets had been hollowed out and packed with slabs of herbal cannabis. They were to be valued in the region of €1 million. Subsequently, on November 15th, 2001, the container was brought back to the Eucon container compound and kept under observation by Customs and Excise officers. It had been resealed with a shipping seal which is a metal seal which can only be opened with bolt-cutters or similar instrument.
Mr Justice Murray said that observation of the container in the compound continued round the clock and at approximately 1.15pm on November 16th, 2001, a lorry tractor unit with trailer entered the compound and the customs officers observed the 40 foot container being loaded onto the trailer. Mr Justice Murray continued to summarise the facts and said that the lorry with the container had been followed and monitored by detective gardaí from the time it left Dublin Port and that detectives arrived in the car park at approximately 9.20pm, having been alerted by their colleague, and the four men present at the container were each detained by a different member of the Garda Síochána for the purpose of searching them. Having confirmed that there was still a large quantity of cannabis in the container the four men, including the applicant, were arrested at taken to Tullamore Garda Station.
Mr Justice Murray said that during the course of his detention in Tullamore Garda Station the applicant was interviewed on numerous occasions during his period of detention. It appears that he was released on November 18th at 9:15 p.m. and then immediately rearrested and charged with the offence concerned. The first interview occurred on the day following his initial arrest. The gardaí made written notes of questions put to the applicant and his answers to them. As was also the case in respect of six other interviews the notes of the interview were read over to the applicant, he acknowledged that he had been invited to make any additions or alterations to them and that he was satisfied with the notes and appended his signature to the bottom of them. It was common case that there was no video recording system available or installed in that Garda station at that time. The applicant had told the gardaí that he was a drug addict with no money and that was why he thought he was approached to do the job. The notes for all of these interviews were placed before the jury.
Mr Justice Murray said that the first and second grounds of appeal related to a question as to whether on the evidence tendered by the prosecution, the applicant could have been, in law, in possession of the drugs at the time when he was arrested and whether the learned trial judge gave a correct direction to the jury on the meaning of possession. In support of his argument that the applicant could not have been considered in law to have been in possession of the drugs on the occasion in question, counsel for the applicant first of all relied on the fact that the Customs and Excise authorities had initially taken the container, with the drugs, into their possession in the exercise of their statutory powers before returning it to its place in the compound. Counsel then relied on the fact that from that time on the container was kept under strict surveillance first, by the Customs and Excise officers, and then by the gardaí when it left the compound until the arrests were carried out in the business park in Portarlington. It was submitted that since the container, with its drugs, was at all times under such surveillance that it was in the custody and control of the authorities and therefore the applicant and, indeed, the other men arrested with him, could not in law be considered to have been in possession of the container or the drugs at any time. In support of this argument, counsel also relied on certain terminology used by the witnesses from the Customs and Excise and the gardaí when they were describing in their evidence in court the course which the container took from the time it was collected in the compound to the time of the ultimate arrest of the applicant, that he had "transferred custody" of the container to a particular garda member when the lorry with the container left the compound in the port en route to Portarlington or that he had "custody and dominion" over the container while it was being moved and followed on its way to Portarlington. According to counsel such descriptions of their role by the State witnesses demonstrated that they had at all times custody and possession of the container with the drugs in it.
It was the submission of counsel that the trial judge ought to have done so irrespective of any evidence as to the knowledge of the applicant that there were drugs in the container and that he proposed to transport them from the car park to another venue. As counsel put it, in that context, the applicant was innocent in spite of himself. In support of his argument counsel pointed out that there was no definition of possession in the Misuse of Drugs Act, 1997 and he relied upon R.v Whelan (CCA NI 153), Minister for Posts and Telegraphs v Campbell IR 69, and Haughton v Smith AC 476.
Mr Justice Murray said that as regards R. v Whelan that was a judgment of Lowry LCJ of the Court of Appeal in Northern Ireland. That was a case in which the police in Belfast had raided a house occupied by 14 people and in a small room upstairs the three accused were found in three different beds. On searching the room the police found a revolver and some rounds of ammunition on the top of the chest of drawers. These were covered by the men's clothing. The three accused were the only adult males in the house. Each denied possession of the firearm and ammunition. Other than the fact that the three men were in the room there was no evidence that any of them had either together or individually done anything or committed any act in relation to them. Mr Justice Murray said that that was clearly an entirely different case to the present one. It turned simply on the absence of any evidence that any particular one of the three men was in possession of the firearm or any evidence that they in some way had joint possession.
As regards the case of Haughton v Smith it could not be said from any perspective to have any application to this case. Suffice it to say that it was a case in which the accused had been charged and convicted of attempting to handle stolen goods even though the prosecution had conceded that at the time of the alleged offence the goods, being in the lawful custody of the police, had ceased to be stolen goods by virtue of s. 24(3) of the Theft Act, 1968 in the United Kingdom. That case turned on the application of that provision of a foreign statute concerning stolen goods, it involved no principle of common law concerning a definition or meaning of possession that has any relevance to the instant case.
The Minister for Posts and Telegraphs v Campbell concerned a District Court prosecution against the defendant for possessing a television set without having the appropriate license. The only evidence tendered on behalf of the complainant was that an Inspector for the Department called at a cottage and, having spoken to a woman there (not the defendant), entered and found a television set standing on a table. No license had been issued in respect of a television set in the name of the defendant. A certificate of valuation showing the defendant as the occupier was relied on to prove that it was the defendant's house. The district judge being of the view that it was doubtful as to whether there was sufficient evidence to establish that the defendant (who did not appear before the District Court) was in possession of the television set stated a case for the High Court. Davitt P. stated:
"Assuming, for the sake only of the argument, that the evidence established that the cottage was the defendant's dwelling-house, there is in this case no evidence as to how the television set came to be there, how long it was there, or whether the defendant was ever at any time aware of its presence or existence. There is therefore no evidence that it was ever actually in his control or possession. There is no evidence as to who was the woman who was present in the house on the occasion of Mr Brown's visit, or as to what was her relation, if any, to the defendant. There is nothing to indicate that he had any control over her actions. There are therefore no grounds for concluding that he had constructive possession of the television set. As far as the evidence goes, the set may have been placed in the cottage without his knowledge or consent."
That case turned on the absence of any evidence concerning possession or that the defendant had knowledge of the existence or presence of the TV set. In total contrast to the Campbell case what was absent in that case was present here. There was ample evidence before the jury as to how the container came to be in the car park in Portarlington.
Mr Justice Murray said that on the basis of the evidence placed before the jury, and obviously accepted by them, it must be as clear as a pikestaff that the men in the business park, including the applicant, had actual control and possession of the container and were engaged in a joint enterprise to open it and unload it so that the contents, including the drugs, could be put into the applicant's truck for delivery to Dublin. Counsel for the applicant says there was no statutory definition of possession in the 1977 Act as amended.
Mr Justice Murray said that there was no need for such a definition to be in the Act. The word "possession" was a common word of the English language and well-known to the law. There were many offences concerning unlawful possession such as those relating to firearms, stolen goods, pornography, lethal weapons, etc. It was a term which might indeed require particular analysis in certain contexts such as where there is an issue of constructive possession. In the instant case its context was plain. It was one of actual possession. In the words of Davitt P. above, they were exercising physical control over the container and its contents. There could not be a clearer case of actual possession. The fact that the Gardaí were involved in a close surveillance operation with a view to arresting those involved in the transportation and unloading of the drugs did not take away from these objective facts and does not in law mean that those involved did not at the time of their arrest have possession of the drugs in question. That ground of appeal was accordingly refused.
Mr Justice Murray said that as regards the third and fourth grounds of appeal referred to above, counsel for the applicant submitted that the statements made by him to the Gardaí as noted in the record of the several interviews which they had with him should not have been admitted as evidence to the jury on two grounds.
Firstly, because the statements and, in particular, his inculpatory statements, were not voluntary due to the fact that they were obtained in oppressive circumstances because the applicant, who was a self-confessed heroin addict, was suffering from severe withdrawal symptoms which meant that his "will was sapped" and that he was under pressure in the succession of interviews to make a statement admitting his knowing involvement in the operation in order to be released so that he could feed his addiction. This, it was submitted, was exacerbated by the fact that he was told by a garda that he could be detained for up to five days.
The second ground on which an issue was raised concerning the admissibility of the statements at the trial was the contention of the applicant that the memoranda of the interviews upon which the prosecution relied were made on a selective basis in that not all matters were recorded, "only mere summaries and synopsis". The fact that they were presented to the jury in that form deprived the applicant of a fair trial. The jury should have been warned of accepting such evidence or alternatively the memoranda of the interviews should not have been allowed to go to the jury.
As regards the first ground, this was the subject of a voire dire hearing by the trial judge in the absence of the jury. He heard evidence from all the gardaí who interviewed the applicant, the relevant gardaí in charge of the station, a doctor who came to the Garda station at the request of the applicant, examined him and prescribed medicine for him, as well as the applicant himself. In addition, the applicant called as a witness Sister Agnes Fitzgerald, a drug addiction counsellor in Cuan Mhuire, Bruree, Co Limerick and Dr Peter Troy.
Mr Justice Murray said that the court did not consider it necessary to review or recite in detail the actual evidence given by the various witnesses heard by the learned trial judge in the course of the voire dire. What was clear from a consideration of the transcript was that on any view of the evidence laid before the trial judge there was ample evidence which entitled him to make the findings of fact which he did.
As regards the second ground, the first thing which the court wished to emphasise was that at no stage during the trial was the admissibility of the memoranda of the various interviews objected to on the grounds that they were selective or incomplete. At the conclusion of the voire dire the submissions of the applicant's counsel concerning their admissibility was confined exclusively to the question of the alleged oppressive circumstances under which the interviews were conducted. At the conclusion of the case for the prosecution, counsel for the applicant applied to the trial judge to direct the jury to find the applicant not guilty on the grounds that the evidence in law was not sufficient to convict the applicant of the offence as charged. No reliance was placed on any question of the inadmissibility of the statements. At the trial proper, when the various Garda witnesses were called to give evidence of the interviews and the memoranda, no objection was made to the admissibility of this evidence. This court had on numerous occasions deprecated the raising of a ground of appeal against conviction at a criminal trial which has not been raised at the trial itself. In such circumstances this court had refused to consider as a valid ground of appeal a point of law not raised at the trial save in exceptional circumstances. There were no exceptional circumstances here. If there was anything unfair in the manner in which the applicant's interviews with the gardaí were recorded it was open to the applicant to raise that as a ground for questioning their admissibility and request the trial judge to rule on the issue after hearing any evidence relevant to it. The admissibility of evidence was always a matter of law to be ruled on by the trial judge if the defence objected to the evidence. This was not done and for that reason alone the court considered that this ground of appeal had to be refused.
In any event, it was important to note that when the applicant himself gave evidence on two occasions, first of all in the voir dire and secondly before the jury concerning those interviews, at no stage did he suggest or claim that anything set out in the memoranda of the interviews was inaccurate or unfair insofar as they noted what he had said, or that there was anything which was omitted from the memoranda which ought to have been included. On the contrary he, in effect, admitted that the notes were accurate and confined himself to maintaining that his admissions of foreknowledge of a drugs consignment were nonetheless untrue statements because he made them under the pressure and effect of his withdrawal symptoms. In the circumstances the court concluded that this ground of appeal was ill-founded and disclosed no basis upon which the verdict could be set aside.
For the reasons set out above the court refused leave to appeal against conviction.
Solicitors: Eugene Dunne & Co. (Dunboyne Co. Meath) for the applicants; Chief Prosecution Solicitor for the respondent.
• Elaine Fahey, barrister