Irish Court of Appeal
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Cite as: [2015] IECA 178
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Judgment
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THE COURT OF APPEAL [312/10]
Bill No. [CY 22/09] The President Hogan J. Mahon J. BETWEEN THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT AND
CHRISTOPHER WIGGINS APPELLANT JUDGMENT of the Court delivered by the President on 31st July 2015 Background 2. The suspect vessel was identified as a result of confidential information supplied to the Irish Joint Taskforce on Drugs (“JTF”) by the Maritime Analysis and Operations Centre for Narcotics (MAOCN) in Lisbon, Portugal. 3. On 5th November 2008, the Naval Service vessel ‘L.E. Niamh’ observed the vessel and confirmed its identity as the ‘Dances with Waves’. A boarding party from the ‘L.E. Niamh’ boarded ‘Dances with Waves’ pursuant to Article 110 of the United Nations Convention of the Law of the Sea (UNCLOS) to ascertain its nationality. The occupants of the vessel were David Mufford, Philip Doo and Christopher Wiggins. 4. Philip Doo confirmed that the registration of the vessel had lapsed, but that he intended to re-register it at Liverpool. 5. A communication between the ‘L.E. Niamh’ and the JTF, and between the JTF and UK Customs clarified that the vessel had been de-registered by its previous UK owner in June 2008, and that it was not registered in any Convention state. Accordingly, on 6th November 2008, a decision was made to detain the vessel under s. 35 of the Criminal Justice Act 1994 (“the 1994 Act”). 6. The appellant and his two companions, Phillip Doo and David Mufford, were arrested under s. 34 of the 1994 Act, for using a ship for drug trafficking and subsequently detained under s. 2 of the Criminal Justice (Drug Trafficking) Act 1996. All three cooperated fully with the Gardaí and admitted their part in the drug trafficking operation. 7. Each of the three pleaded guilty to an offence under s.15A of the Misuse of Drugs Act 1977, as amended, and were sentenced at Cork Circuit Criminal Court on 8th May 2009 to 10 years’ imprisonment each. They were also charged with offences pursuant to s.15 of the Misuse of Drugs Act 1977, as amended, and offences pursuant to s. 34 of the 1994 Act, of using a ship for drug trafficking. A nolle prosequi was entered in respect of the latter two counts post-sentence. As will be seen, the central issue which arises on which this appeal is whether this Court should allow Mr. Wiggins to withdraw his plea of guilty and to permit him now to appeal against this conviction. 8. The appellant was originally refused leave to appeal the severity of the sentence on 8th May 2009, by the sentencing judge. The appellant and Mr. Doo subsequently made attempts to appeal their convictions, and it appears that the Court of Criminal Appeal informed them that they had to apply to the Court that sentenced them for leave to appeal. Accordingly, at a hearing on 26th April 2013, the sentencing judge was asked to grant leave to appeal the convictions of Mr. Wiggins and Mr. Doo. The prosecution’s view was that it was a matter for the trial judge and did not oppose the application and the judge extended time granted leave as sought. 9. The appeals of Mr. Wiggins and Mr. Doo were listed for hearing before this Court on 11th May 2015, but Mr. Doo withdrew his appeal on the day of hearing. Mr. Wiggins proceeded with his appeal and represented himself. Grounds of Appeal
Article 86 of UNCLOS states, inter alia: “The provisions of [Part VII] apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State.” This provision appears to extend to areas not included in (i) the territorial sea; (ii) the internal waters of a State and (iii) the exclusive economic zone. Article 110 UNCLOS is contained within Part VII of the said Convention and thus is encompassed by Article 86. Furthermore, Article 57, UNCLOS states: “The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.”
Section 33 of the 1994 Act(as amended) reads: “(1) A person is guilty of a drug trafficking offence if the person does, on an Irish ship, a ship registered in a Convention state or a ship not registered in any country or territory, any act which, if done in the State, would constitute such an offence.” 12. However, the term “drug trafficking offence” for the purposes of s. 33 is defined at s. 3 of the 1994 Act as, inter alia: “… (b) an offence under section 15 of that Act of possession of a controlled drug for unlawful sale or supply, ... (f) an offence under section 33 or 34 of this Act.” Preliminary Point
11. It is assumed, therefore, for the purpose of argument, that the appellant is submitting that he was improperly advised to plead guilty and is seeking to overturn his plea of guilty on that basis.” 15. Accordingly the first question this Court must investigate before embarking on an examination of the substantive grounds of appeal is the question of whether a guilty plea to the charge given some six years ago bars the appellant from now bringing an appeal against his conviction. The question of whether an appeal is barred is often intertwined with the substantive grounds of appeal. Why and in what circumstances was the guilty plea entered? 16. The appellant, by his own submission, pleaded guilty to a charge contrary to s. 15A of the Misuse of Drugs Act 1977 on foot of allegedly incomplete legal advices supplied by his previous legal teams. In this regard, the Court is invited to be cognizant of the fact that this matter was the first ever prosecution undertaken on foot of the enabling legislation which underpins the case and involves complex and unusual legal issues concerning aspects of both maritime and European law. It was submitted that the appellant ventilated his concerns and discontent at the earliest possible juncture by communicating same to his previous legal team and, later, to the State Solicitor for Cork. 17. It was submitted that, as the legal advice supplied to the appellant was incomplete and inaccurate, the said advice cannot reasonably be described as proper. Thus although the decision to plead guilty was that of the appellant alone, the decision to plead did not have its genesis in proper legal advice. Accordingly, the appellant’s plea of guilty cannot reasonably be described as an uninformed plea, the existence of which renders his conviction unsafe. 18. Mr. Wiggins has nor sworn an affidavit or put before the Court any documentary material to substantiate his submissions. The Law on the Preliminary Issue
22. It is clear that this Court has a jurisdiction to permit an appeal against conviction even following a guilty plea. Thus, in DPP v. Geasley [2009] IECCA 22, Fennelly J. delivering the judgment of the Court of Criminal Appeal referred to s. 32 of the Courts of Justice Act 1924, as amended by s. 3(6) of the Criminal Procedure Act 1993. Fennelly J. held “that this section is broad enough to encompass a right to appeal, or apply for leave to appeal, notwithstanding a guilty plea, in an appropriate case”. 23. The Court of Criminal Appeal considered this question in the cases of DPP v. Lynch (Unreported, 27th July 1999) and DPP v. B. [2002] 2 I.R. 246. Both cases were concerned with how the advice of counsel had influenced the accused in making his decision to plead guilty. In each case, the Court heard evidence of the circumstances surrounding the decision to plead. In the first, the appeal was allowed; in the second it was dismissed. These cases establish the principle that, in an exceptional case, a plea of guilty is not an insuperable bar to an application for leave to appeal against conviction. The advice of counsel was central to the argument in the two cases. 24. In DPP v. Lynch (Unreported, 27th July 1999) the defendant argued that his decision to plead guilty was made as the result of improper pressure placed upon him by his legal advisors. Barron J. found the fundamental issue was whether the appellant should in all the circumstances be allowed to change his plea and obtain a trial on the merits. The Court held that it had jurisdiction to consider the point, although on the facts the Court held, in dismissing the appeal, that counsel had behaved properly and had given correct advice. 25. In DPP v. B [2002] 2 I.R. 246, the defendant pleaded guilty to charges of rape, sexual assault and unlawful carnal knowledge arising out of an admitted incestuous relationship he had with his half-sister. At the time he entered his pleas of guilty, both he and his Senior Counsel, on whose advice he acted, were unaware of a number of statements which were not in the original book of evidence and also of one important exhibit, namely a form of diary kept by the complainant. The defendant sought to set aside his guilty plea in respect of the count of rape and the count of sexual assault, although he had already served his sentence in respect of the latter. The Court of Criminal Appeal held the convictions to be unsafe and ordered a retrial on the count of rape. It was held that in this unique case where, had Senior Counsel seen the documents, he would have advised differently and the applicant might have pleaded not guilty and have been acquitted, it would be unsafe to allow the conviction to stand. Giving the Court’s judgment, Geoghegan J. stated ([2002] 2 I.R. 246,251):-
29. Having accepted the test set out on in Geasley, the Court, in the judgment of Clarke J., found that the case fell outside the scope of the exceptional cases where a party can properly be permitted to appeal against conviction notwithstanding a plea of guilty, because even taken at its height, any such error in the trial judge’s rulings regarding the points raised could not be described as being a fundamental error of law. The Court of Criminal Appeal accordingly dismissed the appeal. The Substantive Grounds United Nations Convention on the Law of the Sea -UNCLOS 30. The chronology of events is described in the evidence of Detective Sergeant Foley at the sentence hearing and also in the book of evidence in the case to which the parties have referred. Relevant dates and times appear to be as follows in relation to the arrest and detention of the vessel and of Mr. Wiggins and his confreres:
6th November 2008: Some time shortly after midnight the vessel was detained. 7th November 2008, 9.30am: ‘Dances with Waves’ arrived in Castletownbere under arrest and then being manned by the Naval Service assisting Mr. Doo to bring the vessel into harbour. Mr. Wiggins was on board the Naval Service vessel. The Relevant Legislation
That was replaced by a new s. 33 inserted by s. 28(b) of the Criminal Justice (Illicit Traffic by Sea) Act 2003, as follows: “33-(1) A person is guilty of a drug trafficking offence if the person does, on an Irish ship, a ship registered in a Convention state or a ship not registered in any country or territory any act which if done in the State would constitute such an offence. (2) This section is without prejudice to s. 34 of this Act.” 33. The definition of drug trafficking offence which is contained in s. 3 of the 1994 Act, is as follows so far as relevant to the case: “(b) An offence under s. 15 of that Act of possession of a controlled drug for unlawful sale or supply” 34. A drug trafficking offence, as defined in s. 3(1) of the1994 Act, was amended by s. 7 of the Criminal Justice Act 1999 to include an offence under s. 15A of the Misuse of Drugs Act 1977 (as amended). 35. Section 34 applies to, inter alia, a ship not registered in any country or territory. The section makes it an offence for a person to be on a ship to which the section applies and have a controlled drug in his possession or to be knowingly concerned in the carrying or concealing of a controlled drug on the ship. Where the person knows or has reasonable grounds to suspect that the drug is intended to be imported or that it has been exported contrary to regulations which may apply to the law of this State and any other State. There is a mode of proof by certificate of the relevant law of another State if that arises. A person guilty of an offence under s. 34 is liable to a maximum term of imprisonment of seven years. This is one of the matters to which Mr. Wiggins refers because he was sentenced to ten years, namely, the presumptive minimum term of imprisonment for possession of drugs over €13,000 contrary to s. 15A. 36. Under the First Schedule of the1994 Act, enforcement powers in respect of ships are listed and they apply to a member of the Naval Service which is the relevant personnel here. Under Article 2 of this Schedule, an enforcement officer may stop a ship boarded, and if he thinks it necessary, require it to be taken to a port in the State and may detain it there. Sub-paragraph (2), that is Article 2(2) refers to a situation where an enforcement officer is exercising his powers with the authority of the Minister for Foreign Affairs in accordance with s. 35 of the Act - to which I will turn - the officer may require the ship to be taken to a port in the Convention state in question or to another country nominated by that State. The Schedule goes on to give further powers in respect of searching and obtaining information and dealing with suspected offences. 37. Turning now to s. 35, sub-section (1) confers the powers in the First Schedule on an enforcement officer (which includes an officer in the Naval Service) to be exercisable in relation to a ship to which sections 33 or 34 apply. For the purpose of this case, that is a ship not registered in any country or territory. The other applications are to an Irish ship or a ship registered in a Convention state. The troubling part for the DPP in this case is s. 35(2) and (3) the provisions of which may be summarised as follows. First Schedule powers cannot be exercised outside the landward limits of the territorial seas of the State in relation to a ship registered in a Convention state except with the authority of the Minister for Foreign Affairs and then only if the registration state has requested assistance and authorised it. That does not seem to apply in this case because ‘Dances with Waves’ was not registered in a Convention state and was not, in fact, registered anywhere because according to the evidence it had been deregistered by its previous owner. 38. To draw these provisions together in relation to the case, the situation is as follows. The Naval Service had reason to suspect that Mr. Wiggins and his co-accused were in possession on the vessel ‘Dances with Waves’ of a quantity of controlled drugs at a location outside the territorial waters of the State. Under s. 33 of the 1994 Act(as inserted by s. 28(b) of the 2003 Criminal Justice (Illicit Traffic by Sea) Act), a person is guilty of a drug trafficking offence if he does any act which, if done within the State would constitute an offence, on a ship not registered in any country or territory. The Naval officers who boarded the ship had powers under the First Schedule to stop and search the vessel and to arrest without warrant anyone whom they had reasonable grounds for suspecting was guilty of an offence mentioned in s. 33 or s. 34 of the Act. That meant that he suspected that the person was guilty of something that, if done in the State, would constitute an offence - see s. 33(1) as newly inserted. The restriction in s. 35(2) of the 1994 Act does not apply because ‘Dances with Waves’ was not a ship registered in a Convention state. 39. In light of this discussion and, having regard to the inclusion of s. 15A offences , in the definition of drug trafficking offence, it is clear that Mr. Wiggins’s second point could not succeed if his appeal were to be entertained. 40. In regard to the boarding of the vessel, the position is obviously a matter of some complexity. It appears to be at least arguable that issues arise, including whether the boarding of the yacht was in breach of UNICLOS Article 110; whether the Naval Service was authorised to board the vessel before it had a suspicion in respect of non-registration; whether the Navy’s suspicion, insofar as it was a different one from what is provided under Article 110, invalidated the boarding and subsequent events including the arrest of Mr. Wiggins, and whether any such irregularities were necessarily fatal to the prosecution or did the trial Court have a discretion. Discussion and Conclusion 42. Relevant to this appeal is an exchange that appears at p. 19 of the transcript when counsel for Mr. Wiggins asked the following questions and was answered by Detective Sergeant Foley as follows: “Q. And he’s 43 years of age and had reached that stage of his life without getting into any difficulty at all. Just in relation to the saving to the State, Detective Sergeant, by virtue of the plea entered by Mr. Wiggins and Mr. Doo and Mufford, I think, as Mr. Creed as fairly outlined, this is novel legislation. It has never been used before. Nobody has been prosecuted to date in this jurisdiction based on the State’s extraterritorial jurisdiction deriving from the Convention and the Criminal Justice Act 1994, and it was open to the accused to run various technical challenges, for instance, in relation to the boarding of the vessel under the United Nations Convention and perhaps in relation to the legislation and whether it is a perfect fit with the Conventions, but it has saved the State considerably that the accused haven’t taken that course and have decided to own up to their guilt. Would you accept that there is a saving to this?
Q: I think you saw earlier an apology to the Irish State that Mr. Wiggins has drawn up, and I’ll in due course be handing that into the judge but you wouldn’t have any comment to make, I think, one way or another on that? A: No. No, My Lord.” 44. The reference by counsel to a letter written by Mr. Wiggins to the State, in which he expressed his apology for the behaviour that led him to his position before the Court for sentence on this serious charge, is also relevant to the circumstances in which he came to plead guilty. 45. In Geasley [2009] IECCA 22, Fennelly J. said that:
47. These things did not give Mr. Wiggins any right to re-open the case and have a re-trial. In order to be permitted, at this long remove from the trial and his plea to resile from the formal and public acceptance of guilt that he expressed, Mr. Wiggins had to show by evidence some circumstance whereby his decision to plead guilty is invalidated by erroneous advice that he was given about the law or that was based on a mistake of fact and that such error would have made a material difference and that it would be unfair to deny him, even at this late stage, a trial on the merits. There is, however, nothing in the case to meet these criteria. It is not shown that he was given advice that was wrong in law or that there was any factual material that was misstated to him or any material circumstances that meet the requirements. 48. Mr. Wiggins has failed to demonstrate that by reason of being materially misled or misinformed as to facts or law such that he did something that he would not otherwise have done. This threshold is obviously high and Mr. Wiggins has not surmounted it. Of the two substantive points he puts forward, one is unfounded. The other could potentially have substance, but the matter was expressly referred to by his counsel in the course of the sentence hearing by way of mitigation. 49. This Court cannot now allow Mr. Wiggins to re-open his decision to plead guilty in circumstances where with full knowledge and appropriate legal advice he took that particular course in May 2009 and obtained the benefit of a reduced sentence following a plea in mitigation. It follows that Mr. Wiggins’s appeal must accordingly be dismissed.
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