Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- John Gallagher

Neutral Citation: [2006] IECCA 110


Court of Criminal Appeal Record Number: 186/02

Date of Delivery: 28 July 2006

Court: Court of Criminal Appeal

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Observation of the container in the compound continued round the clock and at approximately 1:15 p.m. on 16th November, 2001 a lorry tractor unit with trailer entered the compound and the customs officers observed the forty foot container being loaded onto the trailer. At approximately 1:30 p.m. the trailer left the container compound and surveillance or observation of the tractor unit with its load was taken over by members of the Garda National Drugs Unit. There was evidence given by the lorry driver of that tractor unit as to how he had been engaged by the freight company for whom he worked to collect the tractor unit from the Eucon container compound and deliver it to a consignee in Portarlington. The address for delivery was in fact a car park in a shopping or business centre, known as Emerald Square, in Portarlington. The professional lorry driver, who is not alleged to be involved in any way in the offence, had on one previous occasion delivered a container to the same person at the same location. On that first occasion when he arrived in the car park in Portarlington the consignee was there and told the lorry driver that he would unload the container straight away. The lorry driver remained in the car park while the container was being unloaded so that he was able to bring the empty container away with him without having to return to collect it on a later occasion. He observed that the container contained a consignment of doors. On the second occasion, the occasion involving the container which contained the consignment of doors with the hidden quantity of cannabis, he arrived in the same car park, following the same instructions. He arrived at the car park at approximately 3:00 p.m. and was told that since it was a much bigger load it could not be unloaded straight away and that he should come back the following Sunday to collect the empty container. This he agreed to do and he left. He was at the car park for approximately 30 minutes on that occasion and the only person to whom he spoke was the person who identified himself as Mr. Whelan.

The lorry with the container had been followed and monitored by Detective Gardaí from the time it left Dublin Port. When it arrived at Emerald Square, Portarlington, at approximately 3:30 p.m. the handover of the container by the lorry driver to the man identified as Mr. Whelan was observed by the Gardaí. From then on the Gardaí kept the container under observation from concealed positions. The Garda evidence recounted how Mr. Whelan examined the rear of the container and the seal on it. It was also stated that another man came to the scene, later identified as a Mr. O’Mahony, and became involved in moving a forklift truck in the vicinity of the container and in the company of Mr. Whelan. Later at approximately 6:00 p.m. a Jeep arrived with two men in it. The passenger of this Jeep drove the forklift away and he was followed out of the car park by the Jeep. The forklift was brought back later by the same man followed by the Jeep. The forklift driver then left in the Jeep with its driver. The Garda evidence also recounted how between 7:30 p.m. and 8:00 p.m. a red-bodied Daf truck arrived. It was driven by the applicant, Mr. Gallagher. The container had not been opened at that stage. The applicant got out of the truck and spoke to Mr. O’Mahony. The Gardaí had observed that Mr. O’Mahony was having great difficulty in getting the forks of the forklift to operate and Mr. Gallagher appeared to be giving him assistance in endeavouring to get it to work. This was all prior to the doors of the container being opened. Shortly afterward the door of the container was opened by Mr. O’Mahony with the use of a bar which he used to break the metal seal. The applicant was present and assisting when this occurred. They were the only two men present at the time. This was between 8 and 8:30 p.m. After the container was opened another man arrived on the scene later identified as Jason Howe. He spoke to both the applicant and Mr. O’Mahony. After a period Jason Howe left the scene leaving the applicant and Mr. O’Mahony alone. At this point the container was open and the cargo of doors was visible. Following that Mr. O’Mahony, helped by the applicant, removed the loose doors which were at the front of the container onto the ground. When this was done Mr. O’Mahony got into the container and lay on top of a pallet with his leg dangling toward the exit. Having looked at what was in the rear of the container Mr. O’Mahony got down from the truck, he went to the forklift and drove it to the rear of the container. Helped by the applicant Mr. O’Mahony loaded the loose doors from the rear of the container onto the forklift. Mr. O’Mahony had difficulty in manoeuvring or handling the forklift and at one point some doors fell off it. Then Jason Howe returned and began directing Mr. O’Mahony where to manoeuvre the forklift. In moving the forklift with the doors in the car park the forklift became stuck in some soft ground. The applicant was then seen manoeuvring his Daf truck, attaching a rope to the rear of the forklift and endeavouring to pull the forklift free of the position where it was stuck. He failed at his attempt to move the forklift. Then Mr. Whelan returned with a white coloured van and he attempted to pull the forklift out of its stuck position with a rope attached to the van. The wheels kept spinning on his van and he had no success. It was now about 9:15 p.m. The four people there, that is to say, the applicant, Mr. O’Mahony, Mr. Howe and Mr. Whelan walked towards the container and Mr. Whelan shut the left hand door of the container. It appeared that at this point they had decided to abandon, at least for the time being, their plan to unload the contents of the container. At this point Detective Garda Collier, who had observed all that had happened, communicated by radio to his Garda colleagues who then arrived on the scene.

Detective Sergeant Watters and colleagues arrived in the car park at approximately 9:20 p.m., 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.

Statements
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 the 18th November 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 Court will come later to the issues raised on behalf of the applicant in relation to the admissibility of the notes of these interviews but for present purposes it is sufficient note that the notes made of each of the interviews and signed by the applicant were placed before the jury. In the first interview the applicant told the Gardaí how he had been approached by a man, whose name he said he did not know, at about 4:30 p.m. on Friday, 16th November, 2001 and asked to do a “nixer” by doing a run to Portarlington and for which he would be paid £150.00. He agreed to do this and drove off to Portarlington, using his employer’s lorry (unknown to his employer), a red Daf truck. He explained how later in the journey he received mobile telephone calls telling him where exactly he was to go. He arrived in Portarlington and parked beside a Texaco filling station. From that point he followed a red Mondeo car which led him to the Portarlington Business Park. When he arrived there he saw the container, already referred to, parked there with a man, whom he did not know, at the rear of container trying to fix a forklift. He was told that there was trouble with the forklift. He explained how after an hour they got the forklift going and the other man then proceeded to try and open the back door of the container. The applicant told how he got a bar from his own lorry and he helped this man to try and lever-open the sealer on the container. At this point he told the Gardaí “the two of us levered the sealer open. I began to smell a rat then as your man had no legitimate way of opening the container, the whole set was wrong”. He also described the circumstances in which the back left wheel of the forklift sunk up to its axle in soft ground and how he tried to pull the forklift out of the hole with his lorry but that the rope snapped. He then described how, after failed attempts to get the forklift going again, those present decided to stop the operation and shortly after the Guards arrived on the scene. His statements to the Gardaí in this interview were generally exculpatory in that he maintained that he only suspected that there was something “very dodgy” about what was going on when they had difficulty in opening the seal on the container. It is common case that insofar as the applicant’s foreknowledge that the container contained a consignment of illicit drugs was concerned that his statements in the first six interviews were exculpatory. In his final and seventh interview with the Gardaí, specifically Detective Garda Patrick Kirwan and Detective Garda Darragh O’Toole, he admitted that the man who first approached him did so on the Thursday evening prior to the trip to Portarlington on the Friday and that he was told that a truck was needed to pick up two pallets one of which contained hash. When asked what he meant by hash he said cannabis. He said he was offered £500.00 for this operation and his role was to bring two pallets back to Dublin, one of which would be a pallet of hash. He 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.

“Possession”
The first and second grounds of appeal relate to a question as to whether on the evidence tendered by the prosecution, the applicant could have be to 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, Mr. Gallagher, 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. These terms or descriptions relied upon by counsel related to such matters as the evidence of a Customs and Excise officer 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. That was a reference to one of the Garda members whose duty is was to follow and monitor the movements of the truck on its journey. Another example of the terminology relied upon by counsel is where one of the Garda witnesses agreed, when it was put to him in cross-examination, 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. On this basis it was claimed that neither the applicant nor those with whom he was involved in endeavouring to unload the drugs from the container in Portarlington could be considered, in law, to have had possession of the drugs at any material time.

Words such as “custody” and “dominion” may have certain meanings, as terms of art so to speak, in law as applied to certain situations. However, the witnesses were not giving evidence as to law but evidence of the facts and circumstances as to what occurred from the moment when the container was first inspected, taken away and returned to the compound for collection by its importers and its subsequent journey to the point of delivery in Portarlington. The words or terminology used by a witness cannot of themselves alter the objective factual situation and it is essentially to that to which the learned trial judge and the jury had to have regard. The essence of the facts, as set out above, as to what happened to the container from the moment it was first inspected to the moment when the four men, including the applicant, were arrested was not in dispute. These facts, to recall them briefly, were that the Customs authorities, having found drugs to be in the container took possession of it and removed it to one of their own compounds for a further detailed examination and inspection. This having been completed they returned the container to an appropriate location in the compound so that it was available for collection by those who had arranged for its importation. At that stage they had released it from their possession. Undoubtedly it was kept under continuous surveillance. It is quite obvious that when the Customs and Excise officer says he transferred “custody” of the container to a Garda member, he was referring to the simple fact that when the container left the compound it then came under the surveillance of the Garda members of the National Drugs Unit who now had operational responsibility for the criminal detection operation taking place and that Customs and Excise had no further responsibility in that respect. The Garda operation consisted of following and monitoring the route of the truck with a view to detecting those involved with the drugs at the end of the line. They had information that it was destined for Portarlington but it is quite evident they could not be sure that it would not be diverted to some other destination or that there might be some intervening event on the way, hence the need for continuous surveillance. At what point they intervened to arrest persons in connection with any offence was always going to be an operational matter depending on developments. In the event, as has been outlined above, the container was delivered to the car park in Portarlington. It was handed over to Mr. Whelan and the lorry driver left. Then Mr. O’Mahony appeared on the scene and not long afterwards the applicant followed by the arrival later of the fourth man, Mr. Howe. The seal on the container had been broken open. There was ample evidence before the jury for them to conclude that the Daf truck, driven there by the applicant, was there for the purpose of taking away the load, including the drugs in the container. Attempts were made to unload the container. At the point when the four men appeared to have abandoned their attempt, at least for that time, the Gardaí moved in and arrested them.

These are the objective facts and circumstances which were laid in evidence before the jury and it is in that context that the question of “possession” must be considered.

Counsel for the applicant relied, as indicated above, on the words used by Mr. O’Leary of the Customs and Excise that he handed “custody” of the container over to the Gardaí and that it was always in his mind that the container was in his custody and subsequently in the custody of the Gardaí. He also relied on words used by Garda witnesses such as ‘custody’ and ‘dominion’.

On the basis of the facts of the case, counsel for the applicant submitted that from the moment when the Customs and Excise authority seized the container, and in particular the drugs, they remained in the control, custody and dominion of the Customs in the first place and the Gardaí subsequently right up to and including the time when the applicant and other men were arrested. Once the drugs left the Port the Gardaí were in a position at any moment in time to seize or take control of the container and drugs given the close surveillance which they maintained on it. Accordingly at the time when the four men, and in particular the applicant, came on the scene in the car park in Portarlington up to the time when they were arrested they could not have had possession, in law, of the drugs. Accordingly the learned trial judge should have withdrawn the case from the jury. 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. That is to say that even if he was in possession of the drugs as a matter of fact he could not in law be considered in possession because the Gardaí were exercising control over the container of drugs. 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 (C.C.A. [1972] N.I. 153), Minister for Posts and Telegraphs -v- Campbell [1966] I.R. 69, and Haughton –v- Smith [1975] AC 476.

As regards R. –v- Whelan that was a judgment of Lowry L.C.J. of the Court of Appeal in Northern Ireland. That is 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. In his judgment Lowry LCJ. pointed out that:

“Every argument of logic and common sense would indicate that there was a very strong case that at least one of these men was in possession of this gun … It appears to the Court however that this is a case which could well be approached on the basis that guilt existed in the alternative, that is to say, that one, or possibly two, of these men might have been guilty while the remaining two or one, as the case may be, were or was innocent of the offences … and that the difficulty, in fact the impossibility, of laying the blame conclusively at the door of one accused is not a warrant for permitting or inviting a finding of guilty against each of them.”

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 provision states that “no goods shall be regarded as having continued to be stolen goods after they have been restored to the person from whom they were stolen or to other lawful possession or custody …”. 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 this 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 Justice 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. In holding that the District Justice was correct in having doubts concerning the evidence Davitt P. stated:

“In my opinion a person cannot, in the context of a criminal case, be properly said to keep or have possession of an article unless he has control of it either personally or by someone else. He cannot be said to have actual possession of it unless he personally can exercise physical control over it; and he cannot be said to have constructive possession of it unless it is in the actual possession of some other person over whom he has control so that it would be available to him if and when he wanted it. Normally speaking, a person can properly be said to be in possession of the contents of his own dwelling-house, but only if he is aware of what it contains. He cannot properly be said to be in control or possession of something of whose existence and presence he has no knowledge.”

“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.”

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 Misuse of Drugs Act, 1977, as amended. There is no need for such a definition to be in the Act. The word “possession” is a common word of the English language and well-known to the law. There are many offences concerning unlawful possession such as those relating to firearms, stolen goods, pornography, lethal weapons, etc. It is a term which may indeed require particular analysis in certain contexts such as where there is an issue of constructive possession. In this case the context is plain. It is one of actual possession. Possession having been taken of the container on delivery the men in question opened it and proceeded to unload its contents, which was only partially successful, with a view to their transfer to the Daf truck for onward delivery. 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 does 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. Neither at any stage did the drugs in question lose their illicit status. Surveillance operations based on information and intelligence are part and parcel of policing techniques and it would be ludicrous to suggest that such surveillance operations, which closely monitor illegal activity with a view to arresting the culprits, could in some way exculpate such culprits from responsibility for their actions and in particular mean that they did not have possession of that which was de facto in their possession.

That being the position the Court also finds that there is no basis for suggesting that the learned trial judge should have given a direction to the jury other than that which he did give on the question of possession.

This ground of appeal is refused.

The admissibility of the statements
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 heroine 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 member that he could be detained for up to five days. The applicant said five days and Detective Garda Kirwan said that, as a matter of standard practice, he had informed the applicant at one point that he could be detained for seven days as that was the period for which he could be detained in law in respect of the offence on which he had been arrested. This statement, it was claimed, was made with a view to putting pressure on the applicant and was made sometime prior to the final interview in which he made his inculpatory statements.

The second ground on which an issue was raised concerning the admissibility of the statements at the trial is 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, namely that the statements made by the applicant were not voluntary but were made in circumstances so oppressive that his will was sapped due to pressure and withdrawal symptoms, 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 Garda members who interviewed the applicant, the relevant Garda members 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 who is a drug addiction counsellor in Cuan Mhuire, Bruree, Co. Limerick and Dr. Peter Troy.

The issue as to whether the applicant was suffering from withdrawal symptoms as a result of being denied access to heroin to such a severe extent as to render any of his statements involuntary and inadmissible involved, in the first instance, questions of fact for the trial judge. As regards the interviews themselves the learned trial judge found:

“On the second day the interviews are relatively short and there are reasonable intervals between the statements, particularly between the fourth and fifth statement or interviews where there is an interval of about an hour and a half. The conducting of the interviews themselves cannot be said by any reasonable-minded person that they were conducted in any oppressive manner”.

“… there is not any evidence in reality which would substantiate any view that the words were said by way of an inducement to him to make a statement or as a threat as to the reasons as to why he shouldn’t remain silent, for instance, that he was not threatened with a further five days detention or induced that he would be released and for that reason he made a statement. In my view this was not intended as an inducement or as a threat and it was not interpreted as such at the time by the accused as being an inducement or a threat. It was, in my view, a communication by the Garda of the legal position of the accused’s detention …”

“Sister Agnes Fitzgerald has quoted from literature supplied to her as to the symptoms of heroin withdrawal and according to this literature such symptoms include yawning, tears, running nose, sneezing, tremors, headache, sweating, anxiety, irritability, insomnia, loss of appetite, nausea, vomiting, diarrhoea, cramps and muscle spasms. Sister Agnes went on to say that not everybody suffering from withdrawal would have all the symptoms and that of course, I accept that as a matter of common sense, but the accused did not have most of the symptoms and in particular he did not have any sweating or tremors, which Dr. Morar said he specifically found were absent. The only symptoms that Dr. Morar found were cramps and anxiety and in fact they were not symptoms that he found clinically but these were symptoms that were related to him, certainly the cramps and anxiety. The doctor found no signs of delusion or incoherence and in the doctor’s view at that point, the accused was fit to be questioned. He gave Mr. Gallagher medication and in particular Xanax and Keral with directions that they were to be taken no more frequently than once every eight hours. The Xanax was to treat the anxiety, which he said is a commonly prescribed drug and is similar in its effects to Valium. Keral was given because he hadn’t any Difene and Keral was to work as an anti-inflammatory painkiller. Now there is no hard evidence adduced by either side that after that point the accused was more indisposed than he was on that occasion. The doctor was never called again; he never complained again of muscle cramps and from his general demeanour and conduct afterwards there is nothing to leave me to suppose that he was seriously ill after the doctor visited him. The tablets did work; well at least we know they worked at 5:30 a.m. the following morning when he was able to get some sleep and settle down after he had taken the tablets, and the other symptoms of heroin withdrawal that he was manifesting, possibly, was insomnia. With the exception of anxiety, stomach cramps and insomnia he was manifesting no symptoms of heroin withdrawal … He ate a hearty breakfast the following morning and Dr. Troy’s view is that it is most unlikely and inconsistent. Now the doctor says that the question of withdrawal, heroin withdrawal and the symptoms of it do not vary from individual to individual but they vary in degree. Now the accused may or may not have been withdrawing from heroin but I am quite certain that whatever he was suffering from or to whatever extent he may have been suffering from heroin withdrawal it is not to any extent such as would have sapped his free will or undermined his ability to decide to make a voluntary statement or to render that statement unreliable, or to lead me in anyway to say that his condition would render it unfair to rule that this statement should be excluded, or that the statement was other than voluntary.

He was quite well able to make the statement. His conduct, very shortly before the statement, such as telephone calls to his sister and a fifteen minute call to his girlfriend show nothing to indicate that his mind was in anyway affected so as to make him unable to make a judgment as to whether or not to make the statement. I am satisfied that he was not suffering from heroin withdrawal to such an extent that his mind was affected so that I should exclude the statement. So, for these reasons, I rule that the statements, all of them, are admissible in evidence.”

The Court wishes to add that, in submissions, counsel adverted to the evidence that Dr. Morar had altered his medical report shortly before giving evidence in the voire dire at the trial. Dr. Morar had, it appears, provided the Gardaí with a medical report subsequent to his examination of the applicant in the Garda station. When it transpired that he was to be called to give evidence in the voire dire he was given a copy of the report and apparently he added a question mark after a note in the report which said “withdrawal symptoms”. Dr. Morar’s explanation was that at the time of his examination and when he made the report he intended and meant “withdrawal symptoms”: query. Quite wrongly, he thought it was appropriate to correct the written report in this respect to express what he had originally intended to say. When the relevant Garda witness was asked about it he deprecated the alteration that was made and said that he would not have allowed the doctor near the report if he thought he was going to alter it in any way. This question was not pursued any further, and, it would appear that there was not much scope for doing so. In particular circumstances the altering of a document such as a medical report could have a grave import. However in this case it is quite clear that nothing really turned on this matter. It was fully teased out, so far as it went, in front of the trial judge who was at that point sitting without the jury for the purposes of the voire dire. He was in a position to fully take into account and assess all this evidence when coming to his decision and consequently the Court is satisfied that there is no adverse conclusion to be drawn from this matter concerning the correctness of his decision on admissibility.

Accordingly for all the reasons outlined above this ground of appeal is not well-founded.

As regards the second ground, the first thing which the Court wishes to emphasise is 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 has 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 has refused to consider as a valid ground of appeal a point of law not raised at the trial save in exceptional circumstances. There are no exceptional circumstances here. It is not generally open to an accused to refrain from objecting on a particular ground to the admissibility of evidence and then raise it on appeal if there has been a guilty verdict. 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 is always a matter of law to be ruled on by the trial judge if the defence object to the evidence. This was not done and for that reason alone the Court considers that this ground of appeal should be refused.

In any event, it is important to note that when the applicant himself gave evidence on two occasions, first of all in the voire 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.

Counsel for the D.P.P. submitted that all of the applicant’s exculpatory explanations and denials of criminal involvement were accurately recorded as were his inculpatory statements. The memoranda of interviews were read back over to the applicant and he assented to their contents. An examination of the applicant’s own evidence in the transcript, and that of the Gardaí, shows that this submission appears to be well-founded.

In any event at no stage was the trial judge asked to rule any of those statements inadmissible on the grounds that they were selective, incomplete or otherwise unfair to the applicant (other than the oppressive circumstances referred to above). In the circumstances the Court concludes that this ground of appeal is ill-founded and discloses no basis upon which the verdict could be set aside.

Insofar as the defence raised the issue of unfairness based on the manner in which the relevant Garda witnesses had prepared the memoranda of the interviews it did so, not, as has been pointed out, before the trial judge on a question of admissibility, but solely before the jury by way of inviting them to treat the memoranda as unfair and therefore unreliable. It was entirely and solely a matter for the jury to decide what weight they would attach to the memoranda. In his charge to the jury the learned trial judge perfectly fairly drew this aspect of the defence case to their attention. He also gave a correct direction to the jury on the burden of proof placed on the prosecution. Moreover, although the defence made a number of requisitions to the trial judge following his charge to the jury there was no requisitions to him on these aspects of his charge, which in itself is a ground for refusing an appeal criticising a charge. In the circumstances no special warning, as claimed by the applicant, was required to be given to the jury.

For the reasons set out above the Court refuses leave to appeal against conviction.