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Cite as: [2010] IECCA 69

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Judgment Title: D.P.P.-v- Frits Huibregtse

Neutral Citation: [2010] IECCA 69

Court of Criminal Appeal Record Number: 194/09

Date of Delivery: 28/06/2010

Court: Court of Criminal Appeal

Composition of Court: Finnegan J., Herbert J., O'Keeffe J.

Judgment by: Finnegan J.

Status of Judgment: Approved


Judgments by	Result
Finnegan J.	Refuse leave to appeal against conviction

Outcome: Refuse leave to appeal against conv.

THE COURT OF CRIMINAL APPEAL

[2009 No. 194 C.C.A.]
[KY/34/2008]

BETWEEN

THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND
FRITS HUIBREGTSE

APPLICANT

JUDGMENT of the Court delivered by Finnegan J. on the 28^th day of June, 2010
The applicant was charged on indictment with, Count No. 1, possession of herbal cannabis, a controlled drug, on the 7^th August, for the purpose of unlawfully selling or otherwise supplying it to another, in contravention of s. 15 and s. 27 of the Misuse of Drugs Act 1977, (as amended by ss. 2 and 6 of the Misuse of Drugs Act 1984), and the Misuse of Drugs Regulations 1988 and 1993, (made under s. 5 of the Misuse of Drugs Act 1977). The Indictment was amended, as to Count No. 1 by Order of the learned trial judge, by deleting the word “herbal”. To this charge the applicant pleaded not guilty.
The applicant was also charged on Count No. 2 of the same Bill No. KY34/08 with possession of herbal cannabis, a controlled drug on the same date in contravention of the provisions of s. 3 of the Misuse of Drugs Act 1977 (as amended by ss. 2 and 6 of the Misuse of Drugs Act 1984). The applicant pleaded guilty to this charge.
He was further charged on Count No. 3 of the same Bill with cultivation of plants of the genus Cannabis on the same date, without a licence, in contravention of the provisions of s. 17 and s. 27 of the Misuse of Drugs Act 1977 (as amended by
ss. 2 and 6 and 11 of the Misuse of Drugs Act 1984). To this charge the applicant also pleaded guilty.
After a trial before His Honour Judge C. Moran and a jury, at Tralee on the 1^st and 2^nd July, 2009, the applicant was found guilty on Count No. 1 by a unanimous verdict of the jury. At a sentence hearing on the 8^th July, 2009, the applicant was sentenced to a term of three years imprisonment on Count No. 1, to a term of two years imprisonment on Count No. 3 and Count No. 2 was taken into consideration. The sentences were to run concurrently from the 8^th July 2009.
Leave to appeal having been refused by the learned trial judge, a Notice of Application for Leave to Appeal to this Court was delivered on the 14^th July, 2009. The grounds advanced were as follows:-

“(a) The learned Trial Judge erred in law and in fact when, during the course of his Charge to the Jury, he stated that the Jury could take the view that, on the 7

^th

August, 2007, the cannabis plants cultivated by the accused had, at that time the potential for the full value of the drug which would be in the plants when harvested some 10 or 12 weeks later, in October, notwithstanding the fact that the count on the Indictment unequivocally stated that the offence charged against the accused constituted the possession of the drug on the 7

^th

August, 2007, and not on any other date.

(b) The learned Trial Judge erred in principle and in law when he declined to accede to the Defence Requisition that he re-charge the Jury in respect of the amount of drug in the possession of the accused on the 7

^th

August, 2007.

(c) When the jury posited two questions to the Learned Trial Judge, namely firstly, “is the charge being tried by us more serious than the other two charges?”, and secondly, “is sharing a ‘spliff’ – could that be a form of supply?” He first appeared to invite submissions from counsel in the presence of the Jury, but then interrupted Defence Counsel at the beginning of his submission. Then, only after the learned Trial Judge answered the jury’s questions and the Jury had again retired, did he invite submissions and requisitions of Counsel. The learned trial judge erred in principle and in law in:

not first hearing submissions from Counsel in the absence of the Jury and prior to answering the questions;

having heard detailed requisitions from the defence on his answers, failing then to recharge the jury as requisitioned.

(d) During the course of his Charge to the Jury and his summary of the evidence, the learned Trial Judge said at one place that Gda. M. Murphy had said that that the cannabis plants had no buds or some buds but that he couldn’t be sure, and then at a distinctly separate place, that Gda. M. Murphy had said that that they were healthy plants and well flowered. The learned Trial Judge erred in principle and in law in refusing the defence requisition that he recharge the Jury in respect of this gross inconsistency touching a central matter of the trial.

(e) During the course of his Charge to the Jury the Learned Trial Judge appeared to use the terms ‘value when harvested’, ‘return from plants’ and ‘amount expected to be extracted from plants’. Interchangeably, and he erred in law and in fact in so doing when the offence being tried concerned the amount of drug in the possession of the accused specifically on the 7

^th

August, 2007 and not on some future date.

(f) During the course of his Charge to the Jury and when dealing with the prosecution evidence on the amount of cannabis in the possession of the accused the learned Trial Judge erred in principle, in law and in fact when he failed to alert the Jury to the very considerable inconsistencies in the prosecution evidence which ranged from one and half ounces from forty plants or sixty ounces from the plantation to one hundred and twenty ounces to one hundred and sixty ounces, and when he quoted Gda. M. Murphy as saying that the accused would have harvested two hundred and forty weeks supply without qualifying this by reference to the other inconsistencies and disparities in estimations by Gda. M. Murphy.

(g) During the course of his Charge to the Jury the learned trial judge erred in principle, in law and in fact when he failed to alert the Jury to the considerable inconsistencies in the evidence of Gda. M. Murphy where he gave very widely varying and disparate estimates of the street value of herbal cannabis ranging from €120 per ounce to €250 per ounce to €420 per ounce.

(h) During the course of his evidence Gda. James Murphy firstly agreed that half of the 80 plants would probably be male and would not produce any herbal cannabis. Later in his evidence Gda. M. Murphy significantly altered and exaggerated his evidence suggesting that many more or all of the plants would be female, either because the accused had removed male plants, leaving stumps or if the seeds had been genetically modified, which was pure speculation and not based on any evidence. The learned Trial Judge erred in principle, law and in fact in failing to bring these inconsistencies to the attention of the Jury.

(i) The learned trial judge erred in law and in fact in not fully explaining to the Jury in the course of his Charge the importance of taking sufficient account of the accused’s evidence that the cannabis was entirely for his own personal use in ease of his chronic back pain arising from his condition of degenerative arthritis and that it was in fact possible that this could be so.

(j) The verdict of the Jury was perverse, having regard to all the circumstances of the case, and the totality of the evidence and having regard to the required standard and onus of proof to be discharged by the prosecution.

(k) The weight of the evidence could not in all the circumstances support the safe conviction.

(l) Such further and other grounds as may be relied upon and offered with the leave of this Honourable Court.”

By Order of this Court, made on the 15^th February, 2010, the applicant was given leave to add to the following additional ground:-

“There was a fundamental misapprehension in the use and understanding of the word ‘ounce’ on the part of the prosecution and the accused which led to the mistaken belief as was put to the jury that the potential yield of the plants would have been sufficient for a personal supply of Cannabis for the accused for a period of 240 weeks instead of 40 – 60 weeks.”

and to adduce as additional evidence affidavit of the applicant sworn on the 3^rd February, 2010 and the affidavit of Michael O’Loughlin, Translator, sworn on the 8^th December, 2009, with liberty to the respondent to file notice to cross examine in respect of each such affidavit.
Written submissions on behalf of the applicant were filed on the 17^th November, 2009, and written submissions on behalf of the respondent were filed on the 20^th April, 2010.
Section 3(2) of the Misuse of Drugs Act 1977 (No. 12 of 1977), makes it an offence for a person to have in his possession a controlled drug in contravention of
s. 3(1) of that section.
Section 15(1) of the Act of 1977, provides that:-

“Any person who has in his possession, whether lawfully or not, a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations under section 5 of this Act, shall be guilty of an offence.”

Section 5(1) of the Act of 1977 provides:-

“For the purpose of preventing the misuse of controlled drugs, the Minister [for Health] may make regulations –

(a) prohibiting absolutely, or permitting subject to such conditions or exceptions as may be specified in the regulations, or subject to any licence, permit or other form of authority as may be so specified -

(i) the manufacture, production or preparation of controlled drugs,

(ii) . . .

(iii) the supply, the offering to supply or the distribution of controlled drugs.”

In the Schedule of the Misuse of Drugs Regulations 1988, “cannabis” is designated a controlled drug. The definition of “cannabis” in s. 1(1) of the Misuse of Drugs Act 1977, is amended by s. 2(a) of the Misuse of Drugs Act 1984, by the substitution of the following definition:-

“‘Cannabis’ (except in ‘cannabis resin’) means any plant of the genus Cannabis or any part of any such plant (by whatever name designated) but includes neither cannabis resin nor any of the following products after separation from the rest of any such plant, namely –

mature stalk of any such plant,

fibre produced from such mature stalk, or

seed of any such plant.”

The applicant had pleaded guilty to having cannabis in his possession on the 7^th August, 2007, but he pleaded not guilty to having it in his possession for the purpose of selling or otherwise supplying it to another. It is provided by s. 15(2) of the Act of 1977 that (subject to s. 29(3) of that Act, which is not relevant to these proceedings), -

“When it is proved that a person was in possession of a controlled drug and the court, having regard to the quantity of the controlled drug which the person possessed, or to such other matter as the court considers relevant, is satisfied that it is reasonable to assume that the controlled drug was not intended for the immediate personal use of the person, he shall be presumed, until the court is satisfied to the contrary, to have been in possession of the controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations under s. 5 of this Act.”

It was established in evidence by members of An Garda Síochána at the trial of the applicant, in particular by Det. Gda. James Murphy and Det. Gda. John A. Evans, that in the course of carrying out a search of the applicant’s home and lands, pursuant to a valid search warrant, between 30 and 50 empty new-looking, transparent, re-sealable, zip-lock, plastic bags, each embossed with a design showing a cannabis leaf, were found in a drawer in a downstairs sitting room of the applicant’s house. Det. Gda. Murphy told the Jury that the Garda Síochána were familiar with these type of bags, which were generally referred to as “100 bags” and, would normally be used to hold between 4½ to 5 grams of herbal cannabis. From the Transcript of the evidence given on Day 1 of the Trial, it is clear that by “herbal cannabis”,
Det. Gda. Murphy meant the flower buds of the female cannabis plant.
After a protracted search of the applicant’s land, the members of An Garda Síochána discovered, concealed with camouflage netting, in a densely wooded section of that land, a crop of 80 cannabis plants, between 6 and 8 feet tall. A number of photographs of this crop were shown to the Jury.
Before any evidence was called by the prosecution, Counsel for the applicant made admissions, pursuant to the provisions of s. 22 of the Criminal Justice Act 1984, as follows:-

“. . . the accused admits that there was a valid search warrant obtained and that a valid search of his premises took place. The accused admits the possession of the plants; the accused admits growing circa 80 cannabis plants; admits that there was a valid arrest that he was in lawful custody and admits the lawfulness of the interview and the interview notes; admits the chain of custody of the exhibits; admits the forensic report, the s. 10 forensic report. As the jury have already heard in any event, he admits and pleaded guilty to possession of cannabis and to cultivation of circa 80 cannabis plants.”

The search of this area by the members of An Garda Síochána also revealed an extendable pruner, a bucket, a container of tomato plant food and a hose connected to a nearby stream or well.
In evidence, the applicant told the Jury that on the 7^th August, while accepting that a small number of the plants, “may be starting to flower”, it would too early to say how many plants were male and how many plants were female. In a cautioned statement made to An Garda Síochána on the 7^th August, 2007, and, in his evidence at the trial, the applicant claimed that probably only half of the plants would be female. Det. Gda. Murphy was prepared to accept this number as a general estimate. He accepted that he could not say how many buds were on how many plants, but insisted that it was a particularly healthy, big, well-flowered crop. He told the Jury that persons maintained that it was possible to source genetically modified seed in the Netherlands which produced female plants only, but in reality he considered that it was a “bit of a lottery” or “a bit of a lucky bag”, whether one got all female seeds or not. In cross examination Det. Gda. Murphy stated that generally when it came to the flowering stage male plants were cut down and removed and, “in this case, in the plantation there was a number of stumps cut which would indicate [to him] that they were not flowering plants, [and] that they were getting rid of male plants or waste”. In re-examination the applicant examined the 16 photographs introduced into evidence by the prosecution and denied that stumps were to be seen in any of these photographs.
As regards the possession of a controlled drug, this Court draws attention to the important fact that s. 15(1) of the Misuse of Drugs Act 1977, does not distinguish between male plants and female plants of the genus Cannabis or the stage of their development. The subsection refers only to possession of any plant of that genus or any part of any such plant, which is the “controlled drug” for the purpose of the section. At the trial of the applicant, it was proved, both by positive evidence from members of An Garda Síochána, and by the applicant’s own admissions, that on the 7^th August, 2007, the applicant was in possession of 80 plants of the genus Cannabis, whether or not only 40 of those plants might eventually turn out to be female plants. In the light of this evidence alone, but all the more so, if the Jury also took into consideration, as it was clearly entitled so to do, the applicant’s possession of the 30 to 50 so called, “100 Bags”, his refusal to identify the source of those bags, and the whole layout and scale of the enterprise, this Court is satisfied that it was beyond any shadow of any doubt reasonably open to the Jury to assume that the plants were not intended for the applicant’s immediate personal use.
In his evidence in chief, the applicant told the Jury that he grew these plants to help him to cope with a back injury. He stated that he had been to, “giropractors, chiropractors, physiotherapy, any kind of thing” and, that there was plenty of evidence on X-rays in Tralee Hospital. He said that the anti-inflammatory medicine prescribed for him by his doctor gave him a sore stomach. He said that the cannabis was purely for his individual use: it was a natural way of curing his pain. In a cautioned statement made to members of An Garda Síochána on the 7^th August, 2007, the applicant said that he had planted the cannabis because it was a great natural painkiller. In a further cautioned statement made on the same day, the applicant stated that he grew the cannabis because he did not want to buy it and he denied that he was selling or supplying “herbal grass” to persons in Kildare or in Killarney. He accepted that if someone called to him he would share a “spliff” with them.
During the course of the trial, counsel for the prosecution very correctly accepted that it was for the prosecution to satisfy the Jury, beyond reasonable doubt, that this explanation offered by the applicant was not sufficient to rebut the presumption that he had been in possession of the controlled drug for the purpose of selling or otherwise supplying it to another.
It was stated in evidence by Det. Gda. Murphy that the amount of flower bud material which the applicant could expect to harvest from this crop of 80 plants far exceeded the applicant’s stated rate of consumption of half of an ounce or slightly less per week. Det. Gda. Murphy gave evidence that these 80 plants were amongst the healthiest plants that he had ever seen and, that it was a big well flowered crop. The jury also had available to them a number of photographs of the crop taken by
Det. Gda. Moore, a Garda Photographer on the 7^th August, 2007. Det. Gda. Murphy rejected the suggestion put to him by counsel for the applicant that the applicant expected a yield of half an ounce or so of flower bud material from each female plant. Det. Gda. Murphy said that such a yield would indicate a very unhealthy plant. He would expect a yield of between 1½ and 2 ounces from a fully mature plant and, that a yield of 1½ ounces would be on the low side. He gave evidence that the growing season for cannabis plants was from March, April or May to October, so that the particular plants in this crop were three quartets mature on the 7^th August, 2007. In the course of his evidence dealing with the market value of this crop, Det. Gda. Murphy stated, “you’ve 28 grams per ounce”.
In his direct evidence the applicant stated that only the flower buds on the very tips of the branches of the female plant were of use to him. He would harvest them about seven weeks after the flower buds first appeared, roughly at the end of October. He disagreed with the opinion of Det. Gda. Murphy that the flower bud material would rot or turn into dust after a short period. He told the jury that when dried, he would expect the material to last for a year. He would expect to get a half ounce or three quarters of an ounce of bud material from each plant but not more as the plants were too crowded which resulted in the stalks becoming bare at the bottom. He accepted Det. Gda. Murphy’s evidence of a yield of 1½ to 2 ounces per plant as valid only if each plant had more space than his crop had. The learned trial judge commented that the question of plant spacing had not been put to Det. Gda. Murphy. The applicant gave evidence that some of the plants may have been starting to flower on the 7^th August, but that it was too early to determine whether the plant was male or female. He would expect that half of the plants would be male plants.
In cross examination it was put to the applicant, and he accepted, that he made no disclosure until the members of An Garda Síochána had found the plantation, the tomato feed, the pipe and the pruner and that only then did he claim that it was for personal use as a pain killer. It was put to him that the Garda Síochána had found stumps where plants had been cut. The applicant said that he could not comment on that, but he had not cut any plants prior to the 7^th August. Having subsequently examined the sixteen photographs produced in evidence by the prosecution, the applicant said that he did not see stumps in any of those photographs.
The applicant accepted that he had the zip-lock bags. The following exchange took place:-

“

Who gave you those bags?

I’m not ready to disclose this because this case is about me and about nobody else in my eye.

You’re not willing –

And that’s totally irrelevant in my eye.

You’re not willing to tell the jury who gave you the bags?

No – I won’t. I’ll keep that private.

Q. Judge:-

Well. Mr. Huibergtse, I’ve to tell you that it is not up to you to decide what’s relevant. It’s up to –

Ok.

Q. Judge:-

Its up to the court. So, if you are asked a question you have to

answer it.

I can’t remember who gave me those bags.

Ah, come on Mr. Huibregtse now?

They were there for maybe two, three years, in that drawer. And if you think that I’m a drug dealer, then I wouldn’t – if I would be a drug dealer, I wouldn’t be so stupid to have these bags lying around in the drawer. Did you find any drugs in my house?”

The applicant agreed that these bags were special bags of a standard size but claimed that they were not illegal. He accepted that they might have been manufactured for the storage of herbal cannabis for supply to other people but, that was not the reason he had them in his drawer. They were just plastic bags he said, he did not need them, he did not use them, he did not sell drugs, they were only bags. He accepted that he had seen them used on occasion by other people to store a definite amount of herbal cannabis. The applicant felt that the bags could have been in the drawer in his sitting room for two or three years: he had forgotten about them. He said that he had got them two three, four, or five years previously, he could not remember exactly when, they were totally unimportant to him.
The applicant accepted that some of the plants in the crop were extraordinarily tall but denied that they were between six and eight feet tall. He accepted that the photographs showed quite a number of the plants to be considerably taller than a member of An Garda Síochána who was known to be 6 feet 3 inches in height. He accepted that the plants were planted by him in May and were extraordinarily healthy. He insisted that the yield of bud material would be down because the plants were planted very close together and he denied that he had thinned them.
The applicant told the jury that he hoped to get 20 or hopefully 30 ounces, a year’s supply for himself. He did not accept that each plant would produce 1½ to 2 ounces of flower bud material because he insisted they did not have enough space. It was put to him that photographs Nos. 16 and 17 did not show any lack of space or that any of the plants appeared to be suffering due to lack of space. The applicant disagreed, but accepted that it would be a matter for the jury to decide.
The applicant told the jury on two occasions that he smoked a half ounce of cannabis a week, - about two “spliffs” per day. He also stated that he sometimes might use the material in cooking or to make a tincture for local application. He totally disagreed with Det. Gda. Murphy’s opinion that in late September, into October there would be between 120 and 160 ounces of bud material available. He insisted that because of the density of the plants there would be only 20 to 30 ounces of bud material available. The applicant denied the suggestion that it was his intention in October to harvest the bud material and place the dried product in the “100 Bags” for supply to others.
It is beyond reasonable doubt that if the jury accepted and had regard only to the evidence of the applicant as to the gender of the plants in the crop, they would then have to accept that 50% of the plants would turn out to be female plants. On the evidence of Det. Gda. Murphy as to yield, this would produce a total yield of 60 to 80 ounces of bud material in late September and into October. Again, on the applicant’s own evidence of smoking half an ounce of bud material per week, this would provide enough material for two to three years even allowing for some use in cooking and for some use in making tinctures. On the applicant’s own evidence the bud material, when dried, would remain useable for about one year. Det. Gda. Murphy gave evidence that it would dry out and turn to dust much sooner, - in three to six months. The applicant’s evidence to the jury was that he would expect to get only 20 to 30 ounces of bud material from the total crop, which was the only material he used and, that this would just be sufficient for about one year. Whether these plants in this crop produced the higher yield of 40 to 60 ounces contended for by Det. Gda. Murphy or, the lower yield of 20 to 30 ounces contended for by the applicant, depended, on the applicant’s own evidence, entirely on the spacing of the plants. In evidence the applicant accepted that this was a matter for the jury to decide. This Court is satisfied that there was ample oral and photographic evidence before the jury to enable a reasonable jury to determine this issue, which issue was singularly within province of the jury to decide.
This Court is not satisfied, on the affidavit evidence of the applicant and of Mr. Michael O’Loughlin, that the applicant, during the course of the trial, persistently, even if erroneously equated “ounce” (imperial measure containing 28.3 grams), with the word “ons”. This latter is an informal, (since 1937), but on the affidavit evidence commonly employed unit of measurement in the Netherlands, originally containing 30 grams, but since the introduction of the Metric System, 100 grams.
The applicant’s country of origin is the Netherlands, but he has resided and, earned his livelihood by forestry and horticulture, in this State since 1979. The applicant’s evidence to the jury was that he had trained for some time as a psychiatric nurse in the Netherlands but had changed to caring for mentally handicapped persons. This Court considers that it is reasonable to infer that either or both these activities necessitated some familiarity with pharmacology, even if at a very basic level, with stress on the importance of accurate dosages and quantities.
The applicant had a full opportunity of considering the Book of Evidence and of consulting with his legal advisers both prior to and during the course of the trial. During the trial, constant reference was made, in examination in chief, in cross examination and in re-examination, - on each of the separate days of the trial, - to yields and consumption expressed in ounces. Det. Gda Murphy even went so far as to state in the course of his evidence, “you’ve 28 grams per ounce”.
If, as alleged, the applicant made an error in equating “ounce” with “ons” then that error must have been consistent as regards all of the evidence. It is simply not tenable or credible that the applicant thought in terms of “ons” solely as regards his own consumption of flower bud material but, as regards all other aspects of the evidence, in terms of imperial “ounces”. If such consistency is accepted, as in the opinion of this Court it must, and, which is the only rational interpretation of paras. 8 and 11 of the affidavit of Mr. O’Loughlin, then the effect of the evidence remains the same and, the applicant has not been prejudiced in any material respect by reason of this alleged error.
The learned trial judge in his charge, emphatically instructed the jury that they must not speculate or go outside the limits of the evidence, which limits he carefully identified. The learned trial judge lucidly and accurately explained the law to the jury, in particular the provisions of s. 15(1) and (2) of the Misuse of Drugs Act 1977. He explained to the jury that the applicant should be regarded as someone with no previous convictions and emphasise the importance of this to their deliberations. He dealt with the evidence in the case. This Court finds that the treatment of the evidence in the case by the learned trial judge was clear, logical, sufficient, fair and balanced. He identified the question of “selling or otherwise supplying to another” as the core question in the case. He specifically related the question of the product yield of the plantation to this core issue and to the presumption arising by virtue of s. 15(2) of the Act of 1977. He referred to the question of plant density and health and, to the question of the presence or absence of stumps and related these matters to the question of the yield of flower bud material. Finally the learned trial judge succinctly, fairly and accurately summarised the case for the prosecution and the defence.
This Court is satisfied that the Charge of the learned trial judge to the jury, taken in its entirety, was entirely satisfactory. His summary of the evidence of Det. Gda. Murphy was sufficient, fair and balanced. It is not necessary for a trial judge, if he or she chooses to comment on the evidence, to labour pedantically through every twist and turn of that evidence. The learned trial judge sufficiently reminded the jury of the differences on the evidence between the prosecution and the defence regarding the bud material yield of the plants and the relevance and importance of this.
After deliberating for 45 minutes, the jury returned with what the foreman described as “two small questions”. These were:-
“- Is sharing a ‘spliff’ a form of ‘supply’.

Is the charge we are trying a lot more serious than the other two charges to which he has admitted.”

The learned trial judge answered “yes” to both questions, adding, that the definition of “supply” includes giving without payment.
It would have been preferable had the learned trial judge heard submissions by counsel for the prosecution and for the defence in the absence of the jury before answering the jury questions. However, having regard to the questions, this Court is equally satisfied that the defence was not prejudiced in any way by the judge’s oversight in this regard.
In the opinion of this Court the learned trial judge very correctly declined to speculate as to why the jury had asked the second question. Further, the learned trial judge very correctly refused the requisition of counsel for the applicant that he informed the jury of the level of sentences which might be imposed in the event of a conviction of an offence under s. 15 of the Misuse of drugs Act 1977.
On the requisition of counsel for the applicant the learned trial judge recalled the jury and further charged them that “sharing” is defined in the Act as including giving without payment so that the answer to their second question was self evident. However, he warned the jury that they must consider, not just that particular question but the whole of the evidence and the other factors in the case as well.
This Court is satisfied that there was no error in principle or in law on the part of the learned trial judge.
This Court is not satisfied that the decision of the jury was perverse, as being unreasonable or against the weight of the evidence. The applicant has not satisfied this Court that no reasonable jury properly charged could reasonably have reached a decision on the evidence that was before this jury to find the applicant guilty of an offence under s. 15(1) of the Misuse of Drugs Act 1977. The jury are the sole judges of the facts properly before them and, this Court is fully satisfied that there was legally sufficient evidence before this jury upon which they could reasonably conclude that the applicant was guilty as charged.