Irish Court of Criminal Appeal

Judgment Title: DPP -v- Aidan Finnegan & anor

Neutral Citation: [2011] IECCA 47


Court of Criminal Appeal Record Number: 229/09 & 228/09

Date of Delivery: 28/07/2011

Court: Court of Criminal Appeal

Macken, J. [Record No. 229 & 228/09]
Herbert, J.
O’Keeffe, J.

Judgment of the Court delivered on the 28th day of July, 2011 by Macken, J.

This is an application for leave to appeal by each of the defendants against their conviction for possession of drugs contrary to s.15A of the Misuse of Drugs Act 1977 as inserted by s.2 of the Criminal Justice Act 1999. They were both charged with possession of heroin for sale of supply, with a street value in excess of €13,000 (€43,000 plus). On conviction each was sentenced to 12 years, backdated to the 4th September, 2008. A separate application for leave to appeal against sentence is deferred until delivery of this judgment.

In this appeal, each applicant is separately represented. Not all of the grounds of appeal, as lodged, were common to both, although, as will be clear in a moment, that changed at the commencement of the hearing of the application. As to the first defendant, Aidan Finnegan, in his grounds for leave he raises essentially four issues, which can be briefly summarised as follows:

(a) An allegation (based on grounds 1, 2 and 5) that the learned trial judge failed to grant an application for a direction at the close of the prosecution case arising from the failure of the prosecution to establish “possession” of the drugs in question, and thereafter failed to charge the jury adequately, or answer the jury’s question properly, on this issue;

(b) An allegation, based on grounds 3 and 4, that the summing up by the learned High Court judge was unbalanced, impartial and unfair.

(c) Counsel for the prosecution allowed the jury to infer that both defendants were wearing gloves when handling the drugs, whereas the two witnesses to the alleged handling did not say anything to support such a contention, and were not questioned on the issue.

(d) Pre-trial adverse publicity, in particular as a background to the impartiality of the summing up.

As to the second applicant, his application for leave encompasses the following grounds, briefly described as follows: the verdict was unsafe because of:

(a) The failure of the learned trial judge to grant a direction on the possession ground, similar to the above, and thereafter to charge the jury correctly as to the legal meaning of possession;

(b) The failure of the judge to instruct the jury as to how the legal definition of possession should apply to the facts of the case in issue.

Background
According to the evidence tendered, the following is the background to the events leading up to the prosecution of the applicants. On the relevant date, and apparently acting on confidential information, the gardai positioned themselves in a wooded area near Glanmire, County Cork at a housing estate, Brook Lodge. Both applicants, who were not from the area originally, arrived separately at the housing estate. They were accompanied, at a certain point, by the girlfriend of one of them and were joined by a friend or acquaintance of the second named applicant, who lived in, or had access to, a house in that estate. While that person, who subsequently pleaded guilty to possession of drugs, went to a local shop with the girl, the two applicants went to the wooded area close by.

There, according to the evidence of the gardai, the first named applicant, Finnegan, bent down and took a white bag from the undergrowth, took a blue box/container out of the white bag, and passed it to the second named applicant, Morrison, who took it. He, in turn, opened the box/container, and put his hand into it, removed his hand, closed the box, put it back in the bag held by Finnegan, who then replaced it in the undergrowth. They both then left and returned to the house in the estate, where, after a short while, they got into a car, and were about to leave the estate when they were stopped by gardai and arrested. Gardai had, in the meantime, gone to where the white bag had been replaced, removed the box and in it found a package wrapped with duct tape, which they opened with a key and confirmed that it contained a controlled drug. When the drug was analysed it was found to be diamorphine, that is, heroin, having a street value, according to the evidence, in excess of €43,000.

The defence of both applicants was the same: it was all a tissue of lies, made up by the gardai. They had never gone to where the drugs were found: they had not touched the bag or the container, or the contents of it, and they were being “stitched up”. Apart from this defence, they also challenged the case made by the prosecution, including on the basis that no photographs were taken at the scene where the drugs were found, an important matter it was argued, in light of the nature of the growth at the time of year. They also challenged the absence of tests for fingerprint or DNA evidence on several items, including on plastic gloves found on the first named applicant, and other matters which will be dealt with below. They did not raise any other defence.

The Issue
The first question which arises on the application is whether or not the learned trial judge was correct to refuse to grant a direction, when sought, on the basis that the prosecution had failed to establish that either Finnegan or Morrison possessed the drugs and also intended to do so. The second question is whether the charge to the jury on the issue of possession was deficient, as claimed. Since both these grounds really rely on similar or closely related arguments, it is appropriate to deal with the arguments on the issues together. Separately, the Court will deal with the allegation of bias and unbalance in the charge raised by the first applicant.

Evidence Tendered
On the question of the direction, the evidence before the Court on behalf of the prosecution, given, inter alia, by Detective Sergeant O’Brien, was that he personally witnessed both applicants walking across his line of vision from where he was positioned in the woodland area mentioned above. He was able to identify them. He recognised the first named applicant, but he did not recognise the second applicant, whom he identified in the course of trial. His evidence was that the two men had travelled about 20 metres to the left of his position and stopped, that Aidan Finnegan had bent down and removed a large white bag from where it was concealed. He said he saw Aidan Finnegan remove a blue coloured container from the bag, which container he then handed to the second applicant who took it, opened it and placed his right hand into it, although the witness could not see whether Alan Morrison placed anything into, or removed something from the blue container. Morrison then closed the box, replaced it in the white bag (held by Aidan Finnegan) and Finnegan replaced the white bag in the undergrowth. They both then left and returned together to Brook Lodge Estate. All the foregoing was strongly challenged in evidence and the garda witnesses were also challenged on the absence of any forensic evidence and on the failure to take photographs.

Evidence was also given by Detective Sergeant O’Brien in the course of cross-examination that the seizure arose as a result of surveillance of a third party, John Paul Carey, who lived in the nearby housing estate, and in respect of whom local gardai had confidential information that he was “dealing in drugs”. This witness’s information was that this related to heroin, whereas local gardai, he said, believed he was dealing in cannabis. John Paul Carey had been seen in the woodland area, but gardai did not know the specific position where drugs were hidden, within an area of possibly 20 or 30 acres, and were led to the drugs, fortuitously, by the applicants going there while under surveillance.

The applicants were stopped and arrested as they were driving out of the Brook Lodge Estate. At the same time as the arrests were occurring, John Paul Carey ran out of a house at Brook Lodge Estate into the same nearby woodland area with another package, later confirmed to be illegal drugs. He is not involved in this appeal in any way.

The Argument on Possession
Very helpful written submissions were filed on behalf of all parties, and these were supplemented by oral argument. Helpfully, since much of the argument on behalf of the applicants was common, respective senior counsel did not duplicate their arguments. It should be understood therefore that the following arguments are common to both applicants, save where specifically referring to one or other applicant.

Mr. Aylmer, senior counsel for the second applicant, who was heard first, argues that, in reality, he has one point to make, although in two different contexts. He contends that on two occasions, once during the course of the application for a direction at the end of the prosecution case, and again in the course of the charge of the learned trial judge, the issue of “possession” of the drugs, and in particular the requirement for the prosecution to establish the necessary “animus possidendi” was not correctly dealt with by the learned trial judge. Mr. Micheál O’Higgins, senior counsel for the first applicant, agrees. As a result, the direction sought ought to have been granted, but was wrongly refused, because no possession in law had been established. The conviction was thereby rendered unsafe.

Both counsel rely, not only on the arguments presented on behalf of both applicants by their respective counsel during the trial, but also on more recent case law, including DPP v. Kieran Smyth & Another (Unreported, Court of Criminal Appeal, 18th May 2010) to which the Court will refer in its conclusions. Counsel very fairly accept that there are elements in the latter case, which at first glance appear to be against their argument, but which, on reflection, support the contention that the prosecution must establish, beyond a reasonable doubt, both actual possession of the drugs, and also an intent to possess them.

It is argued that on a correct reading of the application for a direction at the conclusion of the prosecution case, the test applied in that application was wholly inadequate, so far as the second applicant is concerned. In that regard, Mr. Aylmer argues that, on the evidence, this applicant merely had, physically in his possession, and for a short period of time - measured in seconds rather than in minutes - the blue box/container which he opened, put his hand into and closed again. However, it is said that Morrison had not picked the bag up from the undergrowth or took the box out of the bag, both of which were done by Finnegan, and that the evidence established that Morrison could not have seen inside the package in the box, as the package was sealed with duct tape, unless he opened the package, which he had not done. Detective Garda Keane said in evidence that he had had to make an incision in it with a key in order to establish that it contained illegal drugs. Therefore, Mr. Aylmer submits, merely “touching an item for a number of seconds”, the item having been handed to him by another person, cannot constitute possession for the purposes of the criminal law. On the facts of this case, it is argued that there was insufficient evidence adduced by the prosecution upon which a reasonable jury, properly charged, could convict his client Morrison.

Mr. Aylmer points out that both defence counsel had contended at trial, that the prosecution evidence did not show any “assumption of control or custody” of the drugs by his client, other than the applicant looking at the contents of the white bag, perhaps in some detail.

Whereas, the law permits a jury to draw an inference from all the surrounding facts as to whether or not the person had possession of an item, in the sense of having control of it, it is contended by Mr. Aylmer that, on the above evidence, there is also a distinction to be drawn between Morrison and the first applicant, Finnegan. The direction, therefore, ought to have been granted.

Relying on The People (DPP) v. Byrne Healy & Kelleher [1998] 2 I.R. 417, which, in turn, relied on the decision in R v. Warner [1969] 2 AC 256, both counsel submit that mere physical possession is not sufficient, and a mental element, or animus possidendi, must also exist, and Mr. O Higgins adopts in argument an extract from a later English decision, in the following terms:

“If a person is handed a container, and at that moment when he receives it, does not know or suspect, and has no reason to suspect, that it contains drugs, and if, before he has time to examine the contents, he is told to throw it away and immediately does so, he cannot, in our opinion, be said to have been in possession of the drugs which happened to be inside the container so as to be guilty of an offence against s.5 of the 1971 Act. This is so even though the instruction to throw away the container, which he instantly obeyed, made him suspect that there was something wrong with its contents.”

It is now appropriate to turn to a related argument on this ground raised by Mr. Aylmer on behalf of the second applicant, not mentioned in the original written submissions, but arising from a more recent decision of this Court in The People (DPP) v. Kieran Smyth (Snr.) & Kieran Smyth (Jnr.) (Unreported, Court of Criminal Appeal, 18th May, 2010). This is invoked on the basis that, apart from the matters invoked above, the prosecution did not, in any event, discharge the burden on it to establish possession. It is necessary to set out details of that case to put Mr. Aylmer’s argument in context.

Only one ground of appeal was argued in that case, and it concerned the provisions of s.29(2) of the Misuse of Drugs Act, 1977. The applicants had raised s.29(2) as a defence at trial, the defence being that, in return for the sum of €300, they would take possession of packages which the defence said they believed contained computer parts, but which, in fact, contained controlled drugs. The issue which arose was whether or not the charge was correct, in that the learned trial judge had said that, notwithstanding the provisions of s.29(2), the burden “never shifted to the defence”. This Court found that that statement was an error in law. The learned trial judge had correctly characterised the section of the Act in issue as being the linchpin of the case, had correctly analysed the nature of the defence set out under that section as being subjective, and dependent also upon what each of the applicants perceived, in all the circumstances of the case, they had in their possession. This Court found that it is no part of the reverse burden carried by either of the applicants, as accused, in raising a defence under s.29(2), for them “to prove beyond reasonable doubt that they did not know and had no reasonable grounds for suspecting that what was in their possession was a controlled drug” (emphasis added). They did, however, carry the lower burden of proof set out in the judgment, not relevant for the present application.

This Court then went on to give assistance on what might constitute a correct direction to a jury in relation to the particular burden of proof under s.29 of the Misuse of Drugs Act, 1977. Mr. Aylmer invokes this latter part of the judgment as being of assistance to him, essentially relying on the reiteration of the statement that the burden of proof in a criminal trial “is borne by the prosecution in respect of every issue”.

Junior counsel for the respondent, Ms. Baxter, submits that several of the cases invoked by the appellants for their conclusions, rely on the particular facts of those cases. The respondent invokes the case law cited on behalf of the applicants before this Court, including, in particular, the decision of this Court in DPP v. James Hourigan & Keith O’Donovan (Unreported, Court of Criminal Appeal, 19th March, 2004) in which McGuinness, J., cited, with approval, R v. Galbraith [1981] 1 WLR 1039, as, in turn, adopted with approval by the courts of this jurisdiction on many occasions, including in DPP v. M (Unreported, 15th February, 2001). She argues that this case law makes it absolutely clear that the approach of the learned trial judge to the application for a direction was correct, and that he applied the case law, now well established, to the facts. In the present case, it was only the evidence of the relevant garda officers with regard to what they say they saw of the activities of each of the applicants and the transactions going on between them, which was to be considered at the direction stage, and it is submitted by counsel that, on that evidence, there was no doubt but that a jury, properly charged, could properly come to the conclusion that both accused were guilty of the offences with which they were charged.

The second, related, issue which arises is whether or not the learned trial judge adequately charged the jury on the “possession” requirements of the offence. It is said on behalf of each applicant that the central criticism of the charge is that the learned trial judge did not outline to the jury the mental element required for the applicants to be in possession of drugs, and that the jury were therefore “left in the dark on this central element of the trial”. Referring to the actual content of the charge and the recharge, Mr. O’Higgins and Mr. Aylmer each submit that the judge’s instructions were inadequate and did not address the mens rea or animus possidendi. It is argued, further, that there is an obligation on the trial judge to explain concepts such as “custody”, “dominion” or “possession” with reference to the relevant facts of the case. In the course of the requisitions on the charge, the need to explain the meaning of “possession” was canvassed by junior counsel for Morrison, but it is alleged that the recharge was nevertheless inadequate. Mr. Aylmer accepts that in the case of The People (DPP) v. Gallagher (Unreported, Court of Criminal Appeal, 28th May, 2006) it was stated by this Court (Murray, C.J.) that there is no need to have a definition of possession. However, both counsel contend that, on the particular facts of this case, it was essential that the concept of possession be explained in detail to the jury, who themselves had raised a question on the meaning of “possession”.

On the charge, it is contended on behalf of the second applicant that, while the issue of “possession” was correctly defined, the learned trial judge failed properly to apply it to the facts. Further, he had failed, in light of the evidence on possession, to make the correct distinction between the two accused. On the particular facts of this case, counsel argues that the second named applicant could not possibly be found by a jury to have been in possession of the drugs.

Counsel for the respondent argues that the cases invoked on behalf of the applicants concerning the alleged inadequacy of the trial judge’s charge do not apply. It is accepted that the present case comes squarely within the obligations mentioned in DPP v. Byrne Healy & Kelleher, supra., in particular, the extract “That, in a prosecution for possession of controlled drugs, mere physical possession, in the absence of an animus possidendi, was not sufficient to ground a conviction. Accordingly, the prosecution was obliged to prove that an accused had, and knew that he had, a package in his control and that that package contained something. Further it must prove that the package contained the drug alleged …”. However, once these matters were proved, it is said, the onus of proof was cast upon the accused to bring himself within the defence provided by s.29(2) of the Misuse of Drugs Act, 1977, if he wished to raise such a defence. That did not apply here. Counsel argues that the evidence adduced with regard to what both accused did, and how they acted, and to the manner in which they acted, was sufficient to permit a jury to infer that both accused knew exactly what they were doing, knew exactly what they were handling, and were fully aware of the contents of the bag and box, and the package in the box. It is therefore submitted that the cases referred to, which deal with the necessity for a specific direction on animus possidendi, are not comparable with the present case in terms of the degree of proximity and contact between the parties, as observed by the gardai, and as given in evidence by them. Proof of animus possidendi, she contended, was not, as such, an issue in the trial. The State’s case was that the applicants at all times knew what the thing was – viz. drugs. It is submitted on behalf of the respondent, therefore, that there is no basis for the view that the learned trial judge was incorrect in his charge. She further drew attention to the exchanges between the learned trial judge and counsel for both applicants.

The respondent further contends that both the original charge and the learned trial judge’s response to the requisition, as well as the response given to the question raised by the jury, were all proper and adequate, and that he correctly gave the appropriate meaning to “possession”, as is accepted by Mr. Aylmer. If there was any criticism of the learned trial judge’s initial charge, which is not accepted, then the requisition, and subsequent statements by the trial judge to the jury, by way of recharge and in answer to the question from the jury, more than adequately dealt with any issues on possession which might have arisen. While it was accepted that perhaps the evidence could have been more substantial, in terms of the time spent with the items by Morrison, counsel for the respondent nevertheless submitted that there was ample evidence to establish possession of the package on the part of Morrison, either on his own, or acting in concert with Finnegan.

Conclusion on the Application for a Direction
The principles relating to an application for a direction are well established at this time. They have been the subject of several judgments, both of this Court and of the Supreme Court. It is sufficient for the purposes of this judgment to reiterate that the principles pronounced in R v. Galbraith, supra., have been adopted in this jurisdiction in several cases, as pointed out by the respondent, including DPP v. M, supra., and more recently DPP v. McManus, aka Dunbar (Unreported, Court of Criminal Appeal, 12th April, 2011). These well established principles can be summarised as follows: If there is no evidence upon which a jury, properly charged, could reach a verdict against an accused, then a trial judge is obliged to withdraw the case from the jury, on an application for a direction. If, however, the prosecution case, taken at its highest, establishes material or evidence upon which a jury, properly charged, could come to the view that the accused were, in this case, in possession of the drugs in question, then even if there are frailties or conflicts in that evidence, or the possession has earlier been denied by the accused, the learned trial judge is not obliged to withdraw the case from the jury upon an application for direction, but must assess the evidence and exercise his discretion appropriately. In particular, the case law makes it clear that matters of credibility should ordinarily be left to the jury, save in very exceptional cases, of which this is not one.

Since the questions which are for consideration in this matter, in the case of both applicants, are ones concerning the correct application of the case law, and the requirements of proof in relation to offences of possession of unlawful drugs, having regard to the evidence of the prosecution, taken at its highest, this Court will start with the judgment of this Court in the case of DPP v. Byrne Healy & Kelleher, supra., invoked by the parties, and which raised, but only in one relevant respect, somewhat similar issues to those raised in the present application. The Court confines itself to the relevant parts of the judgment delivered by Keane, J., as he then was, in refusing leave to appeal. In the judgment of the Court, as noted at headnote No. 5 of the Report, it is stated as follows:

“That, in a prosecution for possession of controlled drugs, mere physical possession, in the absence of an animus possidendi, was not sufficient to ground a conviction. Accordingly, the prosecution was obliged to prove that an accused had, and knew that he had, a package in his control and that that package contained something. Further it must prove that the package contained the drug alleged. In the absence of these matters there was no case to go to the jury. Once these matters were proved, the onus of proof was cast on the accused to bring himself within the defence provided by s. 29(2) of the Misuse of Drugs Act, 1977.” (emphasis added)

Before proceeding further, because s.29 of the Act of 1977 is referred to in this latter case, it is appropriate to set it out, as it dictated the context for the above extract. It is in the following terms:

“1. [where] it is proved that the defendant had in his possession … a controlled drug, the defendant shall not be acquitted … by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance … was the particular controlled drug alleged.

2. [where] it is proved that the defendant had in his possession a controlled drug …, it shall be a defence to prove that –

(a) he did not know and had no reasonable grounds for suspecting that –

(i) what he had in his possession was a controlled drug …, or

(ii) he was in possession of a controlled drug …”

(emphasis added)

“It seems to us, in order to make sense of the provisions of section 28, and also to make as clear as can be possible the decision in Warner v. Metropolitan Police Commissioner, the draftsman of the Act intended that the prosecution should have the initial burden of proving that the defendant had, and knew that he had, in these circumstances the box in his control and also that the box contained something. That, in our judgment, establishes the necessary possession. They must also of course prove that the box in fact contained the drug alleged, in this case cannabis resin. If any of those matters are unproved, there is no case to go to the jury." (emphasis added)

In particular, the English Act also intended, as does s.29 of the Act of 1977, according to the judgment in DPP v. Byrne Healy & Kelleher supra., to avoid the injustice “of a person being convicted solely because he is in possession of the drugs, where it is clear that he did not know and had not any reason to suspect that he had drugs in his possession”. (emphasis added). Both s.28(3) of the English Act and s.29 of the Irish Act provide a defence to the charge of possession of drugs in such circumstances.

Although the factual matters in the present trial are not identical to those in the case of DPP v. Byrne Healy & Kelleher, supra., it is significant that in the latter case this Court found that there was evidence on which the jury could be satisfied beyond reasonable doubt that each of the defendants had and knew that he had “the bales in his control”, that the accused knew “that the bales contained something” and “that the bales, in fact, contained the controlled drug specified in the indictment”, and accordingly the learned trial judge had been correct in not acceding to an application for a direction.

Applying the principles, clearly established in that case, to the facts in the present case, it seems to the Court that the learned trial judge was entitled to find, on the facts adduced, and taking the prosecution case at its highest, that the prosecution had proved beyond reasonable doubt the following necessary ingredients:

(i) that both accused had, and knew they had, “a package in their control”;

(ii) that the package “contained something”;

(iii) that the package, in fact, “contained a controlled drug”, heroin.

On the issue of the proof of possession, as is also clear from the case law, the concept of “possession” is significantly simpler, than the concept of “custody” or “dominion”, each of which has a particular and peculiar meaning in law, not always clearly evident to a jury. The Court adopts the extract of Murray, C.J. in the decision in The People (DPP) v. Gallagher, supra., on the concept of possession, namely:

“It is a simple concept, a common word in the English language, and well known in law, and the Court adds that it is an extremely simple concept to be understood by a jury. There is no need for a definition of possession 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, illegal 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.” (emphasis added)

Counsel for the applicants argue that, on the law as established in R v. Warner, supra., the prosecution nevertheless must establish physical possession and the animus possedendi. Where there is only momentary possession of the drugs, as was the position, according to Mr. Aylmer, in relation to his client Morrison, the law as adopted in R v. Warner, supra. was apt, and the prosecution had not established the necessary mens rea for possession. In that case, Lord Morris of Borth-y-Gest stated:

“If there is some momentary custody of a thing without any knowledge or means of knowledge of what the thing is or contains – then ordinarily, I would suppose that there would not be possession. If however, someone deliberately assume control of some package or container, then I would think that he is in possession of it. If he deliberately so assume control knowing that it has contents he would also be in possession of its contents.”

There is, however, no finding in the above cited case law that, in fact or in law, the accused must know what is in the package, only that it contains “something”. A review of all the decisions in R v. Warner, supra., makes it clear that while the charge to the jury in that case was deficient, there was more than enough evidence upon which the jury would have to find the accused guilty, and the proviso to the relevant section was applied, the conviction remaining in place. A significant factor taken into account in the legal analysis in that case was the fact that the legislation prohibits the possession of certain drugs save those in the hands of authorised parties.

Further the import of the various judgments in Reg v. Warner, supra., – not all of which were reasoned on the same basis - was clarified in the later decision of R v. McNamara, supra., which is the basis for the current position on possession in English law, and which has been adopted as containing the appropriate principles applicable also in this jurisdiction.

In the foregoing circumstances, there is no basis in law for accepting Mr. Aylmer’s submission that being in possession of something for a short period of time, even a very short period of time cannot in any circumstance constitute possession or control, or cannot evidence the necessary mens rea. As was said in Reg v. Warner, supra., the particularities of any given case must be looked at to see whether the facts as established in evidence are such as to entitle a jury to find both physical possession and mens rea. In the present case, and applying the appropriate principles, it was clearly necessary for one party to control the items so as to present them to the other party, and for the latter to control the box/container by putting his hand into it, so as to be satisfied there was in fact “a package” and that package contained “something” as it did. As is stated in R v. McNamara, supra., accepted as constituting, in this jurisdiction, the appropriate principles, it is sufficient to establish that the container, and the package in it, is in the control of the accused and that the package contained something. Nevertheless, a jury may have to consider all other matters to see if they establish the necessary mens rea, that is, an intention to possess a package which contained something, knowing it did.

The evidence tendered by both Detective Sergeant O’Brien and Detective Sergeant Keane is of two persons travelling from Brook Lodge Estate into a nearby wood or copse, locating with precision the bag in question - and in law it does not matter that this was located by one or other of the parties having greater knowledge of the location where the bag was to be found - taking the bag from the undergrowth, opening it to disclose its contents, transferring the box/container in the bag from one to the other party, that other party putting his hand into the box/container in which there was a package, then closing the box/container and returning the box/container to the bag held out to him by the other, who then replaced it in the undergrowth. That evidential factual matrix would clearly permit a jury, properly charged, to conclude that both the applicants possessed or controlled the package, that the package contained something, and that they both knew they had and intended to have the box/container and package in their possession. By their actions at that point in time and for the period in question, each of them was, and intended himself to be, in possession of the box/container and the package in it. A jury, properly charged, could accept or properly infer that the mens rea was adequately established. There was, moreover, ample evidence which also established that the package, in fact, contained the illegal drugs in question.

For the period of time while they were being observed by the gardai, they had control respectively over the white bag, over the blue container or box in that bag in which, in turn, there was the sealed package which itself contained something. Indeed, if the gardai had arrested the applicants while the exchanges were going on between them, it would, in this Court’s view, be very difficult to claim both were not in control of the box/container and package inside it, or that these were not in their possession. The fact that they were arrested approximately eight minutes later cannot alter that position. Nor does the fact that Morrison only held the box containing the package and put his hand into it for a very brief period, and then closed the box and returned it to the white bag, held out for him by Finnegan, who then returned it to the undergrowth, deprive his actions of the categorisation “possession”.

As to the helpful comments of Charleton, J. in DPP v. Smyth & Another, supra., it is unclear to the Court how a direction relating to the particular defence burden under s.29(2), can be relevant in the present application. No such defence was raised by the second applicant pursuant to s.29(2) of the Act. The burden, therefore, remained at all times on the prosecution to establish possession, pursuant to the case law, and, in particular, DPP v. Byrne Healy & Kelleher (adopted as being correct by this Court in DPP v. Smyth & Another, supra), a position fully accepted by the prosecution in this application.

This Court is satisfied that, in the present case, there was ample evidence upon which the learned trial judge could conclude that a jury, properly charged, could convict both applicants of the offence in question within the principles in R v. Galbraith, supra. All the ingredients necessary to constitute the offence were established at the direction stage, taking the prosecution evidence at its highest, and the learned trial judge’s decision met the test established in R v. Galbraith, supra., as adopted in DPP v. M, supra., and in DPP v. McManus, aka Dunbar, supra. Despite the applicants’ challenges, the facts were sufficiently established to resist the application for a direction, and no error in law occurred in that regard.

This application, based on the allegation that the trial judge was wrong in law in refusing a direction at the conclusions of the prosecution case, is, in consequence, refused.

Conclusion on the Charge
As to the allegation that the charge was inadequate in relation to the concept of possession, the following is the factual situation in that regard. At the end of the learned trial judge’s charge, which extended over several pages, there were requisitions, both on behalf of Finnegan and on behalf of Morrison. Subsequently a question was posed by the jury on the definition of possession.

Insofar as concerns the first applicant, junior counsel made requisitions on various matters, including in relation to the care which must be taken in charging a jury when two versions of events are given, but not on the definition of “possession”, or on any other issue concerning possession. The learned trial judge agreed to deal with the several matters raised by counsel. Junior counsel on behalf of the second applicant did raise the question of possession, and pointed out that the learned trial judge had not given a “specific legal direction as to the legal meaning of the phrase possession” which was of importance, he said, because one of the core elements in his client’s case was that the client had not touched the sealed package, but that the jury, nevertheless, must be satisfied with the State’s case that the applicants had, and intended to have, possession of the drugs. In the circumstances, he requested the judge to give a specific legal direction as to the meaning of the word “possession”. Mr. McCarthy, counsel then acting on behalf of the prosecution, requested counsel for Morrison to say what definition he wished the learned trial judge to adopt in the particular context. After some further exchanges, it was agreed, on two occasions, by counsel on behalf of Morrison, that the correct approach by the judge was, “to specifically say that legally there is a requirement of ‘some control’, along the lines that there has to be an element of control and, beyond that, control is a matter for the jury”.

The learned trial judge did address those matters, and in particular the issue of possession, among a number of matters included by the learned trial judge in his recharge. He recharged (i) on the benefit of the doubt, (ii) on the jury being satisfied beyond reasonable doubt, and (iii) that where two views were possible the jury was obliged to adopt the one most favourable to the accused. He dealt with the issue of possession by pointing out that there must be some degree of control, as specifically requested by counsel in the above exchanges. He said:

“… and, secondly, insofar as possession of the drug is concerned, I … well, I didn’t possibly explain that as adequately as I should have, in that possession means that there must be some degree of control over it and the State say that it’s a matter of fact for you, ladies and gentlemen. If there was control, that’s inferred from the act – from the behaviour of the accused men walking down the path, stopping at a point, going in, lifting up the bag, examining it, taking out the contents, passing it from one to the other, putting it back in and going away, and then that’s the control.”

Another opportunity arose, however, on the issue of possession, because there was a question from the jury in the following terms: “We request that we are provided with a definition of “possession” as defined under s.1 of the Misuse of Drugs Act, 1977, if such a definition exists”. At this point there was a further exchange between the learned trial judge and counsel for the applicants in relation to this question, counsel for Morrison pointing out that, “while common law never allowed for criminal liability by the mere fact of possessing an object, liability was based primarily on the physical proximity and awareness existing between the accused and an outlawed object, where he intends to exercise control over it”, an extract taken from an academic writing. Exchanges also took place with counsel for the prosecution. These exchanges concluded by an acceptance by all counsel that the matter had already been dealt with by the learned trial judge, and that it was, in the words of counsel for Morrison, “a matter of control, and the nature of that [control] is up to themselves (the jury)”. The learned trial judge thereafter gave a response to the jury in the following terms:

“You have asked a question ‘We request that we are provided with a definition of possession as defined under section 1 of the Misuse of Drugs Act 1977, if such a definition exists’. The answer to that question, such a definition does not exist. It’s not defined in the Misuse of Drugs Act. I told you that what the state say – their case is that possession is control and they say – they asked you to infer that from the circumstances under which the two accused men appeared, if you like, in the laneway, as they walked down … in front of the guards, that they stopped, that they walked into the overgrowth, that they picked up this bag which was in the overgrowth – now, it is the month of September – they pick it up, one takes out the blue tin, hands it to the other, who opens it and then puts back the cover, puts it back into the bag and replaces it, and then they walk out again and go back the way that they came. The State say they ask you to infer control from that. It’s a matter of fact for you, ladies and gentlemen. Do you consider that to be possession? It’s a question of fact for you. I can’t help you any further in that regard.”

There is no evidence that the learned trial misdirected himself in law by incorporating these comments in his answer to the question put, or made a serious and material error of fact going to the substance of the entire trial. Whatever the jury had decided on all other aspects of the case, it clearly wished to be certain what it was that constituted “possession”. According to well established jurisprudence [see: DPP v. Cronin [2004] 4 I.R. 329], repeated on many occasions, the matter cannot now be sought to be raised in the course of this application, counsel having expressed themselves satisfied with the response given and there being no grounds advanced for explaining any error on the part of the defence team for failing to raise any further objection at the time of trial, and no suggestion of any error or oversight on the part of counsel. Moreover, there is no reason, having regard to the case law and its application to the issues arising in the course of the trial, to permit the issue of possession in the context of the charge to be revisited, it being clear that the trial judge’s charge, taken as a whole, and/or the words used by him in answer to the question posed by the jury, do not expose any error in law such as to render the trial at serious risk of having been unfair, or the convictions unsafe.

For these reasons the application based on the learned trial judge’s charge on the issue of “possession” is also rejected.

Prejudice, Unfairness and Bias
The Court now turns to the allegation of prejudice, unfairness and bias alleged against the learned trial judge in his charge. This ground arises out of numbers 3 and 4 of the first named applicant’s grounds of appeal, being the second ground described at the outset of this judgment. It is said on behalf of the first applicant that his defence was wrongly or inadequately presented by the learned trial judge, in that it was unbalanced in favour of the prosecution, was partial and unfair, and did not adequately put the defence case, but made little of them.

The allegation is made in the following terms. Having pointed out certain infirmities or questions and doubts arising on the prosecution case, as the applicant, as accused, was fully entitled to do, it is argued that these issues and doubts were not raised or mentioned by the trial judge in the course of his charge to the jury. For example, criticism was made, and the prosecution witnesses were challenged, on the absence of fingerprint evidence, or other forensic evidence, such as photographs. Criticism was also made of alleged inconsistencies in the evidence, and other such matters, not specifically drawn to the jury’s attention by the learned trial judge.

It is further alleged that the summing up was unbalanced, to the extent that it rendered the trial unsatisfactory, and that the judge’s observations went beyond the bounds of “reasonable comment”. In particular, it is said, that it was not made clear to the jury that the evidence of both Detective Sergeant O’Brien and Detective Garda Keane was “completely disputed”. Nor did the charge address the core defence contention that the evidence was “essentially fabricated”, as was baldly - but properly - put by the defence throughout the trial. It is said that infirmities in the prosecution case raised were treated by the trial judge as “mere technical criticisms of the gardai in the course of their duty”, and did not convey to the jury the essential point made on behalf of this applicant, that is to say, that the criticisms made on his behalf were the “only route open [to the accused] to challenge the evidence of the garda witnesses”. Counsel points to the following extract, not merely as indicative of a failure on the part of the learned trial judge to reiterate the defence approach, but as suggestive of “a full endorsement of the core of the prosecution’s evidence”:

“Counsel (for the first named applicant) in her address to you this morning referred to certain matters which she felt – certain questions – why wasn’t the area cordoned off, why weren’t photographs taken and so on. This was a garda surveillance and I am certainly not one who is going to tell the gardai how to do their job. Apply your commonsense to that too ladies and gentlemen. Maybe they should have had photographs, maybe they should have cordoned it off. They were acting on what Sergeant O’Brien described as confidential information. Maybe it was luck that this extra stash was found, but it was found, and that is the State’s case, but as to whether a court can – you can if you are doing something irregular or improper, but as Mr. Aylmer said yesterday, Sergeant O’Brien was an experienced man, he knows what he is doing and he decided on a certain plan”.

An objection is also raised in relation to the manner in which the learned trial judge dealt with the question of fingerprints, which, it is said, was central to the defence case. In that regard the learned trial judge stated as follows:

“On the question of the gloves on [and] the heroin it is a matter for you, a matter of fact ladies and gentlemen. You have the evidence of Mr. Delaney, the forensic scientist, and you have Mr. Finnegan’s explanation that he took it out of the canister at the petrol station at Brook Lodge. He took them out of there and didn’t put them on, but we have the evidence that there was heroin – a trace of heroin”.

Having invoked case law in relation to the appropriate manner in which a trial judge ought to address a jury, it is submitted by counsel that these authorities clearly establish that the evidence of witnesses cannot be given a “seal of approval”, particularly that of crucial witnesses for the prosecution, when it was their evidence that the defence had to undermine. It is accepted by counsel that the comments of the learned trial judge in this case were “less overt” than in the cases cited, but were in some ways more “undermining of the defence”, because the charge seemed to start from the premise that the evidence tendered on behalf of the prosecution was fact, and that the gardai were seen by the learned trial judge as doing their job in a way which was “honest and reasonable”. It is said that a jury would be influenced by this, since the jury could fairly assume that this trial judge would have extensive dealings with the Drug Squad and the relevant gardai. His assessment of their honesty, therefore, would have carried more weight than the stamp of approval of the trial judge in the cases relied on. It is alleged that any expression of general confidence in Detective Sergeant O’Brien’s evidence was inimical to the defence case that his account of seeing the applicants handle the drugs was a fabrication. That line of defence was not put by the learned trial judge to the jury.

Conclusion on Prejudice, Unfairness and Bias
If counsel for the first applicant considered that the charge ought to have included other material, or was unbalanced, or did not put the defence case as alleged, then according to well established case law, including DPP v. Cronin, supra., counsel was obliged to bring these factors to the attention of the trial judge. It is scarcely necessary to repeat what this Court and the Supreme Court have said on several occasions, and going back for upwards of 60 years, namely, that if, in the opinion of counsel, there are alleged inadequacies in the charge, these must be brought to the attention of the judge, so that the charge will cover all appropriate matters. This is the means by which any claimed inadequacy can be remedied. The reasons are clear. As was pointed out in DPP v. Madden [1977] I.R. 336, the role of this Court is confined to a review of the trial, that is to say, from what appears on the transcript, all rulings of the trial judge and his charge, including all applications and requisitions on that charge. In The People (DPP) v. Noonan [1998] 2 I.R. 439 this Court has repeated the obligation, on both the prosecution and the defence, to bring to the attention of the trial judge any alleged shortcomings or failings in the charge. They are the parties with appropriate knowledge of the reality of the trial, and in the case of counsel for an accused, how and to what extent a defence is being mounted, and when it is preferable or more beneficial to an accused to remain silent on an issue, or mount a challenge on it.

Although the learned trial judge heard requisitions from junior counsel for the first applicant, none of the complaints now made of bias or prejudice was the subject of any requisition on his behalf, from which it could be inferred that the judge did not adequately present the defence case. Even though the case law makes it clear that this issue cannot, strictly speaking, be raised at this time, save in exceptional circumstances, a review of the charge makes it clear that, over all, and when viewed in its entirety, it was a fair and balanced charge, covering all the evidence, including the criticisms made by defence counsel of the respondent’s case.

There is no evidence that the trial was dealt with in any unfair or unbalanced manner or on any issue which might suggest any real or serious risk of an unfair trial. This ground for leave to appeal is rejected.

The applications for leave to appeal against conviction are refused.