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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Sophie Malric [2011] IECCA 86 (24 November 2011)
URL: http://www.bailii.org/ie/cases/IECCA/2011/C86.html
Cite as: [2011] IECCA 86
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Judgment Title: DPP -v- Sophie Malric Composition of Court: Finnegan J., Hanna J., O'Keefe J. Judgment by: Finnegan J. Status of Judgment: Approved |
COURT OF CRIMINAL APPEAL CCA 289/10 Finnegan J. Hanna J. O’Keeffe J. BETWEEN THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) .v. SOPHIE MALRIC APPLICANT Judgment (ex tempore) of Mr Justice Finnegan delivered on the 24th day of November 2011 The applicant was charged with and following trial convicted of four offences as follows:- Count No. 1 Statement of Offence Possession of a controlled drug for the purposes of selling or otherwise supplying it to another, contrary to section 15 and section 27 (as amended by section 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977. Particulars of Offence. On the 18th day of December 2009 at Dublin Airport in the County of the City of Dublin had unlawfully in her possession a controlled drug to wit cocaine for the purposes of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under section 5 of the Misuse of Drugs Act 1977. Count No. 2. Statement of offence Unlawful importation of a controlled drug, contrary to section 21(2) and section 27 (as amended by section 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977. Particulars of Offence. On the 18th day of December 2009 at Dublin Airport in the County of the City of Dublin she unlawfully imported a controlled drug, to wit, cocaine in contravention of Regulation 4(1)(c) of the Misuse of Drugs Regulations 1988 and 1993. Count No. 3. Statement of offence Unlawful possession of a controlled drug, contrary to section 3 and section 27 (as amended by section 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977. Particulars of offence. On the 18th day of December 2009 at Dublin Airport in the County of the City of Dublin had unlawfully in her possession a controlled drug to wit cocaine. Count No. 4. Statement of Offence. Unlawful possession of a controlled drug while the value amounted to €13,000 or more contrary to section 15A (as inserted by section 4 of the Criminal Justice Act 1999) and section 27(as amended by section 5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977. Particulars of offence. On the 18th day of December 2009 at Dublin Airport in the County of the City of Dublin had in her possession a controlled drug to wit cocaine for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under section 5 of the Misuse of Drugs Act 1977 and at the time when the cocaine was in her possession the market value of the controlled drug amounted to €13,000 or more. On Count No. 2 and Count No. 4 she was sentenced to a term of imprisonment of ten years to run concurrently and to date from the 18th December 2009. Count No 1 and Count No. 3 were taken into consideration. The applicant appeals against her conviction on a single ground as follows:-
Counsel for the applicant at the trial accepted every matter of which proof is required of the prosecution save the single question of guilty knowledge. The circumstances of the offence were as follows. On the 18th December 2009, acting on information, the applicant was interviewed at Dublin Airport by a Customs Officer. She was requested to put her suitcase through an X-ray machine and the image showed an inconsistency. The applicant accepted that the suitcase was hers and that she had packed it herself. She named the hotel at which she intended to stay and said that it had been booked for her by a friend. Her flight had also been booked for her by that friend. A swab taken of the suitcase indicated the presence of cocaine. She could not explain the presence of cocaine. She said that the suitcase had been in her possession at all times and that she did not take cocaine. The applicant made a statement to the Customs Officers. She had been in Senegal and Gambia, with a friend Mike who introduced her to his friends Isif and Abdullah. Mike left Senegal two or three days before the applicant and she was to meet him in Dublin. Isif gave her a bag to carry. She flew from Senegal to Lisbon and from Lisbon to Dublin. There were two packages containing the drugs in the base of the suitcase. Ms M.S. Herlihy, a Customs Officer involved, was cross-examined. She accepted that the drugs were concealed in the base of the suitcase. Mr S. Daly the Customs Officer who removed the drugs from the suitcase gave evidence that he did so by cutting open the back of the suitcase and extracting the drugs. Notes of the interview with the applicant were prepared and she signed them. Garda Ledwith gave evidence of arrest and of the quantity of the drugs, 3.16 kg. The applicant was interviewed by the Gardai and the interview was read into evidence. In the course of interview she said that she was supposed to bring gold dust to Ireland and not cocaine. She had met the people about a week earlier. She met a Gambian girl with a German man who knew she had no money and they gave her €50.00 and offered to look after her. They explained to her that “these people” would pay for her ticket, pay her expenses and give her €2,500.00 plus pocket money to bring a suitcase to Europe. They arranged for her to meet with these people in Gambia. Her friend Mike explained everything to her. She was told that it was gold dust and was told by another lady that she had made the trip once and had no problem and had got money for her family. It was not possible for her to see what was in the suitcase. In the course of the interview she said:-
She was fully co-operative. The value of the drugs was agreed at €210,119.00. In evidence she said it did not occur to her that the luggage contained drugs and at all times believed it contained gold. She was dealing with persons she considered friends and she trusted them. She accepted that she did not mention to the Customs Officers her belief that the luggage contained gold dust and that she first mentioned it at interview by the Gardai. She accepted that what she said to Customs Officers about meeting people in a bar was untrue. In fact she met them in a hotel room. Misuse of Drugs Act 1977 Section 29 of the Act as amended provides as follows:-
(2) In any such proceedings in which it is proved that the defendant had in his possession a controlled drug, or a forged prescription or a duly issued prescription altered with intent to deceive, it shall be a defence to prove that -
(ii) that he was in possession of a controlled drug or such a prescription as may be appropriate, or (c) knowing or suspecting it to be such a drug or prescription, he took or retained possession of it for the purpose of –
(ii) delivering it into the custody of a person lawfully entitled to take custody of it, and that as soon as practicable he took all such steps as are reasonably open to him to destroy the drug or document or to deliver it into the custody of such a person. (4) In any proceedings for an offence under section 19 of this Act it shall be a defence to show that the defendant took steps to prevent the occurrence or continuance of the activity or contravention to which the alleged offence relates and that, in the particular circumstances, the steps were taken as soon as practicable and were reasonable. (5) In any proceedings for an offence under sections 16, 17 or 21(2) of this Act, it shall be a defence for the defendant to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecutor which it is necessary for the prosecutor to prove if he is to be convicted of the offence charged. (6) In any proceedings for an attempt to commit an offence under this Act the defences mentioned in subsection (2) or (5) of this section shall, with the necessary modifications, be open to the defendant. (7) Subject to subsection (1) of this section nothing in this section shall prevent a person raising a defence which, apart from this section, would be open to him to raise in proceedings for an offence under this Act.” Section 15A of the Act in subsection (2) provides as follows:-
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 his immediate personal use, The Applicant’s submissions The defence in section 29(2) raises particular difficulty for juries and requires clear directions on the burden and standard of proof. In The Criminal Process, O’Malley, the author at para.4.26 has this to say:-
The prosecutor and the court should have adverted to the precise meaning and implications of section 29(2) at the outset of the case and should have clarified the exceptional nature of the evidential requirement on an accused. The prosecution in opening dealt with the onus of proof, knowledge, possession, recklessness and reasonable doubt in a manner entirely appropriate to a standard trial. The specific defence provided for in section 29(2) was not appropriately dealt with. The manner in which it was dealt with must have left the jury confused. The prosecution dealt with the defence in opening as follows:-
Ms Malric comes before the court with the presumption of innocence, that means that she is presumed to be innocent of all these allegations, the four counts set out in the indictment, or until you decide otherwise, until you decide that I have proved my case to the required satisfaction that she did have knowledge of – first of all, she did have possession of the drugs on the date in question, they were in her luggage, and she also had knowledge that the substance recovered was in fact cocaine.” While the prosecution dealt with the criminal standard and the civil standard of proof it did not in opening deal with the peculiar evidential requirements on an accused in section 29(2). No distinction was drawn between “beyond a reasonable doubt” and the burden on the prosecution to eliminate the same and the reasonable doubt that an accused must raise if relying on section 29(2). Counsel for the prosecution returned to the concept of reasonable doubt in closing but did not deal with it in the context of section 29(2) but dealt with the concept in general terms only. In closing counsel for the applicant dealt with the onus on an accused as follows:-
The learned trial judge explained section 29(2) in his charge as follows:-
Later the learned trial judge continued:-
The jury had been told that there were only two standards of proof the civil and criminal and that the latter was the relevant standard – beyond a reasonable doubt. After a period of deliberation the jury returned with two questions which exemplified the absence of clarity in their minds, and sought an explanation of recklessness in relation to section 29(2). The learned trial judge furnished an explanation and recharged the jury a second time on recklessness and on section 29(2). The learned trial judge having read over the section to the jury dealt with section 29(2) as follows:-
Counsel for the applicant was unhappy with the words “prove by sufficient evidence”. In consequence the learned trial judge readdressed the jury and having recited section 29(2) again continued as follows:-
Following submissions from the applicant’s counsel the learned trial judge again addressed the jury on section 29 as follows:-
The applicant submits that the overall effect was to leave the jury under the misapprehension of a legal burden being placed on the accused to raise evidence to disprove guilty knowledge. The reference to “sufficient evidence” created the impression of an obligation to produce evidence as opposed to merely raise an issue. A reasonable doubt may be created on the evidence given by the prosecution. In D.P.P. v Smyth & Another [2010] IE CCA 34 the court referred to the distinction to be drawn between the prosecution requirements and those of the defence in relation to section 29(2):-
In Sheldrake v D.P.P. [2004] 2 WLR 976 at 981 Lord Bingham said:-
The applicant relies on the following passage from the judgment in Smyth:
A trial judge must clearly state to the jury that the burden cast on the accused is discharged if the defence prove a reasonable doubt, and no more than that on the issue. It is submitted that this was not done with sufficient clarity in the applicant’s trial. The learned trial judge’s explanation of the concept of recklessness was inadequate. This is exemplified by the jury raising a question in relation to the same. The explanation given by the learned trial judge did not clarify recklessness notwithstanding three attempts to do so. The Respondent’s Submissions The respondent submits that the learned trial judge explained the import of section 29(2) in accordance with the interpretation thereof in D.P.P. v Smyth & Another. The learned trial judge’s exposition of the law was correct. There is nothing in the learned trial judge’s charge, his response to requisitions or in his responses to the jury’s questions which could have led the jury to believe that the applicant bore an onus of proof to the standard of beyond reasonable doubt. The learned trial judge made it clear that all that was required of the applicant was to raise reasonable doubt in relation to her guilty knowledge. In D.P.P. v Smyth & Another the trial judge had suggested that there was a burden on the accused to prove beyond reasonable doubt that he did not know that he was in possession of drugs. An accused person carries no such burden either to the civil standard or the criminal standard. Once possession is established in evidence an evidential burden shifts to the accused and this merely requires an accused to engage with the evidence to the point of raising a reasonable doubt as to the mens rea aspect of possession,. The learned trial judge when requisitioned readdressed the jury and clearly and correctly stated the law to them. Insofar as it is suggested that the learned trial judge’s exposition of the meaning of recklessness is criticised it is submitted that the explanation given was correct, clear and helpful to the jury. Discussion In his address to the jury the learned trial judge carefully explained the presumption of innocence, the onus of proof and the burden of proof. Thus the onus of proving each element of the crime remains with the prosecution and never shifts. An accused person need not prove or disprove anything. The standard of proof is beyond a reasonable doubt. He explained that in the event that there are two interpretations open on the evidence, one consistent with guilt and the other with innocence, that consistent with innocence must be preferred provided the innocent version might reasonably be true and absent proof beyond a reasonable doubt to the contrary. He carefully explained that an accused person had the option of testing the prosecution case or of giving evidence. Thus the learned trail judge gave the ordinary directions as to the presumption of innocence, the burden of proof and the standard of proof in accordance with the decision of this court in Smyth. Following discussion with counsel in relation to the judgment in Smyth the learned trial judge again dealt with the presumption of innocence, the onus of proof and the standard of proof. Again he dealt with section 29(2). At this point he said:-
However he went on to explain what he meant by the burden shifting:-
In this passage the learned trial judge dealt with the issue and terms of the applicant giving “sufficient evidence”. It was appropriate to do as it was the evidence of the applicant that was relied upon by the applicant to establish a reasonable doubt. While the reference to the burden shifting to an accused and the obligation on the accused to prove the absence of the necessary mental elements to constitute the offence without more would leave a jury under the misapprehension of a burden resting on an accused, in the present case the learned trial judge expanded upon the meaning and nature of that burden – to establish a reasonable doubt. In response to a requisition from the applicant’s counsel he made it quite clear that in this case if the evidence of the applicant raised a doubt in their mind then she is entitled to the benefit of the doubt. In a further address to the jury he made it quite clear that the burden, in the circumstances of this case where the applicant’s evidence was relied upon, was to give evidence which raised a reasonable doubt and if she did this she was entitled to be acquitted. The learned trial judge having clarified the burden which rested upon the applicant no objection was raised by counsel to the adequacy of the explanation. The court does not accept that the manner in which the trial proceeded was such as to cause confusion in the minds of the jury. In opening the case counsel for the prosecution gave no detailed explanation of section 29(2). It was quite correct that he so proceeded. Only when an issue was raised in the course of the trial, whether in cross-examination or by the applicant giving evidence, did it become necessary to consider the statutory defence. While the initial exposition by the learned trial judge of the nature of the burden resting upon the applicant was not sufficiently clear in his further explanations to the jury the nature of the burden was indeed made clear. It was made clear, evidently, to the satisfaction of counsel for the applicant as no further requisition was raised and no further clarification was sought. It is noteworthy that the learned trial judge showed a willingness to recharge the jury on any issue raised by counsel for the applicant. Experienced counsel, however, saw no need to ask the judge to expand upon or amend the explanation which he gave to the jury. The court is satisfied that any lack of clarity in the original charge was appropriately rectified by the learned trial judge in dealing with defence counsel’s requisitions to counsel’s satisfaction. While on the appeal an issue arose as to the adequacy of the explanation of the meaning of recklessness the court is satisfied that this is without foundation. The learned trial judge made abundantly clear the subjective nature of the test to be applied and, insofar as issues were raised before the learned trial judge, he dealt with the same on two occasions when he subsequently addressed the jury and did so to the satisfaction of counsel for the applicant who raised no further requisition in relation to the same. Disposition The court is satisfied that the learned trial judge adequately and appropriately rectified any lack of clarity which might have arisen out of his charge in dealing with the requisitions raised by counsel to the applicant’s satisfaction. The jury could be in no doubt that if on the evidence and particularly the evidence of the applicant which is what was relied on, a reasonable doubt as to whether the prosecution had established the necessary mental element in the offences existed they were obliged to acquit. Accordingly the applicant is refused leave to appeal her conviction. DPP v Malric |