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URL: http://www.bailii.org/ie/cases/IESC/2007/S31.html
Cite as: [2007] 2 IR 509, [2008] 1 ILRM 161, [2007] IESC 31

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Judgment Title: DPP -v- Power

Neutral Citation: [2007] IESC 31

Supreme Court Record Number: 459/06

Court of Criminal Appeal Record Number: 2004 218 CCA

Date of Delivery: 26 July 2007

Court: Supreme Court

Composition of Court: Murray C.J., Denham J., Fennelly J., Macken J., Finnegan, P.

Judgment by: Finnegan J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Finnegan J.	Appeal dismissed - affirm High Court Order	Murray C.J., Denham J., Fennelly J., Macken J.

Outcome: Dismiss

THE SUPREME COURT

459 of 06

Murray C.J.
Denham J.
Fennelly J.
Macken J.
Finnegan J.

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 29 OF THE COURTS OF JUSTICE ACT 1924

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/RESPONDENT

and

RONAN POWER

APPELLANT

JUDGMENT of Mr Justice Finnegan delivered on the 26th day of July 2007

The appellant was charged with an offence contrary to section 15A of the Misuse of Drugs Act 1977 as inserted by section 4 of the Criminal Justice Act 1999. He stood trial at Waterford Circuit Criminal Court on the 26th, 27th and 28th November 2004. The defence did not go into evidence. The appellant was convicted and sentenced to ten years imprisonment. In the course of requisitions on the learned trial judge’s charge counsel for the appellant made a submission in the following terms –
“There is just one matter, My Lord, if I may bring to Your Lordship’s attention…I think it is incumbent on Your Lordship to indicate that the jury must be satisfied that the accused knew or ought to have known at the time of the value of the drugs. It is a matter for Your Lordship.”

The learned trial judge refused the application. Leave to appeal was refused and the appellant applied to the Court of Criminal Appeal for leave to appeal. The grounds of the application included the following –
“That the learned trial judge erred in law and in fact in failing to direct the jury that it was a necessary ingredient in the offence contrary to section 15A that the accused was aware that the quantity of the controlled drug alleged to be in his possession exceeded the statutory amount.”

In an ex tempore judgment on the 22nd May 2006 the Court of Criminal Appeal held that section 15A properly interpreted does not require a mens rea element in relation to the value of the drugs involved in the offence. To succeed it is necessary for the prosecution to objectively establish that the value of the controlled drugs are of the statutory value or greater. It is not necessary to prove that the accused knew or ought reasonably to have known that such was the value. Any other interpretation would make section 15A unworkable. The appellant applied for a certificate under section 29 of the Courts of Justice Act 1924 (as substituted by section 22 of the Criminal Justice Act 2006) and the Court of Criminal Appeal certified that its decision involved a point of law of exceptional public importance that is to say –
“In the prosecution of an offence contrary to section 15A of the Misuse of Drugs 1977 (as inserted by section 4 of the Criminal Justice Act 1999) what mens rea must the prosecution prove?.”

The statutory provisions
The long title to the Misuse of Drugs Act 1977 reads as follows –
“An Act to prevent the misuse of certain dangerous or otherwise harmless drugs, to enable the Minister for Health to make for that purpose certain regulations in relation to such drugs, to enable that Minister to provide that certain substances shall be poisonous for the purposes of the Pharmacy Acts 1875-1962, to amend the Pharmacopoeia Act 1931, the Poisons Act 1961, the Pharmacy Act 1962, and the Health Acts 1947-1970, to repeal the Dangerous Drugs Act 1934, and section 78 of the Health Act 1970, and to make certain other provisions in relation to the foregoing.”

The Act contains provisions regulating the manufacture, importation, supply, transportation and prescription of controlled drugs but more particularly creates a number of offences relating to the possession of controlled drugs in sections 3, 15, 16 and 17. Defences generally are dealt with in section 29 of the Act which insofar as is relevant to this appeal provides as follows –

“29(1) In any proceedings for an offence under this Act in which it is proved that the defendant had in his possession or supplied a controlled drug, the defendant shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance, product, or preparation in question was the particular controlled drug alleged.

(2) In any such proceedings in which it is provided 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 –

(a) he did not know and had no reasonable grounds for suspecting –
(i) that what he had in his possession was a controlled drug or such a prescription, as may be appropriate, or
(ii) that he was in possession of a controlled drug or such a prescription, as may be appropriate, or

(b) he believed the substance, product or preparation to be a controlled drug, or a controlled drug of a particular class or description, and that, if the substance, product or prescription had in fact been that controlled drug or a controlled drug of that class or description, he would not at the material time have been committing an offence under this Act, or

(c) knowing or suspecting it to be such a drug or prescription, he took or retained possession of it for the purpose of –

(i) preventing another from committing or continuing to commit an offence in relation to the drug or document, as may be appropriate, or
(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 were reasonably open to him to destroy the drug or document or to deliver it into the custody of such a person.”

The Criminal Justice Act 1999, the long title thereof, commences as follows –
“An Act to create a new drug offence…”
Part II of the Act is entitled –

“Amendments to provide for new drug related offence”

In Part II, section 4 provides as follows –

“4. The Act of 1977 is hereby amended by the insertion after section 15 of the following section:

‘15A(1) A person shall be guilty of an offence under this section where –

(a) the person has in his possession, whether lawfully or not, one or more controlled drugs for the purpose of selling or otherwise supplying the drug or drugs to another in contravention of regulations under section 5 of this Act, and
(b) at any time while the drug or drugs are in the person’s possession the market value of the controlled drug or the aggregate of the market values of the controlled drugs, as the case may be, amounts to £10,000 (€13,000) or more.
(2) Subject to section 29(3) of this Act (as amended by section 6 of the Criminal Justice Act 1999), in any proceedings for an offence under this section, where –
(a) it is proved that a person was in possession of a controlled drug, and
(b) the court, having regard to the quantity of the controlled drug which the person possessed or to such other matters that the court considers relevant is satisfied that it is reasonable to assume that the controlled drug was not intended for his immediate personal use.

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 section 5 of this Act.

(3) If the court is satisfied that a member of the Garda Siochána or an officer of customs and excise has knowledge of the unlawful sale or supply of controlled drugs, that member or officer, as the case may be, shall be entitled in any proceedings for an offence under this section to be heard and to give evidence as

to –

(a) the market value of the controlled drug concerned, or
(b) the aggregate of the market values of the controlled drugs concerned.
(4) No proceedings may be instituted under this section except by or with the consent of the Director of Public Prosecutions.
(5) In this section –

‘market value’, in relation to a controlled drug means the price that drug could be expected to fetch on the market for the unlawful sale or supply of controlled drugs;

‘an officer of customs & excise has the same meaning as in section 6 Criminal Justice (Drug Trafficking) Act 1966.’”

The appellant’s submissions
The appellant’s submissions may be summarised as follows –
1. In the prosecution of any crime there is a presumption that the prosecution bear the burden of proving mens rea in relation to every element of the actus reus.
2. The Criminal Justice Act 1999 created a new offence contrary to section 15A of the Misuse of Drugs Act 1977 (as inserted by section 4 of the Criminal Justice Act 1999). Mens rea must be proved in relation to each constituent element of the offence. A constituent element of the offence is that the value of the drugs must be €13,000 or over.
3. The potentially onerous burden of proving mens rea is not a factor to be considered in the construction of the statute.

I propose dealing with each of these submissions in turn.

1. In the prosecution of any crime there is a presumption that the prosecution bears the burden of proving mens rea in relation to every element of the actus reus.

This is undoubtedly so. In The People (D.P.P.) v Murray [1977] I.R. 360 at 386 Walsh J. said –
“It is well established that, unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, a court cannot find a person guilty of an offence against the criminal law unless he has a guilty mind.”

Again at p.399 Henchy J quoted with approval Lord Reid in Sweet v Parsley [1970] AC 132 at 148 –
“Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who are in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.”

Henchy J. went on to say –
“Admittedly Lord Reid was referring to a whole offence rather than a constituent element of an offence, but the basis for the presumption is the same in both cases, i.e. to avoid the unjust or oppressive application of the section to those who have not merited the guilt and punishment envisaged by the section either because they are totally blameless or because their blameworthiness is only such as to attract guilt for a lesser offence.”

That passage from Sweet and Parsley was again approved by this court in C.C. v Ireland, the Attorney General and Others [2005] IESC 48: where Denham J. said –
“I am satisfied that this statement reflects the common law in this jurisdiction also and I would adopt and apply this statement.”

It is thus settled Irish law that where a criminal offence is created by statute, and the statute is silent as to mens rea, there is a presumption that mens rea is required in relation to the offence as a whole and in relation to each constituent part of the offence. The presumption can only be displaced by clear words or by necessary implication.

2. The Criminal Justice Act 1999 created a new offence contrary to section 15A of the Misuse of Drugs Act 1977 (as inserted by section 4 of the Criminal Justice Act 1999). Mens rea must be proved in relation to each constituent element of the offence. A constituent element of the offence is that the value of the drugs must be €13,000 or over
(a) Appellant’s submission
On behalf of the appellant it is then submitted that section 15A creates a new offence and is wholly different from an offence under section 15 having the additional element that the value of the drugs possessed must be €13,000. This court accordingly should have regard to the decision in The People (D.P.P.) v Murray. The court was there concerned with the Criminal Justice Act 1964, section 1, which created the offence of capital murder. The Court of Criminal Appeal held that the offence of capital murder was not a new offence and that an accused may be convicted of that offence where the prosecution proved the ingredients required to constitute mens rea in regard to murder and the fact that the person murdered was a member of the Garda Siochána acting in the course of his duty. The Supreme Court held that the offence was a new statutory offence and that it requires proof of mens rea in relation to each of its constituent elements and accordingly it was necessary to establish by proof that the victim was known by the accused at the time of the killing to be a policeman acting in the course of his duty. In the course of his judgment Walsh J. at p.381 said –
“I respectfully agree with what was said in the judgment of the Court of Criminal Appeal dealing with the point when it said –
‘If capital murder is a new offence or a new variety of an existing offence, there would be a presumption at common law that it was the intention of the Oireachtas that an accused person was not guilty unless he had a mens rea in relation to all the ingredients of the offence. That would mean that no person could be convicted of the capital murder of a member of the Garda Siochána unless the prosecution established that the accused knew that the victim was a member of the Garda Siochána and was acting in the course of his duty. That presumption might be rebutted by the express or implied intention of the Oireachtas to be gathered from the language of the statute and the nature of the subject matter with which it dealt.’”
(b) Respondent’s submission
The respondent accepts that section 15A created a new statutory offence but makes the following submissions. The effect of section 15A is to add a further element to conduct already criminalised by section 15 of the Act, the possession of controlled drugs for the purposes of sale or supply. It does not alter or increase the maximum penalty applicable. Its effect is to impose a presumptive minimum mandatory sentence where the value of the drugs is €13,000 or more. Section 15A does not in express terms require the prosecution to prove knowledge in relation to the value of the controlled drugs. As with section 15 the prosecution must prove –
(a) Possession and
(b) Possession for the purposes of sale or supply.
The requirement that the value of the drugs be €13,000 or more is, it is submitted, an element of the actus reus and must be proved by the prosecution in evidence. The value is a constituent of the possession which the prosecution is required to prove.
In People (D.P.P.) v Byrne, Healy and Kelleher [1998] 2 I.R. 417 the Court of Criminal Appeal was concerned with an offence contrary to section 15 of the Misuse of Drugs Act 1977 (as amended) – possession of controlled drugs for the purpose of sale or supply. The appellants were found in possession of bales wrapped in an opaque material so that it would not have been possible to ascertain visually or by smell or touch that they contained cannabis resin. It was submitted that there was no evidence, or insufficient evidence, adduced on behalf of the prosecution to establish that they had guilty knowledge of the contents of the bales. The Court of Criminal Appeal cited with approval R. .v. McNamara [1988] 87 Cr.App.R 246 where Lane LCJ at 251
said –
“It seems to us, in order to make sense of the provisions of section 28 (of the English Misuse of Drugs Act 1971 and which contained provisions broadly corresponding to the Misuse of Drugs Act 1977 section 29(2)(a)) and also to make 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.”

The court then cited with approval a passage from Archbold on Criminal Pleading Evidence and Practice [1997] Ed. at para. 26.59 –
“The 1971 Act places the initial burden of proving that the defendant had, and knew that he had, a package in his control and that the package contained something upon the prosecution. That establishes the necessary possession. The prosecution must also prove that the package contained the drug alleged. If any of those matters are unproved there is no case to go to the jury. Once those matters are proved the burden is cast on the defendant to bring himself within section 28(2) and (3): See Lord Lane C.J. at p.252 (of McNamara).”
The Court of Criminal Appeal expressed itself satisfied that this is also a correct statement of the law in this jurisdiction in relation to an offence under section 15 of the 1977 Act.
The respondent further relied on the decision of the House of Lords in R v Lambert [2002] 2 A.C. 454. That case considered whether the offence of possession for the purposes of sale or supply under the English Misuse of Drugs Act 1971 and the provisions of section 28 of that Act, which cast upon a defendant the burden of proving that he did not know that what he had in his possession was a controlled drug was in conflict with the European Convention on Human Rights. That not being an issue in the present case the decision is of little assistance save that it confirmed the House of Lords decision in McNamara.
In summary then the respondent’s submission is that when construed in the context of section 15 and the onus thereby imposed upon the prosecution it is clear by necessary implication that on a prosecution pursuant to section 15A the legislative intention was not to impose an onus on the prosecution in relation to knowledge of the value of the controlled drugs involved.
(c) Decision
In construing section 15A the court must have regard to the established Irish jurisprudence that mens rea must be proved by the prosecution in respect of each element of a statutory offence unless the statute expressly or by necessary implication provides otherwise. Read in isolation section 15A does not expressly or by necessary implication provide otherwise. That is not an end to the matter however. In construing an enactment the court must take into account the state of the law at the time the enactment was passed. In particular Acts in pari materia “are to be taken together as forming one system and as interpreting and enforcing each other:” R v Holland Palmer [1785] 1 Leach 352 at 355. They are to be construed as one, whether or not the relevant enactment expressly requires this: Rainey v Greater Glasgow Health Board [1987] AC 224 at 240. Lord Mansfield in R. v Loxdale [1758] 1 Burr. 445 at 447 stated

“Where there are different statutes in pari materia, though made at different times, or even expired and not referring to each other, they shall be taken and construed together as one system and as explanatory of each other.”

It is thus necessary to consider whether the Misuse of Drugs Act 1977, the Misuse of Drugs Act 1984, and the Criminal Justice Act 2006, section 81, are in pari materia and so to be considered together. Before proceeding to do so one matter arises. It was submitted on behalf of the appellant that regard should be had to the Criminal Justice Act 2006 which was enacted subsequent to the events with which the court is concerned. Section 81 of the act provides as follows –
“81(1) Section 15A of the Act of 1977 is amended by the insertion of the following subsection after subsection (3):-
‘(3A) In any proceedings for an offence under this section it shall not be necessary for the prosecutor to prove that a person knew that at any time while the controlled drug or drugs concerned were in the person’s possession that the market value of that drug or the aggregate of the market values of those drugs, as the case may be, amounted to €13,000 or more or that he or she was reckless or that regard.”

(2) This section shall not have effect in relation to proceedings for an offence under section 15A of the Act of 1977 instituted before the commencement of this section.”

It is well settled that subsequent legislative history is relevant only as to the view which the legislature took, whether correctly or not, regarding the law with which the enactment deals. There is, however, no question of that history being admissible on a pure question of what the pre-Act law was. See Bennion on Statutory Interpretation 2nd edition Code s.210 and s.226. Thus the Act of 2006 is of no assistance in the interpretation of section 15A.
The Misuse of Drugs Act 1984, section 16(3) provides that the 1977 Act and the 1984 Act may be cited together as the Misuse of Drugs Act 1977 and 1984 and that they shall be construed together as one Act. Acts which are required to be construed as one are in pari materia: Bennion op cit Code s.261. Again this is true of Acts which have been given a collective title. Bennion op cit Code s.262. Likewise Acts having short titles that are identical Bennion op cit Code s.249. These two Acts accordingly constitute a code.
The Criminal Justice Act 1999 part II is entitled –
“Amendment to provide for new drug related offence”.
Of the four sections in that part, three effect amendments to the Act of 1977. The fourth amends section 3(1) of the Criminal Justice Act 1994 the short title to which reads as follows –
“An Act to make provision for the recovery of the proceeds of drug trafficking and other offences, to create an offence of money laundering, to make provision for international co-operation in respect of certain criminal law enforcement procedures and for forfeiture of property used in commission of crime and to provide for related matters.”

The 1994 Act contains provisions for the making of restraint orders and confiscation orders in respect of the proceeds of drug trafficking but also in relation to money laundering generally. The effect of the amendment to section 3(1) of the Act of 1994 is to include therein a reference to section 15A of the Misuse of Drugs Act 1977. Having regard to these circumstances I am satisfied that Part II of the Criminal Justice Act 1994 is in pari materia with the Misuse of Drugs Acts 1977 and 1984 and that those Acts together with (at the least) Part II of the 1994 Act constitute a code.
It follows from this that in construing section 15A the court should have regard to both section 15 and sections 29(1) and (2) of the Act of 1977. The offences created by section 15 and section 15A are in identical terms the latter however having the additional requirement that the value of the controlled drugs amounts to €13,000 or more. In Re Cathcart, Ex Parte Campbell [1868] 5 Ch.App. 603 at 706 James L.J. said –
“Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the legislature has repeated them without alteration in the subsequent statute, I can see the legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given them.”

Having regard to the decision in The People (D.P.P.) v Byrne, Healy and Kelleher the identical words in section 15(1) and 15A(1) being part of a code should be accorded the same meaning and effect. It follows that in order to succeed in a prosecution under section 15A it is necessary for the prosecution to prove that the accused has in his possession or control a package and that the package contained something. It is unnecessary to prove that the accused knew that the package contained a controlled drug. In addition the prosecution must establish the value of the drug and in order to do so may rely on evidence given pursuant to section 15A(3). As it is not incumbent on the prosecution to prove that the accused knew that the package contained controlled drugs. It would be absurd to construe section 15A as requiring the prosecution to prove that he had knowledge of the value of the drugs, his knowledge of the existence of which the prosecution is not required to prove. To import into section 15A the requirement for knowledge of the value of the controlled drugs would lead to two sections of the same code expressed in exactly the same words being given an inconsistent construction. Where such an inconsistency would arise the so called “golden rule” expounded by Parker C.B. in Mitchell v Torrup [1766], Parke 227, does not apply –
“In expounding Acts of Parliament where words are expressed plain and clear the words ought to be understood according to the plain and natural signification and import, unless by such exposition a contradiction or inconsistency would arise in the Act by reason of some subsequent clause from which it might be inferred that the intent of Parliament was otherwise.”

In the present case it is appropriate to substitute for “Act” “code”.
Having regard to the foregoing I am satisfied that by necessary implication and on its true construction section 15A as to the constituent of the offence thereby created relating to the value of the controlled drugs does not require the prosecution to establish knowledge on the part of the accused of the market value of the controlled drugs in question.

3. The potentially onerous burden of proving mens rea is not a factor to be considered in the construction of the statute
Having found that mens rea in relation to the value of the controlled drugs is not a necessary constituent of an offence under section 15A of the Misuse of Drugs Act 1977 on the true construction of that section it is unnecessary to deal with the utilitarian argument which was considered by the Court of Criminal Appeal.

Disposition
I would answer the certified point of law as follows. In the prosecution of an offence contrary to section 15A of the Misuse of Drugs Act 1977 (as inserted by section 4 of the Criminal Justice Act 1999) it is not necessary that the prosecution prove that the accused knew or ought to have known that the market value of the controlled drug or the aggregate of the market values of the controlled drugs, as the case may be, amounts to €13,000 or more.

DPP v Power