JUDGMENT of Mr. Justice Fennelly delivered the 15th day of February, 2011.
1. The appellant was charged, at the Circuit Criminal Court in November 2007, with two counts of possession of controlled drugs, namely amphetamines, for sale or supply at Kill West, Kill County Kildare on 16th November 2004. The first, the section 15A count, alleged that the drugs had a market value of €13,000 or more. In the second count, possession of the same drugs for sale or supply was charged but no value was alleged. The appellant pleaded guilty on arraignment to the latter count but contested the first. The only real issue was as to the adequacy of proof of the value of the drugs, which is the issue before the Court on this appeal. The jury, sitting with his Honour Judge O’Shea, convicted the appellant. The appellant was sentenced to ten years imprisonment on this count and to four years imprisonment to run concurrently on count number 2.
2. By the first count, the prosecution alleged that the appellant had had in his possession for the purpose of sale or supply a quantity of amphetamines with a market value of €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. This offence attracts a minimum presumptive sentence of ten years’ imprisonment. Hence, the interest of the appellant in contesting the value of the drugs.
3. As the appellant puts it, as a result of his plea of guilty to the second count, the only live issue which the jury had to consider was the question of the value of the drugs concerned. Counsel for the appellant submitted at trial that the proof of value of the drugs proffered by the prosecution was insufficient and that he had no case to answer. The learned trial judge refused his application for a direction.
4. The appellant appealed against his conviction to the Court of Criminal Appeal on the single ground that:-
“The learned trial judge erred in fact and in law in not withdrawing the case from the jury on an application at the close of the Prosecution case of no case to answer, made on the basis that there was no evidence on which a properly directed jury could come to the conclusion and be satisfied beyond a reasonable doubt that the market value of the drugs concerned was €13,000 or more.”
5. The Court of Criminal Appeal concluded that there had been no error of law on the part of the learned trial judge in failing to withdraw the case from the jury and that there was sufficient evidence on which a jury properly directed was entitled to come to the required conclusion with regard to the market value of the drugs, found in the possession of the appellant. The Court dismissed the application for leave to appeal.
6. The Court of Criminal Appeal, pursuant to section 29 of the Courts of Justice Act, 1929, as substituted by section 22 of the Criminal Justice Act, 2006, certified the following as a question of law of exceptional importance:
"In a prosecution pursuant to section 15A of the Misuse of Drugs Act 1977, for the purpose of ascertaining the amount of a controlled substance present in a powder in a sealed container or in a number of such containers proven by expert evidence to contain that particular controlled substance, may the amount of that controlled substance present in the powder be established by the oral evidence of an expert as to the range within which amounts of that controlled substance in other powders generally fell and, if the answer is in the affirmative, must the prosecution disclose to the defence a statement or a report by that expert setting out the facts upon which her or his opinion as to that range is based?"
7. In addition to the foregoing ground, the appellant was granted leave by this Court pursuant to Order 58, Rule 25(3) of the Rules of the Superior Courts to argue the single ground of appeal advanced before the Court of Criminal Appeal as set out above, effectively that the learned trial judge erred in not withdrawing the case from the jury.
8. These are not separate grounds. The certified question relates to the sufficiency of proof of value of the drugs and, in turn, to the ground on which the appellant submits that the case ought to have been withdrawn from the jury.
9. On 16th November 2004 members of the Garda National Bureau of Criminal investigation, acting on confidential information received, stopped a motor vehicle on the Naas Road near Kill. The driver was the appellant. He was alone in the vehicle. When asked if he knew why he had been stopped, he replied that there was “stuff in the car.” Asked what the stuff was, he said he thought it was “speed,” adding “drugs, you know.” In evidence, it was established that this was slang for amphetamines. He said there were ten kilograms of drugs on the back seat. During later interview, when detained pursuant to the Criminal Justice Act, 1984, he signed a note of these statements.
10. The gardaí took possession of the drugs, which were contained in a red Marks & Spencer shopping bag, which, in turn contained zip-lock bags filled with white powder. In total, they weighed 9.717 kilograms.
11. At trial, Detective Garda Grennan gave evidence estimating the value of the drugs at €145,755, using a price of €15,000 per kilo. He assumed that the each of the packs contained at least 10% of amphetamine. The witness made it clear that proof of the actual contents of the bags was a matter to be proved by the forensic scientist.
12. The prosecution called Dr Mary Casey, a forensic scientist attached to the Forensic Science Laboratory at Garda Headquarters. She had a B.Sc in Chemistry and a Ph.D. in synthetic chemistry. She confirmed the weight at 9.717 kilograms. She analysed five of the packs and found them to contain a white powder which contained amphetamine.
13. Dr Casey was challenged in cross-examination on two aspects of her evidence. Firstly, she had analysed only five of the packs, not all ten. Secondly, she had established that the five packs contained some amphetamine, but not how much.
14. With regard to the first point, Dr Casey said that the analysis of the sample of five was carried out in accordance with accredited laboratory procedure, which was routinely to analyse half of the packs. That procedure was based on a statistical model for sampling. She could say with 100% certainty that the five packs contained amphetamine and with 99% certainty that at least seven of the packs contained amphetamine. She added that, taking into account the general appearance of the packs and the powder her professional opinion was that it was highly unlikely that any of the packs would be negative.
15. She agreed that she had not examined the extent of the amphetamine content. Her evidence on this point was
“I can’t say for definite what the purity of the samples are but I can give a range in which amphetamine purities generally fall between that is maybe 10 and 40% but the samples were not quantified because quantification is not a routine course of qualitative analysis so I cannot put an exact figure on the purity but I can give a range in which the purity of amphetamine powders generally falls between.”
16. In cross-examination, she agreed that the presence of as little as 1% would trigger the test she had carried out but repeated that the range is generally between 10% and 40%.
17. The judgment of the Court of Criminal Appeal was delivered by Denham J, who emphasised that the burden remained on the State to satisfy the jury beyond reasonable doubt as to the market value of the drugs.
18. The judgment examined the evidence of value given in the trial court, by Dr Mary Casey and by Detective Sergeant Grennan on the value of the drugs. It noted that Dr Casey had not been cross-examined on the sampling procedures she had employed, that she was an expert and that her professional qualifications had not been challenged. The Court held, referring to Director of Public Prosecutions v Finnamore, [2009] 1 IR 153, that there was no principle of law requiring that each and every package had to be individually analysed and that probability theory can be used, based on a representative sample, to show that the presence of a particular substance can be estimated to such a degree of accuracy that the contrary cannot be supposed so as to satisfy the criminal standard of proof.
19. In respect of the evidence of Detective Sergeant Grennan, the court pointed out that, on the basis of the presence of even 10% amphetamine in five of the packs, the value would have been €72,877.50, but only €7,287.75 with a content of only 1%. By reference to the evidence of Dr Casey that the level of amphetamine impurities was generally in the range of 10% to 40%, the court concluded that the expression “between that is maybe 10 and 40%” in her evidence was in the nature of a mannerism and that she had declined to accept, in cross-examination that the range could be from 1% to 99%. Thus, there was evidence to go to the jury from which it could accept or reject this evidence and it was open to the jury to find that the quantity of the drug present in each pack was at least 10%.
20. The appellant questions the sufficiency of the evidence in two respects. The first relates to the extrapolation from the sampling and analysis of five packs that seven of them and, ultimately, all ten contained amphetamine. The second relates to the limited form of chemical analysis actually conducted: no quantitative analysis took place.
21. In DPP v Finnamore, the Court of Criminal Appeal dealt, on slightly different facts, with the question of proof of value in a section 15A case. The seised drugs, also amphetamine, were discovered by the gardaí as follows:
22. Two forensic scientists were involved. One, Dr Casey, examined the powder in one of the 48 packs and part of the loose powder. In each case, her evidence was that amphetamine was the “main” or “major component.” The other scientist found the presence of amphetamine in the powder in 16 of the 48 sacks but conducted no quantitative analysis. Macken J delivered the judgment of the Court of Criminal Appeal. The Court held there was “no principle or rule of law known to this court which requires that in each and every case, every package found must inevitably be individually analysed before a conviction can be considered safe.” (see page 181 of the report). On the facts, the court held that there was sufficient evidence upon which a jury, properly charged, “could safely and reasonably deduce or conclude that all the materials found were in fact the same as the materials which on analysis were determined to be prohibited drugs……” The Court emphasised that it did not follow that “in a different case, or on particular but different facts, it would not be necessary to analyse a greater number of packages found, or a greater percentage of a bulk product.”
23. The first part of the submission on behalf of the appellant, in the present case, questioned the qualifications of Dr Casey to give evidence consisting of statistical conclusions. An expert, it was submitted, cannot give evidence outside his or her range of expertise, particularly when the expert purports to rely upon conclusions which are based on statistical calculations. In making this submission, counsel for the appellant appeared to assume that statistical norms are outside the area of expertise of a forensic scientist. However, the submissions of the respondent draw attention to the fact that the professional qualifications and expertise of Dr Casey were not challenged during the trial.
24. Dr Casey, in direct evidence, explained that she had examined the powder in five of the packs. It was in cross-examination that she was invited to explain her conclusions with regard to the remaining packs. That was the point at which her expertise could have been challenged. She swore that she had followed “an accredited laboratory procedure” and that she was giving her “professional opinion.” There is no reason, a priori, to assume that statistical analysis is outside the area of expertise of a forensic scientist. The Court has no reason to question the extent of Dr Casey’s qualifications. It was open to the defence at trial to challenge the expertise of Dr Casey to give this evidence, but no objection was made. It follows that her evidence was admissible and that the jury were entitled to consider it.
25. For this reason, I would reject the submission that Dr Casey’s evidence extrapolating the results of analysis of five packs to seven did not provide a sufficient basis to permit the case to go to the jury. The existence of scientific evidence of the legitimacy of the statistical method used makes this case a stronger one than Director of Public Prosecutions v Finnamore, where it does not appear that Dr Casey had referred to “accredited laboratory procedure” or to “a statistical model for sampling.” The Court must proceed on the assumption that at least seven of the packs contained amphetamine. I would add that, as urged by the respondent in answer to this point, the evidence that the appellant admitted that he had “speed” in the car was capable of leading, as a matter of common sense, to the inference that all of the bags in the appellant’s possession contained amphetamine and not merely five or, indeed, seven of them.
26. In any event, on the facts, this is not the real point in the case. As I have already said, we must proceed on the assumption that at least seven packs contained amphetamine. However, even if, contrary to that clear conclusion, we were to limit the probative value of Dr Casey’s evidence to five packs, the value of €13,000 would be comfortably met, on Detective Sergeant Grennan’s evidence provided that, on the evidence, each of those packs contained at least 10% amphetamine. He worked on an assumption of a value of €15,000 per pack. That value was not challenged.
27. What then is the evidence from which the jury would be entitled to conclude that each of at least five of the packs contained that minimum quantity or proportion of amphetamine? Here the Finnamore case can be distinguished, because there was evidence, in that case, that, in the cases where analysis was performed, amphetamine was the “main” or “major” component. There is no such evidence in the present case.
28. Before proceeding, I would note the need to keep in mind that proof of value is an essential ingredient of the offence under section 15A. It is what distinguishes it from the offence of possession for sale or supply of an unquantified and unvalued amount of drugs. Most importantly, it is what has caused the Oireachtas, subject to exceptional mitigating circumstances, to mark the offence as one of extreme seriousness such as to require the court, in sentencing a convicted person, to impose a penalty of a minimum of ten years’ imprisonment. This is, of course, subject to the exceptions mentioned in the section. The ingredient of value must be proved to the satisfaction of the jury beyond reasonable doubt.
29. Dr Casey’s evidence was limited to establishing the presence of amphetamine in each of the five packs she had analysed. By extension, her opinion was that, as a matter of 99% certainty, amphetamine was present in seven of the packs.
30. But she had not determined the extent of the amphetamine content and was unable to say “for definite” what the level of presence of amphetamine was. She added that she could “give a range in which amphetamine purities generally fall.” She said that they “generally fall between that is maybe 10 and 40%...” The Court of Criminal Appeal excluded reliance on the word “maybe” as being a mere mannerism. One is left with one piece of scientific evidence establishing the presence of amphetamine, coupled with the opinion of Dr Casey that amphetamine purities “generally fall between 10% and 40%...” She did not expand on this; she did not say what percentage of cases was represented by the word “generally,” though she used it three times. Nor did she say whether she was referring to her own experience rather than what was known to the scientific world at large. She also said that “quantification is not a routine course of qualitative analysis…”
31. Everything turns on the meaning to be attributed to the word “generally.” It is a word of flexible use. It may imply, perhaps, that a majority of cases fall within that range, but, in a weaker sense, may mean no more than “commonly.” If the facts were that analysis of seised drugs for amphetamine always or nearly always falls within the 10/40% range, one might have expected the witness to say so. Instead, she used the word “generally” three times. In its normal usage the word leaves open the very real possibility that there are cases outside that range. It cannot be assumed that Dr Casey meant any more than that there was probably 10% to 40% amphetamine present.
32. Probability is not enough. The evidence of Dr. Casey did not go so far as to exclude the very real possibility, even if uncommonly so, that the percentage of amphetamine present in the seven packs referred to above could have been as low as 1%. Such a percentage was sufficient to produce the result which she obtained from her test. If that were the case the value of those drugs would be less than the amount required to sustain a conviction for the offence in issue. In the circumstances of this case Dr. Casey’s evidence concerning the percentage of amphetamine present in seven of the ten packs, to which Detective Sergeant Grennan referred in his evidence, was the only evidence on which the jury could reach a conclusion as to the value of those drugs. I do not exclude, in other circumstances or cases, that such evidence combined with other non-scientific evidence could be considered sufficient to allow the case to go to a jury. It is the totality of the evidence before the jury which is important. That evidence must be such that, if accepted, and having regard to the onus of proof beyond reasonable doubt, would entitle a jury to reach a verdict of guilty.
33. It can, of course, be said that, looking at all the circumstances, there is every reason to suspect that the drugs had a significant amphetamine content and that the admissions made by the appellant carry some weight. Nonetheless, the proof of value is an objective matter. In the present case, there is nothing to prove value except the scientific evidence combined with that of Detective Sergeant Grennan.
34. In this case it was not sufficient for the prosecution to prove the mere presence of amphetamine and to rely on an unexplained range of values which generally applies without evidence which addressed the extent to which there are cases outside the range. This left a gap in the prosecution evidence. I believe that the case should have been withdrawn from the jury. I would allow the appeal and set aside the conviction of the appellant in respect of count number 1 on the indictment.
35. I would not direct a retrial. There is no reason to believe that Dr Casey would be in a position to give any different evidence on another occasion.
