The Supreme Court
Supreme Court appeal number: S:AP:IE:2024:000166
[2025] IESC 25
Court of Appeal record number: 2024/ 133
Dublin Circuit Criminal Court bill number: DUDP1022/2023
Dunne J
Charleton J
O'Malley J
Murray J
Donnelly J
Between
The People (at the suit of the Director of Public Prosecutions)
Prosecutor/Respondent
- and -
DT
Accused/Appellant
Judgment of Mr Justice Peter Charleton delivered on Wednesday 4 June 2025
1. When the legislature deems the possession of certain articles and substances a criminal offence, the facts required to prove the core issue of possession of that contraband is the central issue on this appeal. As a concept across many areas of criminal law, possession is not given a central definition, despite its applicability to such key prohibitions as controlled drugs, explosives, firearms and offensive weapons. Hence, this judgment seeks to outline the conceptual basis of possession and its elements. Often, possession is to be deduced from facts and circumstances, and in this regard, sections 18 and 19 of the Criminal Justice Act 1984 enable inferences adverse to an accused to be drawn in particular circumstances and following a prescribed procedure. Where possession is the offence, the applicability of a provision enabling an adverse inference from possession may be a circularity that undermines the duty of the prosecution to prove the core of its case. Here, the possession is alleged to be of drugs and the circumstances that the prosecution propose to prove against the accused DT have given rise to a dismissal of some of those charges and thereafter restoration by the Court of Appeal. The accused DT contends that none of the charges against him are supported by sufficient fact enabling a safe inference of possession, while the prosecution assert their soundness as enabling a jury to convict.
Caution
2. The summary which follows represents the facts proposed by the prosecution and not established facts. This Court is making no ruling on any facts presented. The prosecution will attempt to demonstrate its case, bearing as it does the burden of proof, and the Court's task is to define the circumstances in which facts and circumstances may be taken as sufficient to enable a jury to find that the accused was in possession of contraband. Whether a jury so decides or not is a matter for shrewd assessment by them on the basis of a common-sense appraisal of the facts as they emerge at trial. It cannot be predicted as to how any fact will be assessed by the jury or as to what inference may be drawn from fact.
3. The procedural history of this matter is such that on being returned for trial, the accused DT applied to the Dublin Circuit Criminal Court under s 4E of the Criminal Procedure Act 1967, to dismiss all charges against him. Of the 10 charges, 5 were dismissed as untenable by Judge Martin Nolan, while 5 remained and in the Court of Appeal, all charges were restored. The detail of that follows.
Background allegations
4. On 14 November 2022, An Garda Síochána obtained a warrant to search an underground car park in Dublin. The search was conducted on the morning of 18 November 2022. During the course of this search, the Gardaí received information leading to an application for and grant of a further warrant on the same day to search a duplex apartment in the same building. This search warrant was executed later that same morning. Upon entering the apartment upstairs, they found DT and two other individuals, one of whom was EH who was apparently living there as the official tenant. There is no evidence of the exact positions of the individuals that were in the apartment when Gardaí arrived. One team of Gardaí entered the apartment and then withdrew and were replaced by members of the drug squad. It is on the observations of the latter that the prosecution depends.
5. The Gardaí observed several items in the apartment that are asserted by the prosecution as suggesting that the apartment was being used to produce green-coloured cannabis-infused sweets, resembling gummy bears, of which there were more than 1,400 in the kitchen-living area. The layout of the apartment is that there is a front door leading to stairs up to a kitchen-living area and a separate hot-press. At entry level there is a bedroom to the left, occupied by EH and with his personal effects obviously present. On the other side of the stairway is another room that could be used as a bedroom but which contained a number of cannabis plants.
6. Apart from kitchen utensils and seating, the kitchen-living area contained (gummy-bear shaped) moulds, syringes, food colouring, and flavourings, which the prosecution propose were to be used for the production of cannabis-infused sweets. The photographs show a trí na chéile disposition here, including a pot on the stovetop which contained a green gelatinous substance and the serried ranks of gummy bears that were similar in colour perhaps to the gelatinous substance found on the stovetop. Also in that room were some transparent bags of dried cannabis leaf and a secateurs.
7. The total number of gummy bears found in the apartment amounted to 4,331 with a street value asserted of approximately €43,000, based on a sale value of €10 each. These gummy bears were the subject of Counts 1-3 on the indictment, which relate to possession and trafficking of cannabis in the form of these sweets. Additionally, the bags of dried cannabis plants found in the kitchen-living room area are asserted to be valued at approximately €4,000 to €5,000. These prepared cannabis leaf items were the subject of Counts 4 and 5. Two mobile phones were seized by Gardaí in that area. One phone had a black cover, and the other had a clear cover. The phone with the clear cover contained a bank card bearing DT's name. This was found on the radiator in the kitchen-living room of the apartment. Although DT was not a named resident of the apartment, his passport was also found on an extractor fan above the stovetop where the gelatinous material was apparently cooking.
8. Gardaí discovered cash in two separate batches, one amounting to €12,000, and the other to €2,300. That was in EH's bedroom, it seems. Additionally, a quantity of cocaine was recovered from the apartment. DT has not been charged in relation to either that money or the cocaine. There were two grow locations in the apartment, where cannabis was being cultivated. The upstairs grow location was located in the small hot-press area adjacent to the kitchen-living room area and contained 12 small cannabis plants, along with others in a container, still in the early stages of ontology. This gives rise to Counts 6 and 7 on the indictment. Downstairs there was another growing place, opposite the bedroom of EH, and it contained four large, maturing cannabis plants. This discovery led to Counts 8 to 10 on the indictment. Both growing areas were equipped with cultivation apparatuses, including what appears to be powerful lighting, fans for ventilation, heaters to maintain temperature, extra electrical wiring to power the equipment, and a carbon dioxide cylinder, which may enhance plant growth. No forensic evidence, such as fingerprints or other trace elements, linked DT to these two grow locations.
9. On 18 November 2022, DT and the two others present in the apartment were charged and sent forward for trial. The charges may be divided based on the location and nature of the evidence. Counts 1–5 relate to the possession by DT of drugs found in the kitchen/living room area; including cannabis-infused gummy bears and the bags of cannabis leaf. Counts 6–10 relate to the possession and cultivation of cannabis in the two grow areas located, on the one hand adjacent to the kitchen-living room area in the hot press and on the other, downstairs opposite the bedroom of EH.
10. The full set of charges comprised five in relation to the kitchen-living room area: (1) unlawful possession of cannabis, contrary to sections 3 and 27 of the Misuse of Drugs Act 1977 as amended by the Misuse of Drugs Act 1984; (2) same possession but for sale or supply; (3) same possession for sale or supply but where the value exceeded €13,000 street sale; (4) a possession charge for the cannabis leaf; and (5) same possession but for sale or supply. There are also the other charges for the grow locations, upstairs beside the kitchen and downstairs opposite the EH bedroom: (6) cultivation of plants of the genus cannabis, in the upstairs hot press, contrary to sections 17 and 27 of the Misuse of Drugs Act, 1977, as amended by section 11 of the Misuse of Drugs Act, 1984 and section 8 of the Irish Medicines Board (Miscellaneous Provisions) Act, 2006; (7) a possession charge for this hot press plant; (8) a mirror count to (6) for the downstairs cultivation room; (9) possession of the drugs in that downstairs growing area; and (10) possession for sale or supply of the drugs in that downstairs area. The prosecution seeks to supplement this evidence with refusals to account under sections 18 and 19 of the Criminal Justice Act 1984, whereby an inference of involvement may be drawn by the jury, it is claimed, or a judge on summary trial. These sections are set out later.
Rulings of Judge Nolan under s 4E
11. DT applied to the trial judge, His Honour Judge Martin Nolan, on 10 April 2024 to dismiss all ten charges against him. This application was brought under section 4E of the Criminal Procedure Act 1967 (as amended) which allows an accused person to request the dismissal of charges if the evidence presented is deemed insufficient. There follows the relevant section:
4E(1) Subject to subsection (1A), at any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused.
(1A) Where—
(a) a court makes a relevant order within the meaning of Part 2 of the Criminal Procedure Act 2021 at a preliminary trial hearing (within the meaning of that Part) to the effect that evidence shall not be admitted at trial, and
(b) the order is appealed under section 7 of that Act,
the accused may not make an application under subsection (1) to dismiss a charge to which the order relates until that appeal is determined or withdrawn.
(2) Notice of an application under subsection (1) shall be given to the prosecutor not less than 14 days before the date on which the application is due to be heard.
(3) The trial court may, in the interests of justice, determine that less than 14 days' notice of an application under subsection (1) may be given to the prosecutor.
(4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.
(5) (a) Oral evidence may be given on an application under subsection (1) only if it appears to the trial court that such evidence is required in the interests of justice.
(b) In paragraph (a) "oral evidence" includes—
(i) any evidence given through a live television link pursuant to Part III of the Criminal Evidence Act, 1992, or section 39 of the Criminal Justice Act, 1999, or
(ii) a videorecording of any evidence given through a live television link pursuant to that Part or section in proceedings under F14[section 4F, or]
(iii) any other videorecording, or an audio recording, which may be admitted by the trial court as evidence of any fact stated in it.
(6) Where the trial court is satisfied that it is in the interests of justice that any document required under this Part to be served on the accused or his solicitor be served at the hearing of an application under this section—
(a) the prosecutor shall serve the document on the accused or his solicitor, if any, at the hearing, and
(b) the court may, if it considers it appropriate to do so, adjourn the hearing for that purpose.
(7) Where a charge is dismissed by the trial court under subsection (4), the prosecutor may, within 21 days after the dismissal date, appeal against the dismissal to the Court of Criminal Appeal.
(8) On an appeal under subsection (7), the Court of Criminal Appeal may—
(a) affirm the decision of the trial court, or
(b) quash the decision of the trial court, in which case the trial of the accused may proceed as if the charge had never been dismissed.]
12. Counsel for DT had argued that inferences resulting from possession could not bolster a possession charge. The prosecution argued that the facts presented in this case gave rise to an ordinary or natural inference that the apartment was being operated as a cannabis factory from growing to processing. Counsel for the prosecution further challenged the defence's assertion that inferences cannot be used to determine the admissibility of evidence. Counsel referred to The People (DPP) v Wilson [2017] IESC 53, [2019] 2 IR 158, where the Supreme Court held that when a defendant is questioned about one offence but prosecuted for a different one, inferences about the separate offence cannot be used. However, it was argued that the situation here differs, as DT was questioned about his presence at the premises in relation to specific offences, and he failed to provide an explanation. It was argued that even if the items in the kitchen were not directly linked to cannabis cultivation, the presence of cannabis in close proximity to those items could still support an inference of DT's involvement in the broader operation.
13. The trial judge ruled in favour of DT dismissing the counts relating to the upstairs and downstairs grow locations; 6 to 10 but not counts 1 to 5. The trial judge ruled that the inferences regarding the jelly-making operation were admissible, and that section 4E applied to those counts. However, the counts related to the cannabis plants found in separate rooms (counts 6 to 10) were excluded due to insufficient connection in the evidence.
Court of Appeal decision
14. The prosecution appealed the trial judge's dismissal of counts 6 to 10, claiming that the decision was wrong in law. The Court of Appeal (Edwards, McCarthy, MacGrath JJ [2024] IECA 252), ruled that the trial judge erred in dismissing the charges against DT, and that the prosecution's appeal should be allowed. Counsel for the defence argued that there was insufficient evidence to link DT to the criminal activities at the property, contending that he was no more than a visitor. The defence contended that DT's presence in the kitchen-living room with his phone on the radiator at the time of the Gardaí's arrival did not establish any involvement in the illegal activities. DT further challenged the use of evidence admitted under s 18 and 19 of the Criminal Justice Act 1984, arguing that inferences drawn from his failure to account for his presence in the apartment should not have been used to establish criminal liability, as inferences alone cannot ground a conviction. It was argued that there was no direct link between DT and the cannabis being grown in the separate grow areas or any obvious connection between his presence in the living room and the illegal activities, and that the prosecution's case relied too heavily on circumstantial evidence.
15. The Court allowed the appeal, concluding that the trial judge erred in dismissing the charges against DT for the following reasons:
18. By definition in the context the concepts of growing cannabis and possessing it are inextricably linked. The evidence, as set out in the statements, i.e., on the prosecution case, disclosed the commission of more than one offence. The provisions are not set at nought just because a multiplicity of offences may be disclosed on the same facts. The crucial point is that it must be clear about what the suspect was being asked on the totality. This is what happened here.
19. The provisions giving rise to inferences are relevant when a judge is deciding whether or not to dismiss charges under section 4E. The judge does not have to decide whether or not they could be relied upon by a jury but rather must decide himself on the existence or admissibility of such evidence and reach his conclusion accordingly. A jury might not ultimately rely upon them in deciding whether an accused is guilty or not guilty, but this is a separate matter. This must follow because the judge must take the prosecution's evidence at its height, and he fell into error here in effect in asking or answering the wrong question. Thus, in effect, he did not take into account the inference provisions (to put the matter shortly) in his decision or did not do so properly.
20. As to control or possession, counsel for the prosecution relied, correctly in our view, on the following statement of principle from People (DPP) v. Foley [1995] 1 IR 267 in this regard: -
"...an inference of knowledge and control would be drawn from the open and obvious presence of an article in circumstances where the accused's relationship to it would lead to a conclusion that he had knowledge of its presence and in the circumstances the trial court had been entitled to draw the inference that all the occupants of the bed-sit were in joint possession of the firearms and ammunition".
21. Counsel for the respondent referred to People (DPP) v. Ebbs [2011] 1 IR 778 where O'Donnell J (as he then was) referred with approval to the definition of possession articulated by Lord Guest in Reg v. Warner [1969] 2 A.C. 256. This definition was taken from the Dictionary of English Law (Earl Jowitt) (1959), at page 1367, which articulated it as follows:
"First, there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs...".
All elements of that test for possession or control are capable of being proved here on the evidence.
22. We conclude that the judge was wrong in taking the view that the evidence was insufficient to permit the matter to proceed and to dismiss the charges. There is little point in reprising the evidence but we might say that the crucial elements are the open activities in the living room manifest for all to see associated with a sophisticated growing operation in its immediate vicinity (cannabis was also found in that room) and evidence sufficient to exclude a transitory presence in the house in the midst of open criminality because of the presence of the respondent's mobile phone and bank card in one area and the passport elsewhere (in circumstances where the passport was found above the pot of green gelatinous material). As a matter of common sense, individuals do not leave valuable items in two separate locations unless they have something more than a transitory connection with premises. We also take into account on the present appeal, the proper application of the inference provisions. This case is worlds away from one involving mere presence as a visitor or otherwise.
Application for Leave and Determination
16. DT sought leave to appeal the Court of Appeal's decision to this Court seeking the reinstatement of the trial judge's original dismissal of Counts 6-10. For the following reasons set out in its determination of 4 February 2025 ([2025] IESCDET 14) this Court granted leave:
7. The full submissions seeking leave are appended and do not require repetition. For DT, it is asserted that either he is in possession of contraband, here drugs, or he is not and that s 18 cannot be used to prove what the prosecution needs to prove: possession. He claims that there is not evidence of possession on counts 6-10 on which the judge, properly he asserts, on a preliminary application, dismissed the charges. This is because, in his view, the upstairs grow location and downstairs grow room were not where he was and the doors were shut. DT was not, apparently, the tenant and whether he lived there or not is said to be crucial. Also, there were other people in the flat and why could it not be their possession and not his, he asks.
8. The DPP contends that no issues of public importance or in the interests of justice arise in this case. It is said that the admissibility of, and the weight to be accorded to circumstances that may be proven in the case. The presence of others on the premises is not relevant or is a matter of fact and the lack of proof as to ownership or tenancy is a matter for the jury.
9. This Court holds that leave to appeal should be granted in this case. The analysis of inference whereby possession may be proven is an essential element in cases where the prosecution rely on that category of offences where a person is charged by reason of the unlawfulness in itself of an object such as a drug or a firearm or a bomb. This is of general importance. As to whether possession must first be proven before inferences under s 18 and 19 arise, gives consideration of the level of proof or whether this is mere reasonable belief in the deployment of such assistance in proof.
Inference provisions
17. The relevant provisions of the Criminal Justice Act 1984 (as amended) are:
18(1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—
(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,
was requested by the member to account for any object, substance or mark, or any mark on any such object, that was—
(i) on his or her person,
(ii) in or on his or her clothing or footwear,
(iii) otherwise in his or her possession, or
(iv) in any place in which he or she was during any specified period,
and which the member reasonably believes may be attributable to the participation of the accused in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge's directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.
(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for a matter to which subsection (1) applies.
(3) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for a matter to which that subsection applies might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.
(4) Nothing in this section shall, in any proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section,
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section, or
(c) be taken to preclude the drawing of any inference from a failure or refusal to account for the presence of an object, substance or mark or for the condition of clothing or footwear which could properly be drawn apart from this section.
(5) The court (or, subject to the judge's directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of the matter concerned was first given by the accused.
(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
(7) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.
(8) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.
(9) In this section "arrestable offence" has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997.]
19(1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—
(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,
was requested by the member to account for his or her presence at a particular place at or about the time the offence is alleged to have been committed, and the member reasonably believes that the presence of the accused at that place and at that time may be attributable to his or her participation in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge's directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.
(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for his or her presence at a particular place under subsection (1).
(3) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for his or her presence at a particular place might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.
(4) Nothing in this section shall, in any proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section,
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section, or
(c) be taken to preclude the drawing of any inference from the failure or refusal of a person to account for his or her presence which could properly be drawn apart from this section.
(5) The court (or, subject to the judge's directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of his or her presence at a particular place concerned was first given by the accused.
(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
(7) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.
(8) In this section "arrestable offence" has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997.]
Submissions
18. A number of cases are cited by DT asserting a fundamental deficiency in any safe proof of possession of contraband and of cultivation arising from these circumstances; The People (DPP) v Ebbs [2011] IECCA 5; Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480, Minister for Posts and Telegraphs v Campbell [1966] IR 69. It is asserted that there is no proximity sufficient to establish possession either in the kitchen-living room area or of the early growth plants upstairs in the hot press or downstairs in the bedroom area opposite that of EH. Cited are R v Whelan [1972] NI 153 and The People (DPP) v Byrne, Healy & Kelleher 1998 WJSC-CCA 5287. These circumstances are asserted to be insufficient, citing The People (DPP) v Boyle [2010] 1 IR 787 and The People (DPP) v Choung Vu [2015] IECA 257. This is claimed to be supported by Canadian and Australian authorities; R v Hess (No 1) (1948), 94 CCC 48, 8 CR. 42 (BCCA), R v Colvin (1942) 78 CCC 282 R v Gladue (1999), 58 BCR 204, R v Choudhury [2021] ONCA 560, R v Berube [2004] ABQB 131, R v Egresits [2002] BCCA 163, R v Sandhu [2023] AJ No 1273, Zenuni v The King [2022] SASCA 106.
19. Regarding the s 4E application, DT argues that the court must determine whether there is a sufficient case to put the accused on trial. The court must consider whether the evidence, when taken at its strongest, is sufficient to establish a prima facie case. In Cruise v O'Donnell [2007] IESC 67, [2008] 3 IR 230, the Supreme Court outlined that the trial court should consider the evidence in its strongest form and whether the facts disclosed are enough to make out a sufficient case. DT further argues that cases such as R v Carden [1879] 5 QBD 1 are authority confirming that the court must only commit an accused to trial if there is sufficient evidence to justify it. An issue arises concerning the inferences a trial court can draw from facts when determining an application pursuant to s 4E of the Criminal Procedure Act 1967. DT contends that the particular issue has not yet been fully addressed in Irish courts, but similar questions have arisen in other jurisdictions, particularly in England and Wales. Section 6 of the UK Criminal Justice Act 1987, which allows for pre-trial applications to dismiss charges, stipulates that a judge must dismiss a charge if the evidence presented would not be sufficient for a jury to convict the defendant; R (on the application of IRC) v Crown Court at Kingston [2001] EWHC 581. Proving possession by asserting possession is claimed to be tautologous. Section 19 enables inferences from presence, but there was no specific link, it was claimed, in the questions asked whereby the grow locations, upstairs and down, might enable an inference.
20. The submissions for the Director of Public Prosecutions outline that the concept of possession is not statutorily defined and has been developed by judicial interpretation. In order to elucidate its meaning, there is an analysis provided of a number of cases; Minister for Posts & Telegraphs v Campbell [1966] IR 69, The People (DPP) v Gallagher [2006] IECCA 110, [2007] 2 IR 246, The People (DPP) v Tanner [2006] IECCA 151, The People (DPP) v Wharrie [2017] IESC 47, [2017] 2 IR 743. Proximity to contraband is an important factor in establishing possession, but it does not need to be limited to mere physical reach.
21. The prosecution further contends that possession can be inferred even when the accused is not physically present in the room where contraband is found. In this case, the accused was found in an apartment that housed the entire drug manufacturing operation, with various stages of drug processing happening in different rooms. The connection between these rooms is argued to be vital to the case, as the production line was spread across multiple areas of the apartment. The cannabis was being grown in one room, processed in another, and eventually turned into cannabis gummies in the kitchen area. This continuous and interlinked operation within one space negates, it is contended any artificial distinction between different rooms or stages of production. It is argued that, importantly, the operation itself spanned the entire apartment, and DT's presence within this space is enough to infer that they were in control of the drugs, regardless of whether they were physically present in every room. An inference is argued to be possible under s 19 because of silence as to the accused DT's actual presence in that place, namely the flat.
22. Section 4E of the Criminal Procedure Act 1967, as amended, is contended by the Director of Public Prosecutions to provide a mechanism for dismissing charges before a trial if there is insufficient evidence to sustain the charges. However, the standard for dismissal is high, and the court is required to consider the evidence in favour of the prosecution at its highest. In this case, the evidence provided by the prosecution, including the scale of the operation, the presence of the accused in the apartment, and the connection between the various rooms, is argued to be sufficient to justify the trial proceeding.
Possession
23. In the case of non-regulatory criminal offences, there must be a culpable element to possession as well as that state of control over an object or substance which constitutes the physical action of possessing something. The Model Penal Code of the American Law Institute classifies possession as a culpable state when, according to Article 2.1(4) "the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." The Criminal Code of Canada encapsulates the two elements of control and awareness thus in s 4(3):
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
24. Those elements of having a thing on one's person - as in a wedding band on a finger, or a wallet in a pocket - in one's custody (as in the books and personal effects in a person's study) embracing what is on one's person or in one's baggage or in a place to which one has resort, or of the use of an agent to possess on one's behalf, and also of two or more participating in the act of possession, concisely reflect the common law. It is the purpose of a code to act as a reference, to declare existing law and to ground changes in an identifiable locus, instead of in jigsaw multiple legislative provisions. Hence, it was unnecessary, but useful as partial codification, for s 1(2) of the Misuse of Drugs Act 1977 to provide:
For the purposes of this Act any controlled drug, pipe, utensil or document of which a person has control and which is in the custody of another who is, either under the person's control or, though not under the person's control, acts on his behalf, whether as an agent or otherwise, shall be regarded as being in possession of the person, and the provisions of section 16 and section 18 together with the provisions of this Act relating to the possession of controlled drugs shall be construed and have effect in accordance with the foregoing.
25. Possession embraces states of connection that move outside of the ideal stated by Lord Wilberforce in Warner v Metropolitan Police Commissioner [1969] 2 AC 256, 309:
Ideally, a possessor of a thing has complete physical control over it; he has knowledge of its existence, its situation, its qualities; he has received it from a person who intends to confer possession of it and he has himself the intention to possess it exclusively of others.
26. Possession can embrace ownership or can comprise custody alone. The Canadian Criminal Code establishes that possession as a concept in criminal law can be defined, rather qualifying the statement of MacDermott LCJ in R v Murphy, Lillis and Burns [1971] NI 193, 199 that the word itself is "ambiguous . . . and always giving rise to trouble." While the "precise meaning must depend on the context and policy of the statute using it", it is possible to describe the categories of control and of awareness which establish criminal liability.
27. Firstly, possession is a physical state of control over an object and without that degree of dominion whereby the object may stay where it is or be moved or otherwise dealt with or processed, there is no possession. Clearly, it would abuse the ordinary meaning of what is a common word to contend that what a person is wearing, what is in that person's pockets, handbag or briefcase is not in their possession. Even if drugs are slipped into a rucksack on the back of a traveller in an airport, that person has unwitting dominion over the contraband. What is in one's home is under one's dominion and doors are locked and alarms are activated to ensure that thieves do not enter and steal. If they do, possession is lost, albeit unwittingly. Where a person prepares for a holiday by bringing his most treasured goods to a safe-deposit bank or to the home of a friend, possession is not lost. In Sullivan v Earl of Caithness [1976] 1 All ER 844, the defendant illegally held guns without the necessary firearms certificate. By placing the guns in the London flat of his mother, he did not lose possession; he still held the guns. But, had the authorities so decided, the mother could also have been prosecuted since there is nothing in the concept of possession which prevents two or more people having dominion over the same object. They may quarrel over an object being left, for instance, in someone's garden shed for concealment or for safe keeping, but the dominion exercised over the property suffices for the occupier to be liable for what he or she agreed should be put there. Sometimes this is referred to as constructive possession, but there is nothing constructive about a person hiding something in a place in order to retrieve it later. That is an unnecessarily confusing piece of legal taxonomy. In Williams v Douglas (1949) 78 CLR 521, gold was hidden by the accused in the communal bathroom of a hotel. There, no one else could readily interfere with it. This, according to the High Court of Australia was sufficient control to constitute possession. Even within a statutory definition requiring 'possession or control' possession "does not mean actual physical possession or manual detention." Securing the metal by hiding it meant it was "as effectually under his control or his de facto possession as if he had locked it in a box in the bathroom, a box of which he and he alone had the key". Similarly, if a person orders an illegal substance over the internet for delivery to a stated address, once the goods arrive there, possession begins.
28. Two examples suffice to illustrate that, as in any criminal enterprise, possession may be through joint enterprise and that control of the article or substance is the key concept. In Jenkins v DPP and Another [2020] EWHC 1307 (Admin), the applicant gave a lift to a woman. She then produced a stun gun. He protested. Nonetheless, he let her put it in the glove compartment of his car and drove off to be stopped by police and then successfully prosecuted for possession. Carr LJ, reviewing the conviction, held that this temporary acquiescence in having the gun in his car, signified by his willingness to drive the person in who's custody the gun was, amounted to possession:
17. Whether a person is in possession of a weapon is a question of fact; possession can be proprietary and/or custodial (see Hall v Cotton [1987] QB 504 at 509C and 510C). It is not confined to physical possession. As the Magistrates were advised, there is no need for the prosecution to prove a conscious decision to be the possessor. What is required are words or actions revealing power or control, even if only for a very short period, such as fairly amount to possession; the prosecution must prove that an accused was knowingly in control of something in circumstances in which he was assenting to be in control of it....
18. In Warner v Metropolitan Police Commissioner [1969] 2 AC 256] Lord Pearce when referring to physical possession said this: 'By physical possession or control I include things in his pocket, in his car, in his room and so forth. That seems to me to accord with the general popular wide meaning of the word 'possession' and to be in accordance with the intention of the [Firearms] Act.'
19. ...mere knowledge of the existence and presence of the gun would not by itself establish possession on the part of Mr Jenkins. Nor did the Magistrates proceed on that basis. Here, as the Magistrates found, there was more than mere knowledge; there was at least a degree of control on the facts as expressly found by them: the presence, to Mr Jenkins' knowledge, of the stun gun in the glove box of his car which he was driving when stopped by the police.
20. Even on the basis that the Magistrates accepted all of Mr Jenkins' oral evidence, the stun gun was, to Mr Jenkins' knowledge, in his car which he chose then to drive. Despite initially objecting to its presence, he then allowed the stun gun to be placed and remain in his car which he then drove away (for some 10 minutes), controlling its location. He could have insisted Ms Price leave the car with the stun gun; he could have left the car in the event that she refused. Whilst Mr Jenkins may have expressed concern at the outset, any objection did not prevent him from voluntarily continuing on his way with the stun gun in place. The fact that the period of possession was short-lived did not afford Mr Jenkins any defence.
29. The second example is of a more common kind, albeit that in some circumstances a claim of coercion may be raised, but perhaps rarely fit the limited parameters of the defence of duress; see The People (DPP) v Gleeson [2018] IESC 53, [2019] 1 ILRM 1, [2019] 2 IR 196, [2018] 11 JIC 0102. In Albert Paulton v R [2022] JMCA 1, the Court of Appeal of Jamaica reiterated the basic concept of possession as being control, albeit not exclusive, though sometimes temporary custody of a less than enthusiastic kind. The context was of a gun being found in a container in the accused's home, a form of possession demanded of him by an associate which, he said, in a statement to the police, he did not want, but which, even still, met the definition. According to Brooks P:
[17] The definition of possession in law, has long been established in this jurisdiction. It may be distilled from the decision of the Privy Council in Director of Public Prosecutions v Wishart Brooks (1974) 21 WIR 411 ('DPP v Brooks'). In that case, their Lordships dealt with the physical and mental elements of possession separately. At page 415, they stated the elements:
"In the ordinary use of the word 'possession' one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control. This is obviously what was intended to be prohibited in the case of dangerous drugs."
[18] The Law Lords also dealt with the mental element by approving the reasoning in R v Cyrus Livingston (1952) 6 JLR 95, where it was held that in addition to the physical possession, it must be further shown that the person had knowledge that the thing which he had was ganja (see page 414 of DPP v Brooks).
[19] Those elements of possession, although set out in the context of the possession of substances contrary to the Dangerous Drugs Act, have been held to apply to the illegal possession of firearms and ammunition. In R v Rupert Johnson (1980) 31 WIR 297 at page 303, Kerr JA, in delivering the judgment of this court referred to the principles concerning possession, as set out in R v Cyrus Livingston and DPP v Brooks and said: "A similar reason would support a liberal interpretation of possession in section 20 of the Firearms Act, a firearm being so lethal a weapon...." [20] The principles governing possession were analysed by their Lordships in the decision of the Privy Council in Bernal (Brian) and Moore (Christopher) v R (1997) 51 WIR 241 ('Bernal and Moore v R'), where, using broadly the terms mens rea for the mental element of knowledge and actus reus for the physical circumstances of the control of the item, their Lordships said, in part, at page 251:
"The actus reus required to constitute an offence under section 7C of the Dangerous Drugs Act is that the dangerous drugs should be physically in the custody or under the control of the accused. The mens rea which is required is knowledge by the accused that that which he has in his custody or under his control is the dangerous drug. Proof of this knowledge will depend on the circumstances of the case and on the evidence and any inferences which can be drawn from the evidence. The court which has to determine the issue of knowledge will have to look at all the evidence and, always remembering the burden of proof which rests on the Crown, decide what inference or inferences should be drawn. There will be great variations in the circumstances of different cases. It will be for the tribunal of fact to investigate these circumstances to decide whether or not the accused had knowledge (a) that he had the sack (or as the case may be) and its contents in his possession or control, and (b) that the contents consisted of the prohibited substance."
30. But, notwithstanding, it remains correct that the key to possession is control. Looking at something does not mean that one is in possession of it, no more than admiration of an artifact in a museum is possession. In The People (DPP) v Gallagher [2006] IECCA 110, [2007] 2 IR 246, an argument was rejected by the Court of Criminal Appeal that because Gardaí had already sought out, inspected and withdrawn from a shipping container packed with controlled drugs, that they thereby had seized possession so that those later coming to the container did not exercise control over it. Murray CJ stated:
[18] On the basis of the evidence placed before the jury, and obviously accepted by them, it must be as clear as a pikestaff that the men in the business park, including the applicant, had actual control and possession of the container and were engaged in a joint enterprise to open it and unload it so that the contents, including the drugs, could be put into the applicant's truck for delivery to Dublin. Counsel for the applicant says there was no statutory definition of possession in the Misuse of Drugs Act, 1977, as amended. There is no need for such a definition 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, lethal 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. The fact that the Gardaí were involved in a close surveillance operation with a view to arresting those involved in the transportation and unloading of the drugs does not take away from these objective facts and does not in law mean that those involved did not at the time of their arrest have possession of the drugs in question. Neither at any stage did the drugs in question lose their illicit status. Surveillance operations based on information and intelligence are part and parcel of policing techniques and it would be ludicrous to suggest that such surveillance operations, which closely monitor illegal activity with a view to arresting the culprits, could in some way exculpate such culprits from responsibility for their actions and in particular mean that they did not have possession of that which was de facto in their possession. That being the position the Court also finds that there is no basis for suggesting that the learned trial judge should have given a direction to the jury other than that which he did give on the question of possession.
31. But, as with the Gardaí in Gallagher, being a witness to the custody of someone else possessing contraband is not possession. Driving the possessor in a car while a gun is allowed to be in the vehicle or otherwise keeping temporary custody of contraband is not the same as walking in on a situation where others are in possession of illegal items. Suppose someone becomes aware that an illegal poitín stíl is in operation in a cottage in Connemara and, desirous of improving their Irish, visits the operation and watches, doing no more than listening and chatting, that action of mere presence does not constitute the possession of unlicenced alcohol; R v Coney (1882) 8 QBD 534, People (DPP) v Boyle [2010] IECCA 3, [2010] 1 IR 787. Though, while it is important to recall that mere presence at the scene of a crime, without a familial or other special duty of intervention, is not participation; lending physical aid, such as being drawn into the work of distillation, or encouraging the process, is. It was possibly because of the difficulty in drawing such distinctions, as between those in possession and the occupiers of flats or drivers of cars where others have illegal substances that section 19 of the Misuse of Drugs Act 1977 provides that anyone "who is the occupier or is in control or is concerned in the management of any land, vehicle or vessel and who knowingly permits or suffers", meaning any form of bare consent to cultivation of poppy or cannabis, preparation of such drugs for smoking, or the simple form of possession or of possession for supply, become guilty actions of what may be called a toleration offence.
32. But to possess something, there must be an animus possidendi, a concept derived from property law as meaning a manifest purpose of exercising control. People can be stolen from without knowing it and can also have contraband foisted unwittingly on them. Hence, it should be remembered that a stressed individual on public transport may be professionally jostled and relieved of a wallet or the contents of a handbag or rucksack; they do not consent to that crime and nor do they participate in it. Hence, the peril of life that it is possible for an article to be slipped into a pocket or into luggage may appropriately be born in mind. There is no intention to possess in those circumstances. An example is R v Cugullere [1961] 1 WLR 858, where the statutory offence was of having "with him in any public place any offensive weapon", a form of words denoting a closer form of possession since one does not have the contents of one's home or office with one while abroad on the streets. Having, in this context of a serious criminal offence, required as in other forms of possession, knowledge of what you had. In that instance it was bound pickaxe handles in the back of the accused's van. The error corrected on appeal was to place an onus on an accused to demonstrate lack of knowledge. Since knowing you have something of the essence of the offence, the burden is on the prosecution by direct or inferential means to establish knowing possession. Salmon J instanced a classic example at p 860:
If some innocent person has a cosh slipped into his pocket by an escaping rogue, he would not be guilty of having it with him within the meaning of the section because he would be quite innocent of any knowledge that it had been put into his pocket. In the judgment of this court, the section cannot apply in circumstances such as those. It is, therefore, extremely important in any case under this section for the judge to give a careful direction to the jury on the issue of possession. The first thing the jury have to be satisfied about - and it is always a question for the jury is whether the accused person knowingly had with him the alleged offensive weapon.
33. There is little point in rehearsing the case law from the neighbouring jurisdiction as to whether the element of knowledge in possession merely extends to the presence of an article, as in a package, or embraces a requirement that the prosecution also prove the illegal nature of the thing in question. Drugs may take many forms and may adopt an ostensibly innocent appearance and the components of bombmaking may be ordinary electrical items but it is the circumstances from which an ordinary law-abiding person would be repelled that enable a distinction to be drawn between mere presence and participation. Knowledge, in the context of drugs requires culpable awareness of the general nature of the substance. The law here is difficult. O'Donnell J has fully traversed it in his judgment in The People (DPP) v Ebbs [2011] IECCA 5, [2011] 1 IR 778. Avoiding any potential for confusion, the Misuse of Drugs Act 1977 at s 29(1) requires the prosecution to prove (1) possession by the accused of the index substance and that (2) it was a controlled drug:
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.
34. Where possession in that sense is proven, knowing possession of the object that is proven to be or is proven to contain controlled drugs, the burden shifts to the accused to demonstrate a reasonable doubt that "he did not know and had no reasonable grounds for suspecting", that what that person had possession of was a controlled drug; The People (DPP) v Smyth and Smyth [2010] IECCA 34, [2011] 1 ILRM 81, [2010] 3 IR 688, [2010] 5 JIC 1805, such a person must prove, not merely assert or adduce evidence to support, a reasonable doubt. It is notable that a similar provision does not occur in legislation prohibiting the possession and use of firearms and of explosives. There common sense must kick in. A gun looks like a gun, as does a bullet. In the context of explosives, the case law demonstrates that it is the concealed nature of the operations in manufacturing bombs and the air of deliberate participation infusing the circumstances that allow inferences of possession to be made. Even still, as to the element of culpable awareness of a substance, wilfully being blind as to what circumstances speak to suffices. The Model Penal Code provides at 2.02 (7): "When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist."
35. But, pretending to yourself to supress what you actually know is not to be conflated with recklessness; the unjustifiable taking of a serious risk. To be wilfully blind means that the person knows the fact that makes the criminal activity an offence, but rather than taking a risk that the fact exists, the person knowing that fact chooses to pretend that it does not exist. For the external element of having custody, on one's person or in one's premises or in one's vehicle, over an item that is prohibited, knowledge is required. A person must know that they have the thing in question. It is hard to conceive of culpability otherwise. The accused must be aware of an object to have that object in the accused's custody. That may happen, most obviously, through being given the object or being told that some object has been loaded in the boot of the person's car. On experiencing the passing of possession, as with a gun handed from A to B, or on being told that an object has been put into their custody, in their home or car for instance, a person's awareness constitutes the necessary element. Suspicion of something perhaps having been put in one's home in one's absence, but not being aware of that, is a different state of mind to, for instance ordering cannabis by post and being aware that it may drop through the letter box. In the latter example, there is possession when the cannabis arrives, even when the owner of the home is at work, since the custody has been knowingly pre-arranged. There, there is knowledge. Where, on the other hand, a person returns home and notices a smell or a sound that arouses suspicions that something may have been put in the house without his or her say so, is not an arrangement of knowingly taking custody.
Inferences
36. Through a traverse of the decisions, the circumstances in which an inference of possession becomes possible through the accused's presence at a scene becomes more evident. An inference, to be clear, is a deduction that because one fact, or series of facts, has been proven, another fact may validly also be found to exist or have been operating at the time of the offence. In terms of the physical world, a person exiting a building after a long meeting who finds the weather dry but the streets in every direction drenched, may deduce that it has been raining. From the point of view of the mental element of a crime, deliberate action in retrieving a gun and then pointing it at a victim and shooting, enables an inference that the actor intended the natural and probable consequence of death or serious injury. Where the burden, as in criminal cases, is proof beyond reasonable doubt, inferences, like facts being found, are only made where the circumstances remove any reasonable doubt. Reading decisions on when possession may be deduced, it becomes clear that inferences of possession from circumstances are fact-dependent. Since possession is a state of affairs, a guideline accepted by Kearns J in The People (DPP) v Tanner [2006] IECCA 151 establishes a shrewd basis for assessing whether a particular set of facts may be enough for a jury to find that the accused was involved in an enterprise of culpable control with others:
As noted by Charleton and McDermott [Criminal Law, 1st edition, Dublin 1999] (at para. 5.16):-
"An inference of the external and mental elements of possession thus becomes an operation of degree. The more obviously the individual facts imply possession the more readily it will be inferred: the looser the association between the illicit object and the accused, the more tenuous becomes the prosecution case that the accused was in possession."
In The People (DPP) v Eamon Kelly Court of Criminal Appeal 4 March 1996, the accused and another person parked a vehicle in the car park of a Dublin hotel. The second person went into the hotel and obtained possession of a bag of cocaine which was wrapped like a packet. On returning to the car he handed the bag to Kelly in the driver's seat of the car. The evidence established that Kelly opened the bag and looked into it, then placed it between the seats and concealed it by removing the car jack from in front of an aperture and putting the packet therein. He then drove out of the car park, but was apprehended by the gardaí. He claimed not to know what the contents of the bag were and denied ever looking into the bag. However, the Court of Criminal Appeal was satisfied that the jury had been right to convict the accused.
37. Criminal actions may be committed by an individual, or an individual may commission another to commit a crime for them, as in the paradigm of contract killing, or two or more people may arrange a crime, as in any other lawful enterprise, by dividing tasks between them to the purpose of the crime being brought to fulfilment. There clearly can be an enterprise of possession not just where A sends B out onto the street with A's drugs, or the gang's drugs, to sell on behalf of A or the gang, as in s 1(2) of the 1977 Misuse of Drugs Act, but frequently the task of possession, as in A getting drugs for B or C secreting drugs for A and B, is designated so that the action of possession for A through B and through C is the possession of all of them. The cases where the courts held that there was insufficient evidence to establish a sufficient link to an enterprise of possession, either by assistance in that regard or encouragement, indicate that a logical inference of culpability is demanded rather than any unanalytical equivalence of suspicion with guilt. Hence, the celebrated case of R v Whelan [1972] NI 153 where in a house in Belfast, occupied by 14 people, in a bedroom for three, a revolver and rounds of ammunition were found on top of a chest of drawers and covered by men's clothing. They denied knowledge and asserted that they were being framed. While an inference that one or more possessed the weapons, a finding of joint enterprise by all three would ignore the rational possibility that one or more were outside its scope.
38. What matters is what the facts enabled to be inferred; here neither individual guilt could be pointed to and nor could joint possession by all three. Lowry LCJ concluded that there was "no evidence on which the jury, properly directed, could find the verdicts of guilty, which they did." Similarly, in R v Searle [1971] Crim LR 592, people sharing a camper van on a holiday were wrongly convicted of joint possession of various drugs. The prosecution case, put as a jury direction, was that given proximity to the contraband "each of them must have become aware that there were drugs in the van, and was consenting to the possession of those drugs". That was reversed: knowledge could not be equated with possession and being aware that a confederate had an illegal article did not of itself prove joint possession. The crime of possession requires knowledge and custody but knowledge is not of itself possession without some action of joining in the custodianship of the illegal article. While not citing Minister for Posts and Telegraphs v Campbell [1966] IR 69, the logic is to the same effect: mere evidence that an article is in a shared space does not, without more, establish a joint enterprise by people living there to possess it. Similarly, in R v Bland (1987) 151 JP 857, a girl living with her boyfriend could not be convicted of possession merely on the basis of his open use of cannabis since there was no evidence of assistance in his enterprise of possession and of dealing. To the same effect see R v Colvin and Gladue [1943] 1 DLR 20. Similarly, as in The People (DPP) v O'Shea [1983] ILRM 592, accepting an evening of piece-work in the normally innocent task of unloading a lorry does not establish that the accused joined in the scheme of possessing the drugs which, as it happened, were, as it turned out, part of the packaging handled by the accused.
39. There are also the cases on the opposite polarity, where a jury was properly instructed that joining in the enterprise of possession was the central proof and that this required that the accused be part of the scheme of possession. The facts from which that may properly be inferred can be seen from the cases where possession was accepted. In The People (DPP) v Foley [1995] 1 IR 267, the accused was found in a flat with a sawn-off shotgun beside him on the bed where he was sitting, while a revolver was visible on the heating unit close-by and a rifle butt protruded visibly out of a bag. A co-accused was acquitted on the basis of an account of innocently visiting but the Court of Criminal Appeal held that as regards this accused, and another who did not offer any explanation that might potentially demonstrate innocent presence, that joint possession was lawfully established on the basis of proximity; the circumstances of open and obvious presence of firearms sufficed to enable an inference of an enterprise of jointly possessing the weapons. In The People (DPP) v O'Neill [1997] 1 IR 365, surveillance established comings and goings to a rural shed, with particular accused identified as opening the door as vehicles arrived. The Gardaí, on attempting entry, experienced that the doorway was bolted while inside it was discovered that the premises contained stolen vans, with balaclavas and improvised explosives on the far side of a dividing wall over which the accused had climbed when the Gardaí came in. This was held sufficient evidence of a common purpose that involved both the vehicles and the explosives. In The People (DPP) v Byrne and Others [1998] 2 IR 417, Gardaí had surveilled a beach in Galway. This included immersing themselves in the sea through the night. Materials arrived from a yacht appearing on the ocean in the middle of the night and these were buried by the accused men in sand dunes and stashed in a camper van parked above the high-watermark. When the van moved, the Gardaí came over the dunes and out of the sea, arresting the men. Keane J commented that there "was clearly evidence...on which the jury could be satisfied beyond a reasonable doubt that each of the defendants was in possession of the bales in the sense of having them physically in their possession or under their control on the beach." Handling the contraband in circumstances of concealment can, as in The People (DPP) v Gallagher lead to an inference of control and a culpable state of mind.
40. All of these cases affirm the principle stated in The People (DPP) v Boyle that one cannot participate in a crime by mere happenstance: there must be aid to the enterprise of possession or encouragement in that regard. Having weapons in the car one is driving, in the glove compartment and in the boot - a stun gun, activated when the Gardaí stopped the car, a baton and a sword - on the basis that "Bray is a dangerous place", sufficed to establish control in The People (DPP) v Ebbs.
41. Some facts exceed even the colour of Byrne and Others. So in The People (DPP) v Wharrie [2013] IECCA 20, the enterprise involved landing drugs by catamaran following a deeply perilous voyage across the Atlantic from somewhere in South America. MacMenamin J in his judgment affirming the conviction listed factors such as abandoning a comrade in the storm-tossed bay when the boat foundered, watching the proceedings from a headland and articles connected to the enterprise, including false passports, found on the accused or otherwise in his possession. It was a matter of ordinary sense that he was part of the enterprise of possession and importation which ended disastrously, though not tragically, with bales of drugs bobbing up and down offshore in the wild of an Atlantic storm swell.
42. Reading the case law from various jurisdictions, the similarity of the principles of the common law and their application becomes apparent. In Sandhu, following a review of Australian authorities, Hall J offered a guide that in its good sense commends itself as an appropriate review of the authorities cited by there and in this analysis:
These cases establish a number of basic principles applicable to constructive possession:
1. This is a very fact specific area.
2. Constructive possession under s. 4(3) of the Criminal Code can be and very often is established by circumstantial evidence.
3. The inferences to be drawn from the circumstantial evidence must be reasonable.
4. An inference drawn which establishes an essential element of an offence must be the only reasonable inference that can be drawn.
5. The trier of fact must look at the totality of the evidence.
6. Constructive possession requires knowledge and control.
7. Control in the context of constructive possession means consent with the power to affect the location of the item.
8. Occupancy can be evidence of possession.
Summary
43. Put shortly, a joint enterprise to possess drugs may be established by circumstances whereby the facts, shrewdly assessed, point, on a common sense basis, to the involvement of the accused in controlling contraband by his or her own willing support, either by practical aid, or active encouragement, to that enterprise; but such circumstances must be inconsistent with any rational explanation of innocence; and that is so whether any such explanation has been offered or not. In drawing an inference of involvement in a joint enterprise of possession, a jury may be assisted to a degree by a failure of an accused to give an explanation for his or her presence in a place where the contraband is found, upon the proper invocation of the relevant section of the Criminal Justice Act 1984. But that inference may not be the entire reason why the accused is found guilty and nor may it be the most weighty factor in deciding that the accused is guilty. Where a rational doubt exists, such as that the accused might reasonably have no involvement in the enterprise of possession of drugs, by reason of simply visiting for social reasons, for example, the jury must acquit.
Statutory inferences
44. Sections 18 and 19 of the Criminal Justice Act 1984 constitute part of a series of exceptions to the general rule that, in the face of questions, an accused may remain silent without any adverse conclusion of involvement in the offence in respect of which he or she is questioned. The relevant legislative pattern is one of a kind with a number of other provisions. Section 7 of the Criminal Justice (Drug Trafficking) Act 1996, applying to drug trafficking offences required the accused be "told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of" failing to mention, on being questioned by Gardaí or Customs is. That failure to mention being "any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time he or she could reasonably have been expected to mention when so questioned, charged or informed" from which such failure may result in the tribunal of fact drawing "such inferences from the failure as appear proper", and such failure "may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure is material", however, "a person shall not be convicted of an offence solely on an inference drawn from such failure." Statements made in the presence of the accused, an ordinary exception to the rule against hearsay, are not affected and nor is the law of evidence otherwise altered. Similarly, s 5 of the Offences Against the State (Amendment) Act 1998 applies the same formula to failure to mention a fact relied on in defence of a range of offences founded on those scheduled in the legislation or arising "from the same set of facts". Section 72A of the Criminal Justice Act 2006 concerns a failure to mention a fact when posed "any question material to the investigation of the offence", which means "a question requesting that the defendant give a full account of his or her movements, actions, activities or associations during any specified period relevant to the offence being investigated". The range of offences covered include conspiracy to murder and forms of organised crime and the direction thereof. In commenting on sections 18 and 19, Murray J in The People (DPP) v JB and SM [2025] IESC 10 has usefully stated:
23. In summary, in respect of both sections, a number of things are clear. First, that a failure or refusal to answer questions is not in itself evidence nor is it in itself corroboration of evidence. Second, however, inferences may be drawn from that failure or refusal. Third, those inferences may be treated as, or be treated as capable of, amounting to corroboration of evidence. Fourth, to be treated as, or treated as capable of amounting to, corroboration, the failure or refusal must be 'material' to that evidence. Fifth, each provision (ss. 18(2) and 19(2)) stipulates that a person 'shall not be convicted of an offence solely or mainly on an inference' drawn from a failure or refusal to account under these provisions.
24. The third and fourth of these points fall to be understood in a context in which, according to well established authority, 'corroboration' refers to 'independent evidence of material circumstances tending to implicate the accused in the commission of the crime with which he is charged' (The People (Attorney General) v. Williams [1940] IR 195, 200 per Sullivan C. J. citing O'Byrne J. in Levison's Case [1932] IR 158, 165). All fall to be considered in a context in which it is not the failure to answer questions which itself amounts to corroboration or indeed is itself evidence. Rather, the failure to answer questions material to the offence permits the court (but does not require it) to draw inferences from such failure as appear proper (The People (DPP) v. Donnelly [2012] IECCA 78).
25. There are a range of additional conditions imposed on the operation of these provisions: the accused must be told in ordinary language what the effect of the failure or refusal to account will be and must be afforded a reasonable opportunity to consult a solicitor before the refusal or failure occurs (ss. 18(3) and 19(3)). These conditions must be strictly construed, and the statutory conditions provided must be enforced (The People (DPP) v. KM [2018] IESC 21). In this case, no questions were asked by counsel for S.M. and J.B. of the Gardaí who gave evidence of making the requests, and no issue was raised at the application for a direction around the application of the provisions
45. Hence, the pattern is of a simple warning, in ordinary language, words which do not have to follow any legal formula, where the accused is being questioned, applicable to particular offences, and where the accused does not mention a fact or account relevant to the circumstances. Where the difficulty arises here in respect of the case against DT is that the purpose of the prosecution is to prove that the accused committed offences of possession, yet some of a series of interviews were directed towards questions which amounted to: we believe you were in possession of drugs in the flat on the day, so account for your possession of those drugs. That cannot be right. Counsel for the prosecution appearing on this appeal rightly conceded his discomfort at this circularity whereby to prove a fact a fact is inferred and failure to accept the very situation which the prosecution is obliged under the scheme in the 1977 Act to prove is treated as evidence. That caution is correct. You cannot seek to prove possession by putting to an accused that he or she was in possession of contraband and then use a failure to account for possession as evidence of possession. The position is otherwise where the questioning under s 18 concerns drugs found on a person or in or on their clothing or footwear. In that situation the starting point is a fact to be proved in direct evidence - meaning proof that the drugs were in the pocket, the rucksack, etc - rather than by inference. If the jury accepts the direct evidence of possession an appropriate inference may be drawn from a failure or refusal to account for it.
46. There would be nothing wrong, however, in seeking an explanation as to why the accused was in the flat in circumstances where drugs were in every room. Such questions would relate, as the law requires, to the offences involved in the proceedings ultimately brought against the accused; The People (DPP) v Wilson [2019] 2 IR 158. That accounts for another series of questions put during the series of interviews of DT and there is nothing to stop that failure to answer for his presence there as giving rise to an inference of involvement in the various offences charged. Any such inference is for the jury; the task of the judge is to see that the evidence is put before them in accordance with the statutory scheme. The pattern represented by sections 18 and 19 have found not to infringe the right to silence, as such, and the sections, directed as they are to the discharge by Gardaí of their duty to investigate crime should be applied in the manner which their language requires.
Section 4E applications
47. In JB and SM it was argued that the inferences open under sections 19 or 18 should not be taken into account when a judge is deciding whether to discharge an accused from some or all of the charges against him or her. That is not correct. All of the evidence must be considered including evidence amounting to an adverse inference or as supporting other evidence. Corroboration, in this context, is not of a witness in a suspect category, such as an accomplice, or evidence independent of a confession of guilt by the accused, rather it requires that there be other evidence pointing to the guilt of the accused which may then be bolstered by the inference resulting from failure to mention a fact relevant to a defence mounted at trial, or in answer to a direct question as to presence in a place related to the commission of a crime. Properly considered, that is evidence which points towards the involvement of the accused in the crime; but corroboration is never required to be capable of itself in proving such guilt. It adds to evidence but is never required to be, and here cannot be, the only evidence or the main evidence in the case.
48. Section 4E of the Criminal Procedure Act 1967, as substituted by s 14 of the Criminal Procedure Act 2021, simply provides that "at any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused." This embraces an application, as here, after the book of evidence is sent from the District Court to the court of trial and a trial judge is appointed to hear the application, an application at the close of the prosecution case that there is insufficient evidence to enable the jury to safely convict and preserves, as well, the entitlement of an accused to apply during the hearing of a case to dismiss a charge. Normally, in the interests of good order, that is to be made when the prosecution have completed their evidence. Prior to the changes wrought to the original 1967 Act by subsequent legislation, it was part of the rights of the accused that he or she only be put on trial if a judge of the District Court decided that there was enough evidence to sustain the charges. Otherwise, the accused would not be returned for trial or returned only on some charge or charges. That procedural safeguard arose in the history of the common law whereby it was considered that a filtering mechanism of judicial scrutiny should remove unstateable cases even before the accused was formally indicted. The grand jury system was the mechanism into the late 19th century, slowly removed piece-by-piece, and still prevails in the United States of America whereby a jury decide whether the accused should undergo or be relieved of the stress and uncertainty of the trial process. With the gradual abolition of grand juries, the deposition of witnesses before the District Court and the requirement not to send untenable cases forward for trial became the procedure enshrined in the original version of the 1967 Act. With the realisation that this procedure added little, the entitlement to apply before trial for a discharge has been put as a function of the court of trial.
49. Since, under the substituted subsection, the application may be made before or during the trial. The clear intention is that the same test as for an application to dismiss charges at the close of the prosecution case applies. While notice of that application is good practice, it is expected as a real possibility when the prosecution rests, but otherwise it remains an unfettered entitlement of the accused during the entire trial and does not require notice; Phipps v Hogan [2003] 3 IR 321. The only question under s 4E is whether there is a sufficient case to enable a jury to safely convict; Cruise v O'Donnell [2007] IESC 67, [2008] 3 IR 230. There, Hardiman J, having traversed the history of the procedure, explained the application:
20. The Act of 1999 abolished preliminary examination in the District Court. Under the former system it was possible for a defendant to have the charges against him dismissed in the District Court if that Court was not satisfied that there was a sufficient case to put him on trial. Although that procedure has been abolished, the Act of 1999 conferred certain compensating entitlements on defendants. These, however, were required to be exercised in the "trial court" rather than in the District Court. The right to apply for the dismissal of the charges against one, pursuant to s.4E, is one such entitlement. These are important entitlements. Quite clearly (to speak only of the right to apply to have a charge dismissed) if there is a single point which may avail the defendant to the extent of fatally undermining the charges against him, it is a great advantage to have this determined before the trial itself. Disposal in this way represents a major saving of time and expense to both sides, avoids inconvenience to witnesses and to the often forgotten jury persons, brings a rapid end to the defendant's anxieties (which in this case must be considerable since one of the charges against him carries a mandatory minimum sentence of ten years imprisonment) and brings about a resolution of the action between the prosecutor and the defendant at the earliest possible time, freeing up court time for other cases.
50. The test under s 4E is whether on any charge there is a sufficient case to enable the jury to convict. That equates with a trial judge stopping a case at close of the prosecution evidence and the sameness of the test is mandated not only by the logic of the illogicality of differing tests but by the wording of the section enabling such an application "at any time" after being sent forward to the trial court. The case often cited is The People (DPP) v Leacy [2002] 7 JIC 0301 (Court of Criminal Appeal, unreported, 3 July 2002), where Geoghegan J approved the 1991 Blackstone's Criminal Practice summary of the English case law:
(a) If there is no evidence to prove an essential element of the offence a submission must obviously succeed.
(b) If there is some evidence which - taken at face value - establishes each essential element, then the case should normally be left to the jury. The judge does, however, have a residual duty to consider whether the evidence is inherently weak or tenuous. If it is so weak that no reasonable jury properly directed could convict on it, then a submission should be upheld. Weakness may arise from the sheer improbability of what the witness is saying, from internal inconsistencies in the evidence or from its being of a type which the accumulated experience of the courts has shown to be of doubtful value (especially in identification evidence cases, ...)
(c) The question of whether a witness is lying is nearly always one for the jury, but there may be exceptional cases (such as Shippey) where the inconsistencies (whether in the witness's evidence viewed by itself or between him and other prosecution witnesses) are so great that any reasonable tribunal would be forced to the conclusion that the witnesses is untruthful. In such a case (and in the absence of other evidence capable of founding a case) the judge shall withdraw the case from the jury.
51. But, a difference must be remembered. Even though the approach of a trial judge is predicated on the same test as that for excusing an accused from a charge which on the papers has no tenable substance in the proposed evidence, there are two important differences. Firstly, it was never the case at trial under the original form of the 1967 Act that any argument could be mounted by the prosecution that since the District Judge had not dismissed certain charges, the trial judge did not exercise judicial assessment having heard the actual testimony; the District Judge being limited to proposed witness statements and any written exhibits. A different view can be taken. Which is the second point: what emerges at trial as to, or as to the absence of, strength, cohesion, relevance and vitality enables a qualitatively different judicial analysis by the judge considering an application to dismiss all or certain charges at the close of the prosecution case. This is done, obviously, in the absence of the jury, but bearing in mind that the ultimate responsibility is theirs as to whether the evidence enables a verdict one way or the other. But that must be a safe verdict. Since, Article 38.1 and 38.5 places the trial of serious offences in the hands of a jury as trier of fact, it is not sufficient for a trial judge merely to distrust a witness; The People (DPP) v McHugh [2024] IECA 176 [8]. That is a jury function. Rather, the situation must go further. In The People (DPP) v Buckley, [2007] IEHC 150, [2007] 3 IR 745 Charleton J considered the following to be the proper approach:
14. In considering, at the close of the prosecution case, whether sufficient evidence has been adduced to allow the case to proceed to the defence case, or to submissions, a trial judge should be concerned to see whether the proofs necessary to make out the charge have been adduced in evidence. At that stage, the trial judge is not concerned with issues of credibility or with sufficiency of proof but with the technical nature of the elements of the offence and whether these have been reflected in evidence by proof. There can be exceptional cases where the nature of a necessary proof is found to be so tenuous that a trial judge would be compelled to make a conclusion that any consequent conviction would be unsafe. In those very rare cases the issue as to conviction might be withdrawn from the jury, or from the judge acting as the tribunal of fact.
52. Obviously, the difference as between applying to a judge on being sent forward for trial and applying when the prosecution case has been heard is that then the judge will have heard live evidence. It is only when the testimony of a witness meets the high threshold in the third part of the test that a judge would be justified in withdrawing any charge wholly dependent on that evidence from a jury. The constitutional mandate for jury trial should prevail and may only be overcome by a finding of law that no reasonable jury could act on particular testimony. Part of the analysis is the inference, if any, that a jury may properly draw from silence or from a failure to mention a fact when questioned. As Murray J explained in JB and SM, this is part of the matrix of fact:
[13] It follows that it is not the case that the inferences may only be considered by a judge at an application for a direction if the rest of the evidence would, in and of itself, meet the threshold required to surmount that application; the reference in the sections to the court's consideration of whether there is a case to answer only makes sense if taking account of the inferences adds something to the decision on such an application. In any event, when considering an application for a direction the court must, as I have said, address its attention to whether there is evidence on which a properly instructed jury may reasonably convict. This requires that all of the evidence that might be considered by the jury be factored into the calculation of whether the direction ought to be given. By failing to address the inferences that might have been drawn from the refusal of the appellants to provide any account of (in the case of J.B.) the residue on the glove in his possession or (in the case of both appellants) their presence in Vehicle 2 shortly after the attack, this did not occur. It should be restated that the indisputable consequence of ss. 18 and 19 is that these provisions do more than merely affect the weight of other evidence: inferences, where the Court has decided that it is proper that they be drawn, can be treated as or as capable of amounting to corroborative evidence and it is critical to the function of and reason for these provisions that they 'could lead to an accused being convicted of a serious offence in circumstances where he or she might otherwise have been acquitted' (Rock v. Ireland at p. 501, per Hamilton C.J.)
Cultivation
53. The accused is also charged with cultivation. There may be different nuances as between a common design to possess and one to assist or encourage cultivation of the apparent raw material. It may, perhaps, logically be said that by engaging in the work of the drug factory upstairs, an inference might be drawn of encouragement to cultivate cannabis plants. But, it can also be argued that such plants might be sourced from anywhere and may not necessarily be considered as part of the web of tasks that makes up the manufacture of the gummy bears. Cultivate is an ordinary word in the English language. Generally, in the context of crops it means to assist in the growth of flora by planting, watering, fertilising, weeding, protecting and general tending in aid of a final and usable harvest. Because a person was found in a field of cabbages that, without more, he or she was cultivating those wholesome vegetables. A connection to this cultivation as part of the overall scheme must be demonstrated by the prosecution. There can be no doubt that the accused was in a place where cannabis plants were being cultivated but is there evidence on which a properly instructed jury might convict?
54. Some guidance comes from The People (DPP) v Choung Vu [2015] IECA 257, which was another fact-specific case. There, the accused arrived as a passenger in a car at a property which was being searched by Gardaí for cannabis cultivation. Upon search, it was discovered that the property, rented by one of the co-accused in this case, was being used as a cannabis grow area. The car which the accused was in was searched. Gardaí found equipment typically used for cannabis cultivation, such as lighting units, plant nutrients, and tools. The accused was convicted by a jury of three counts: Count 1 possession of cannabis for sale/supply under s 15 of the Misuse of Drugs Act 1977; possession of cannabis under s 3; cultivation of cannabis plants under s 17. But, the point was that the accused had items related to cultivation in his car, thus in his possession, linking him to the events. The appeal was partially allowed, with counts 1 and 2 being quashed, and count 3 pertaining to cultivation being upheld, as explained by Edwards J for the following reasons:
50. After careful consideration of the evidence available to the jury, this Court has concluded that there was not sufficient evidence to provide a basis for a jury, properly directed, to infer beyond a reasonable doubt the existence of a common design, in which the appellant could be regarded as a primary participant, to possess in the legal sense the cannabis found in the house at Ballinlough. In the circumstances the Court considers that Count No 1 and Count No 2 respectively should have been withdrawn from the jury, and the Court will allow the appeal in respect of those counts.
51. However, there was certainly evidence on foot of which a common design to cultivate cannabis in the house at Ballinlough could be inferred, and in which the appellant could be further inferred as having been involved at the level of secondary participation at the very least i.e., acquiring and delivering supplies for use in connection with the growing of cannabis plants within the grow house. Although counsel for the appellant again referenced the cases of The People (Director of Public Prosecutions) v Jordan and Deegan, and The People (Director of Public Prosecutions) v Harrington, and also drew the Court's attention to The People (Director of Public Prosecutions) v Hourigan & O'Donovan (unreported, Court of Criminal Appeal, 19 th of March 2004) the Court is satisfied that this was not a case of mere presence of the scene of a crime. It was presence in association with being in close proximity (i.e.,within the same vehicle) with goods and paraphanalia used in cultivation, presence at Ballinlough in association with others clearly connected to the house which had been found to have been converted to a grow house, and other suspicious circumstances. The prosecution case relied upon the contents of the house at Ballinlough; the location of the house; the arrival of the appellant at the house in a vehicle loaded with equipment commonly associated with the cultivation of cannabis; the fact that appellant had admitted seeing the suitcase on the back seat and therefore could not but have been aware of the large containers of plant food adjacent thereto; the presence of the appellant in the company of his co-accused at B&Q in Naas at approximately 14:30 that afternoon, carrying a drill and expandable foam; the fact that the drill was located on the back seat of the car at the time of search; the lies told by the appellant in interview regarding his movements on the day he was arrested, namely, and in particular, that he travelled straight to Ballinlough and had not gone anywhere else, and the evasiveness and improbability of the account given by the appellant.
52. In the circumstances the Court is satisfied that Count No 3, being the cultivation charge, was properly allowed to go to the jury and the Court will dismiss the appeal in respect of Count No 3.
55. In contrast to Choung Vu, the accused was not outside the premises but could be argued, whether validly or not cannot now be assessed, but inside a place where cultivation was apparently proximate to any common design that the prosecution may be able to establish as to possession. Again, in contrast, there is some evidence, whether tenable or not will ultimately be for later assessment, of the cultivation being part of the overall operation.
Sufficiency of evidence
56. It is not for this Court, no more than in McHugh, to pronounce on the soundness of evidence or to speculate as to the weight to be attached to particular factors. The only issue is whether a jury, presumed to be reasonable and objective people and fulfilling their oath to try the case only in accordance with the evidence presented in court, acting shrewdly and with common sense, may convict on all or some of the charges given this matrix of fact. This analysis could never mean that a jury should convict or, even worse, might be encouraged to convict. The decision is theirs, untrammelled by any legal analysis of potential fact. The following factors establish the rational prospect, which may or may not come to pass since the jury is the tribunal of fact, that the accused could be convicted on the charges related to the kitchen-living room area:
· The presence of the accused in the room
· The accoutrements of production: the pot, the jelly, the moulds, the apparently finished products claimed to contain cannabis
· The dried cannabis leaf in transparent packets
· His personal effects, phone and passport in the room
· The absence of an account as to why he was there, the statutory formula having been deployed, apparently
57. As regards the grow locations and the cultivation areas, the above factors also apply, but in addition, a potential connection with a common design to possess the growing cannabis plants and to cultivate same, include:
· The secateurs in the kitchen-living room area
· The argued-for continuity in the production line from live to dried plant to infusion in jelly
· The use of heaters, lighting, insulation etcetera in the grow locations to speed growth
· The absence of any explanation as to why he was in the flat, the statutory formula having been apparently invoked.
58. This does not mean that there is enough evidence on either of the grouping of charges around the kitchen-living room area, or in respect of the grow rooms, that a jury will be convinced as a matter of fact, beyond reasonable doubt, that the accused was part of a common design to possess in respect of three distinct areas and to cultivate the two rooms of plants in addition; but the alleged evidence partly of circumstances and partly by reason of a lack of an explanation as to why he was there, enables a jury to consider all the charges.
Result
59. In the result, the judgment and order of the Court of Appeal is affirmed.