Court of Appeal dismisses appeal and refuses amendment to raise new ground not raised at trial.

THE COURT OF APPEAL Neutral Citation Number: [2026] IECA 14 Court of Appeal Record No. 10/2024 McCarthy J Burns J O’Moore J

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT -AND-

MARTIN MURRAY APPELLANT

JUDGMENT of the Court delivered on the 26th day of January 2026 by Mr Justice McCarthy

1. This is an appeal against conviction. On the 4th of May 2023, the appellant was convicted of four offences following a trial in Tullamore Circuit Court, namely: one count of importation of a controlled drug contrary to section 15B of the Misuse of Drugs Act 1977 as inserted by section 82 of the Criminal Justice Act 2006 and contrary to section 27(3A) of the Misuse of Drugs Act 1977 as substituted by section 33 of the Criminal Justice Act 2007 (count no. 1);

one count of unlawful possession of a controlled drug for the purpose of sale or supply, contrary to section 15A of the Misuse of Drugs Act 1977 as inserted by section 4 of the Criminal Justice Act 1999 and contrary to section 27(3A) of the Misuse of Drugs Act 1977 as substituted by section 33 of the Criminal Justice Act 2007 (count no. 2); one count of unlawful possession of a controlled drug for the purpose of sale or supply, contrary to section 15 of the Misuse of Drugs Act 1977 and contrary to section 27(3) of the Misuse of Drugs Act 1977 as substituted by section 6 of the Misuse of Drugs Act 1984 (count no. 3);

and one count of unlawful possession of a controlled drug, contrary to sections 3 and 27 of the Misuse of Drugs Act 1977 as amended by section 6 of the Misuse of Drugs Act 1984 (count no. 4). An application has been made to amend the notice of appeal. In addressing the amendment, we must, and do, in truth consider the merits of the proposed new ground.

2. At trial, the jury heard that An Garda Síochána came to possess information which suggested that the appellant may have been importing drugs into the country and that he would arrive into Belfast Port via Cairnryan at 9:45 p.m. on the 29th of June 2017. It was expected that he would then travel to his home address in Derrycallaghan, Moneygall, County Tipperary in an articulated lorry, registration EY05FNX. On foot of this information, gardaí from the Garda National Drugs & Organised Crime Bureau placed surveillance teams on all major routes from Belfast to that address.

3. For the purpose of grounding the motion to amend, the then solicitor for the appellant, Mr Gillespie, swore an affidavit on the 20th of February 2025 and deposed to the fact that on the opening day of the trial, the 25th of April 2023, he had a “short informal conversation”

with counsel for the prosecution on the morning of the trial. He continues in his affidavit:

“I indicated to Mr White [counsel for the prosecution] that no issue would be taken with regard to the stop and search of Mr Murray’s lorry, the searches of his property, the validity of search warrants and that the case would be defended purely on the issue of the Defendant’s lack of knowledge of drugs on his load. Mr White said it would have come out in evidence that the lorry driven by Mr Murray was under surveillance on the nights of his arrest. I assumed that the relevant Gardai would only say this in very general terms and in a neutral way. I did not give any consent to specific evidence being led that the Appellant Martin Murray himself was the target of the Garda operation”.

In his affidavit of the 20th of May 2025, he goes somewhat further and rejects the proposition that he expressly agreed to counsel leading such evidence. Replying affidavits were sworn by one Sandra Mahon (state solicitor for County Offaly) and Kevin White (prosecuting counsel for said County). Some days prior to the commencement of the trial, senior and junior counsel for the appellant withdrew from the case. The appellant opted not to instruct another counsel and Mr Gillespie, who had been acting for the appellant from the outset, was to represent him at trial.

4. As will appear from our summary of the evidence, a significant part of the prosecution case was to the effect that a vehicle driven by the appellant was under garda surveillance for some time. A dispute arose on the affidavits as to the extent to which reference would be made to what we might call background evidence to the surveillance; namely, the evidence referred to above. In effect the appellant’s position, based on Mr Gillespie’s affidavit, was that it was agreed that what we might shortly describe as very limited evidence about that background would be adduced. On the other hand, the prosecution, primarily on the basis of Mr White’s affidavit, contended that the agreement extended to adducing evidence of the background of a more extensive kind. That dispute was not resolved before us. We accordingly proceed on the basis that there was an agreement to refer to such background, to an extent, as a minimum. It is said that this evidence was hearsay (which, having regard to the basis upon which it was introduced, it was not) and prejudicial to the appellant. It is the extent to which evidence along these lines was adduced that has given rise to the attempt by the appellant to add a ground of appeal based upon inadmissibility.

5. The appellant’s lorry was sighted travelling through the M7 toll plaza at Portlaoise at 3:21 a.m. on the 30th of June 2017. One Detective Garda Tighe travelled behind the vehicle and observed it perform a number of manoeuvres. In the first instance, approximately 2–3 kilometres after the toll plaza, the lorry was observed decreasing its speed from 90–100 km/h to 60–70 km/h and maintaining this slower speed for approximately 2 kilometres before increasing its speed to approximately 100 km/h again. In the second instance, the lorry was observed exiting the motorway at Junction 21, crossing a bridge which ran across the motorway, fully circling a roundabout and crossing the same bridge in the opposite direction before rejoining the motorway in the same direction of travel. Detective Garda Tighe’s evidence was that it was his belief that the appellant was conscious of the fact that his vehicle was being followed at that time.

6. At approximately 3:40 a.m. the appellant’s lorry was observed exiting the M7 motorway and was thereafter followed by a separate garda surveillance team comprised of one Detective Inspector Keith Halley (then Detective Sergeant) and one Detective Sergeant Damien O’Farrell. Based on the manoeuvres which had been observed by Detective Garda Tighe, a decision was made to stop the lorry on the left-hand side of the Dunkerrin road.

Detective Sergeant O’Farrell approached the lorry and invoked section 23 of the Misuse of Drugs Act 1977. The appellant then complied with a request to drive his lorry to Nenagh Garda Station, accompanied by the gardaí.

7. A cursory search of the lorry and its trailer took place at Nenagh Garda Station. Gardaí observed industrial mechanical equipment and tractor tyres in the back of the lorry. Based on the nature of the equipment, gardaí decided to transport the lorry to Dublin Port to perform a more thorough search. The appellant was searched at Nenagh Garda Station, and gardaí recovered items including two mobile phones, receipts for fuel purchases, €1,570 in cash and other items. After this search, the gardaí obtained a warrant to search the appellant’s property and lands; however, nothing of evidential value was found during the subsequent search. At Dublin Port, the lorry and its trailer were examined using an X- ray scanner and a sniffer dog. The search eventually focused on four steel rollers within the trailer. The rollers might be described as being sealed but ultimately after they were opened, a telescopic camera was threaded into the rollers. In total, 73 packages of vacuumpacked cannabis with a market value of €730,000 were located within the four steel rollers.

The appellant was arrested and detained for the investigation of the offence on the 5th of July 2017 and interviewed thereafter on a number of occasions on the 5th and 6th of July.

8. During the course of the first interview, the appellant maintained that the consignment related to his business activities as a haulier and dealer in mechanical equipment. The appellant stated that he was present when the lorry was loaded with its consignment in the Netherlands and that he had personally secured the load but denied any knowledge of the drugs. When asked about details, including who had requested him to collect the consignment and who it was being delivered to, the appellant continually asserted to gardaí that all details were on a ‘CMR’ document (shorthand for a contract for the international carriage of goods by road pursuant to the Convention on the Carriage of Goods by Road)

which, he claimed, was in the cab of the lorry.

9. Detective Garda Conor O’Sullivan examined the two mobile phones which were seized from the appellant’s person on the night of 30th of June 2017. One Samsung smart phone had a third-party encryption which was placed onto the phone: preventing members of the gardaí from accessing it. When asked at interview about the encrypted phone, the appellant accepted ownership and asserted that it was used for the sale of farm machinery. The appellant maintained that he could not remember the phone’s codes or passwords.

Detective Garda Conor O’Sullivan gave evidence that the type of encryption was not commercially available and stated the following:

Q. “And can I ask you then in your experience, what is a Knox encrypted phone generally associated with?”

A. “Criminality.”

Whatever else, it seems difficult to see how this phone would have been needed for the purpose of selling farm machinery, to say nothing of the fact that it was one of two. These facts are, however, merely two of a number, which taken together, make out a strong case of possession of the controlled drug in question.

10. On the 5th of July 2017, following the appellant’s repeated references to a particular CMR, one Detective Garda John Altendorf was despatched from Nenagh Garda Station to conduct another search of the lorry’s cab (the cab had previously been searched by two members of the gardaí during the extensive search of the lorry and its consignment at Dublin Port on the 30th of June 2017). Detective Garda Altendorf located a number of blank CMR documents but not a completed CMR with details of the relevant consignment. On 24th of April 2023, a search of the lorry, facilitated by a customs official, without supervision by, or effective notice to, An Garda Síochána, took place by one Mr John Shanahan, on the instructions of the appellant. He said in evidence that he found Mr Murray’s passport in the overhead compartment of the cab of the vehicle and left it there. The passport had not been found during any of the previous searches by the gardaí. On 26th April 2023, Detective Garda Val Russell attended and seized the passport.

11. The odometer reading for the 24th of June was the same as that for the 28th of June 2017.

Forensic scientist Claire Greaney and Detective Garda Conor O’Sullivan both gave evidence at trial stating that data on the satellite navigation systems (‘Sat Nav’) corresponded to the fuel and ferry receipts in the lorry. This data corresponded to the vehicle’s tachographs, with the exception of four days where manually inserted tachographs suggested the vehicle remained stationary. Detective Garda O’Sullivan presented data from the Sat Nav which continued to record when switched off, which showed significant movement during those four days. It was possible to show with some detail the actual journeys made between those two dates. Of particular significance also, on the appellant’s return journey from the Netherlands he landed in Dover but instead of coming directly to Ireland by the shortest route, he drove as far as Cairnryan in Scotland, travelling to Northern Ireland and ultimately driving to the vicinity of his home. Detective Garda Eugene O’Sullivan gave evidence as to the scrap value of the consignment, and in doing so stated that the rollers were “well worn”

and were useless without a harrow or linkage to accompany them.

12. Blank CMR documents were found in the lorry. A purported CMR in relation to the goods in the lorry was produced in evidence by one John Dolan, called on behalf of the appellant, who said that after he received contact about transporting a consignment from the Netherlands, he recommended the appellant, and sourced in some way or for whatever reason a copy of the CMR (in a different format from the blank items) for the appellant’s load. He said that he had had this in his possession since 2017 – i.e. for almost six years.

He had given it to Mr Gillespie some weeks before the trial. We might add in this regard that Mr Shanahan said that he was asked to search the lorry for the CMR.

13. At trial, the defence made an application to the trial judge to direct an acquittal on the basis that the prosecution evidence taken at its height was not sufficient to demonstrate that the appellant had knowledge of the true contents of the consignment in the lorry. The trial judge refused the application and stated the following: —

“The position of knowledge, the State says that that can be inferred from the other surrounding circumstances and references, in particular the absence of the CMR, the failure to give any information as to where he was going to, where he collected the items and where he was to deliver them to. It also makes reference to the fact that the vehicle appears to have been in Holland for four days and was traversing within Holland for a period of time, which is unusual for somebody in the haulage business.

It also makes the point that the value of the vehicles, or the contents on the vehicles didn't make it economic for those particular four rollers to be transported in the way they were. It also makes reference to the fact that the accused has an encrypted phone, and that the type of phone he had is one that's associated with criminals.”

14. The trial opened shortly before lunch on the 25th of April 2023 and the prosecution opened the case. Counsel referred to the background in these terms:

“… on the 29th of June 2017, the day before Mr Murray's truck was stopped and seized, An Garda Síochána were in possession of information which suggested that a truck driver, Martin Murray, who had an address at Derrycallaghan in Moneygall in County Tipperary and also owned lands in Crumlin Big, it's called, in Moneygall in County Offaly. The information was that he would be driving a truck and was in the process of driving a truck back into the jurisdiction from abroad and it was believed that on that truck, concealed, would be controlled drugs. So, that evening and into that night, so we're now rolling into the 30th of June, An Garda Síochána have an operation in place, a surveillance operation, targeted at that driver, Mr Murray, and that particular truck.”

15. No issue was raised by Mr Gillespie about what had been said in the speech. Details of the background, going beyond what Mr Gillespie says was agreed, was given as aforesaid by a series of prosecution witnesses, including on that afternoon by Detective Garda Eamon Tighe, Detective Inspector Halley and Detective Sergeant O’Farrell (to a lesser extent).

Again no issue was raised about this. On the next day, further such evidence was given in the statements of Detective Garda Julie McCormack, Detective Garda Brian Johnson, Garda David Moran, and Garda Redmond O’Leary, but similarly no objection was taken.

Subsequently, in closing the case to the jury, the prosecutor made further reference to the background in these terms: “[w]e also know that the garda information proved to be correct”. No issue was raised in respect of any of these matters by Mr Gillespie.

16. In his affidavit, Mr Gillespie deposes that before the trial started, his focus was on:

“defending the case on the basis that there was a lack of evidence of knowledge, possession and control”. He seeks to explain away his failure to object to what he now says was prejudicial hearsay evidence – we do not know anything about the detail or the extent to which this is the case in the absence of resolution of the dispute as to what occurred – by saying that during the opening he was concentrating on the contents of certain additional evidence served that morning:

“I now appreciate that remedial action should have been taken by me up to and including requesting that the jury be discharged … it was not due to any deliberate inaction or inactivity on my part, but rather as a result of inexperience and the fact that my attention and focus was directed towards the primary defence of lack of knowledge”.

This is not an appeal based upon incompetent representation and indeed it is not disputed that he had many years’ experience of conducting jury trials in Scotland, and expressly stated his desire to proceed with the case even though he was offered an opportunity to retain counsel (the prosecutor was willing to afford latitude as to when the case would start)

and urged to do so. In fact, on any view of the transcript, the case was most competently conducted and focused in particular on the core issue (which he had given real consideration to in preparing the case), namely the absence of evidence sufficient to show possession and an application for a direction to acquit on that basis.

17. Apart from failure to raise an objection to the admissibility of evidence on a topic to which both sides had specifically directed their minds (even on Mr Gillespie’s evidence) there was no application for a discharge of the jury or for other relief in the trial. That could have been raised after the opening, after a succession of witnesses, and each time a witness adduced the type of evidence in controversy. Even if objection had not been taken or a discharge or other relief sought at the appropriate juncture, it would have been perfectly possible to raise the matter, even belatedly. Furthermore, if there was any concern to the effect that the evidence in question may have gone beyond what was agreed, the judge was not asked to explain to the jury the basis upon which it was, to a greater or lesser extent, adduced (i.e. that it was not adduced to prove possession but merely to explain or show why the gardaí had the appellant under surveillance or the nature of his driving). No such requisition was made.

18. In the original notice of appeal, dated the 12th of January 2024, there is no mention of the issue of erroneous receipt of this evidence. He says that receipt, as a potential error, was brought to his attention by counsel briefed for the appeal. Consequently, an application has been brought to amend the grounds of appeal by the addition of the following ground:

“(iii) The Prosecution led in inadmissible hearsay evidence of a prejudicial nature that the Gardaí had received confidential information relating to the Appellant and his lorry, and that for this reason, the Appellant and his lorry was under surveillance on

30 June 2017. The learned Trial Judge further erred in referring to this confidential information in his charge to the jury.” We have been provided with what we might describe as a consolidated or new notice of appeal (which is sought to be relied upon in the event that the application to add is acceded to). This contains two grounds additional to that referable to the disputed evidence, namely:

“(i) The learned Trial Judge erred in refusing to direct an acquittal of the Appellant in respect of each count on the grounds that the prosecution case, taken at its height, could not demonstrate that the Appellant had knowledge of the presence of drugs in the load which he was transporting on 30 June 2017.

(ii) The learned Trial Judge erred in failing to charge the jury in accordance with Section 29 of the Misuse of Drugs Act 1977 (as amended).”

19. The latter two grounds have not been pursued in any meaningful way. No doubt because they are without merit. The jury were properly charged on the issue of possession, and we do not need to reprise the evidence to state our conclusion that there is sufficient circumstantial evidence to make out a prima facie case of possession, which has not been undermined in any way by the defence by raising a reasonable doubt in accordance with the legal burden upon them in relation to the fact that the item possessed was a controlled drug.

20. The manner in which the case was defended, in particular without objection to the evidence in controversy, without any application for a discharge of the jury or requisition to the judge is consistent only with informed decisions taken during the course of the trial. It may well be that Mr Gillespie was preoccupied during the opening with materials served immediately before the commencement, but the opportunity existed to consider the position during the immediately following luncheon adjournment and the afternoon of that first day; when the disputed evidence was first adduced, nothing was done and even a belated application was not made. These matters might be of relevance if there was any suggestion of incompetent representation, a proposition which is expressly disavowed and indeed, we do not believe that there is any basis for suggesting any incompetence.

21. The People (DPP) v. Cronin [2006] 4 IR 329 establishes that only in circumstances where the court was of the view that, due to some error of substance, a fundamental injustice had occurred, should the court allow a point not raised at trial to be argued on appeal. This case is a good example of one where the refusal to permit the ground of appeal now in debate to be raised, or to be acceded to, applies on the basis of Cronin. There were repeated opportunities to canvas issues arising from this evidence – in circumstances where it is now said that it was of fundamental importance. The only question which could arise under the rule is whether or not a fundamental injustice would be done were the appellant to be shut out from raising it. We cannot see how this could be so in the light of the run of the case and the deliberately chosen focus of the defence on the issue of obtaining a direction. It must be rare indeed for it to be said that in a competently conducted case, where no issue was raised at trial (by the defence for its own reasons) that it could give rise to an injustice.

This is not such a case.

22. We are of the view that no fundamental, or indeed any, injustice would be worked by refusing to permit amendment; in doing so, as in all of these applications, we have considered the merits of the point in full as aforesaid.

23. We therefore refuse the application to add this ground and dismiss the appeal.