Court of Criminal Appeal dismisses appeal where sufficient evidence supported the jury's finding of drug market value exceeding €13,000.

THE COURT OF CRIMINAL APPEAL

[Record No: CCA 259/2007]

Denham J.

Herbert J.

Hanna J.

Between/

The Director of Public Prosecutions

Applicant/Respondent

and

Alphonsus Connolly

Respondent/Appellant

Judgment of the Court delivered the 12th day of May, 2009 by Denham J.

1. This is an application by Alphonsus Connolly, the appellant, for leave to appeal against his conviction.

2. The appellant was convicted by the Naas Circuit Criminal Court, on Count No. 1, of having in his possession on the 16th November,

2004, at Kill West, Kill, Co. Kildare, in the District Area of Naas, a controlled drug, being amphetamine, for the purpose of selling or

otherwise supplying the drug to another and, at the time while the drug was in his possession, the market value of the controlled drug

amounted to €13,000 or more.

3. The monetary amount of €13,000 was established by the Euro Changeover (Amounts) Act, 2001, wherein s.1(3) provided that from

the 1st January 2002 for each monetary amount mentioned in column (2) of Schedule 3 at a reference number there shall be

substituted the amount mentioned in column (3), whenever such a monetary amount is referred to in an enactment mentioned in

column (2) of Schedule 4. In Schedule 3 reference number 6 refers to the Irish pound amount of £10,000, and to the Euro amount of

€13,000, and Schedule 4, in column 2, refers to the Misuse of Drugs Act, 1977, s.15A(1)(b).

4. The appellant had pleaded guilty at his trial to Count No. 2, to the offence of possession on the 16th November, 2004, at Kill West,

Kill, County Kildare, of a controlled drug being amphetamine for the purpose of selling or otherwise supplying it.

5. The appellant has brought this application for leave to appeal on a single ground, being:-

"The learned trial judge erred in fact and in law in not withdrawing the case from the jury on an application at the close of

the prosecution case of no case to answer, made on the basis that there was no evidence on which a properly directed

jury could come to the conclusion and be satisfied beyond a reasonable doubt that the market value of the drugs

concerned was €13,000 or more."

6. Oral and written submissions were made on behalf of the appellant and on behalf of the Director of Public Prosecutions.

7. The appeal turns on whether, at the close of the prosecution case, there was no evidence on which a properly directed jury could

come to the conclusion and be satisfied beyond reasonable doubt that the market value of the drugs was €13,000 or more.

8. At trial the burden remained on the State to satisfy the jury beyond reasonable doubt as to the market value of the drug in the

possession of the applicant.

9. The evidence at trial established that the applicant had in his possession a red shopping bag containing ten sealed clear plastic

bags each containing a white powder. Dr. Mary Casey, B.Sc.(ch), PhD. a forensic scientist, attached to the Forensic Science

Laboratory located at Garda Headquarters in Dublin, initially analysed the powder in one of these clear plastic bags and found it to

contain amphetamine, a controlled drug. She then weighed the powder in the entire ten clear plastic bags and ascertained that the

total weight of the powder was 9.717kg. Dr. Casey told the court and the jury that the powder in a total of five of these ten clear

plastic bags was analysed and that in each case it was found to contain amphetamine.

10. In cross examination Dr. Casey told the court and the jury that:-

"the sample was carried out in accordance with an accredited laboratory procedure … if there were up to twenty items or

twenty packs in the case, such as in this case there were ten, routinely half of those would be analysed so in this case

five of these would be analysed so what I can say from that is that I am 100% confident that those five packs which

were analysed contained amphetamine. I can also say with 99% confidence that at least seven out of the ten packs

would contain amphetamine and in my professional opinion taking into account the general appearance of the packs and

the powder in all of the packs that in my professional opinion it is highly unlikely that any of these packs would be

negative."

11. Dr. Casey was not cross-examined as to the sampling procedures adopted, the tests carried out, or the mathematical probabilities

involved in the computation.

12. Dr Casey's opinion was a positive opinion proffered by an expert whose professional qualifications and experience were not

challenged and who was not shown to be partisan in the sense explained in Reg. v. Ward [1993] 1 W.L.R. 619 at p.674.

13. As was pointed out by this Court in D.P.P. v. Finnamore [2008] I.E.C.C.A. 99, there is no principle or rule of law known to this

Court which requires in each and every case that every package found must inevitably be individually analysed before a conclusion

can be considered safe. In that case an analysis was carried out of 16 out of 48 packages wrapped in a substantially identical manner

and placed together in a black refuse sack and then within a rucksack and each sample was found to contain amphetamine. While

stating that in a different case on different facts it might be necessary to analyse a greater number of the packages found, this Court

in that case was satisfied that there was sufficient evidence upon which a jury properly directed could safely and reasonably deduce

or conclude that all of the material found was in fact the same as the material which, on analysis, was determined to contain

amphetamine.

14. This Court is satisfied that the principles of law established in that case apply to the facts of the instant case.

15. It seems well established in other common law jurisdictions, particularly in the United States of America and Australia, that

probability theory can be used to estimate, from a properly representative sample, the probability of the presence of a particular

substance in a greater amount of the same material, to such a degree of accuracy that the contrary cannot reasonably be supposed.

This is more than sufficient to satisfy the standard of proof in criminal trials, which is proof beyond reasonable doubt. In the instant

case, Dr. Casey gave evidence that with 99% confidence she could state that at least seven out of the ten clear plastic bags would

contain amphetamine.

16. The principle basis for the applicant’s application for leave to appeal to this Court is the admission by Detective Sergeant Grennan

in cross examination that the market value of the controlled drug in the possession of the applicant would "come down" accordingly if

the quantity of the drug present in the powder was reduced.

17. Dr. Casey in cross examination stated that because a test for purity or quantity (quantitative analysis) is not a routine part of the

test for identity or presence (qualitative analysis) she could not say for definite what the purity of the samples were, but she could

give a range in which amphetamine purities generally fell and that was “maybe” 10% to 40%. Dr. Casey accepted that the presence

of 1% of amphetamine in the powder would be sufficient to produce a positive result in the test used to detect its presence in that

powder. However, she denied that the quantity of amphetamine in the powder could be anywhere from 1% to 99%.

18. Detective Sergeant Grennan gave evidence that the market value of the total of 9.717kg of powder in the ten clear plastic bags

was €145,755.00, on the basis that the powder contained 10% amphetamine. He accepted that the five bags actually tested for the

presence of amphetamine would have a market value of €72,877.50, assuming that each contained 10% amphetamine, but would

have a market value of only €7,287.75 if each had an amphetamine content of 1%.

19. It was accepted by both sides at the hearing of this application that on the basis of Dr. Casey’s evidence, Detective Sergeant

Grennan had correctly adopted the lowest figure of 10% in arriving at his valuation of the controlled drug in the possession of the

applicant. Detective Sergeant Grennan stated in evidence that a single kilogram of powder containing 10% amphetamine had a value

of €15,000.00. It was accepted at the hearing of this application that seven of the clear plastic bags of powder, assuming an

amphetamine content of 10% in each, would have a total market value of €105,000.00.

20. It was submitted by Senior Counsel for the appellant that the learned trial judge should have withdrawn the case from the jury at

the conclusion of the case for the prosecution because the evidence established only that five of the clear plastic bags contained a

powder with a detectable level of 1% amphetamine, and therefore a market value of €7,287.75, which was manifestly not sufficient to

establish the offence charged. He submitted that the learned trial judge erred in law leaving the case to the jury on the basis that

the controlled drug content and therefore the market value of the powder could be ascertained by reference to, “a range in which

amphetamine purities generally fell . . . that is maybe 10% to 40%, as this was to invite the jury to speculate”. There was, he

contended, no reasonable basis on which a jury properly directed could reasonably infer from the evidence that the value of the

controlled drug in the possession of the applicant had a market value exceeding €13,000.

21. Dr. Casey admitted that a quantitative analysis of the powder in any of the ten clear plastic bags in the possession of the

applicant had not been carried out. The Court is satisfied that a quantitative analysis of the contents of each of the ten bags or of

the contents of five of the bags as a representative sample, would have established to a high level of certainty the quantity of

amphetamine present in the powder contained in each of the ten bags.

22. Section 15A of the Misuse of Drugs Act 1977, unlike similar legislation in other common law jurisdictions, does not require the

State to prove, in order to establish the offence, that the accused had a specific minimum percentage of the controlled or illegal drug

in his possession.

23. Dr. Casey accepted in the course of her evidence that the qualitative analysis carried out of the powder contained in each of the

five sample bags would give a positive result even if as little as 1% amphetamine was present in the powder.

24. However, it was Dr. Casey's expert opinion, and her qualifications and experience to express this opinion were not challenged,

that the quantity of the drug present in the powder contained in each of the ten clear plastic bags did not fall somewhere between

1% and 99%. It was her positive opinion that the quantity of the drug present fell somewhere between 10% and 40%. The basis for

this opinion was the statement of fact that the range in which amphetamine purities generally fell was between 10% and 40%.

Initially Dr. Casey said “maybe 10% and 40%”. However the Court is satisfied, having regard to the entirety of her evidence, that this

initial use of the word, “maybe” was in the nature of a mannerism and was not intended by the witness to suggest that the indicated

range was just some form of guesstimate.

25. Dr. Casey was not challenged on this statement of fact, nor was she questioned as to the basis for it or as to what exceptions

there might be to it. It was put to her that the correct inference to be drawn from her evidence was that the quantity of the

controlled drug present in the powder could be anywhere from 1% to 99%. She declined to accept this and stated that she would

assume that the amphetamine was within the range in which the purity of amphetamine powders generally fell which was between

10% and 40%. The basis for this assumption was not challenged or criticised.

26. In the circumstances, this Court is satisfied that there was evidence to go to the jury upon which it was reasonably and fairly

open to the jury as triers of fact, properly directed, to reject or to accept this evidence and to give it whatever weight they

considered appropriate in the context of all the other evidence in the trial. As in the case of D.P.P. v. Finnamore (above cited), this

Court is satisfied that a jury properly directed could lawfully conclude from the evidence tendered by the prosecution that all the

powder in each of the ten clear plastic bags was the same and therefore contained amphetamine. By contrast with the garda

evidence in that case, in the instant trial Detective Sergeant Grennan accepted that the quantity of the controlled drug in the

powder would materially affect its market value. However, for reasons already stated this Court is satisfied that there was evidence

on which the jury properly charged and without speculation could find that the quantity of the controlled drug in the powder in each

of the ten clear plastic bags was at least 10%, so that the market value of the drug in the possession of the applicant amounted to

at least €145,755.00.

27. This Court is satisfied that there was no error of law on the part of the learned trial judge in failing to withdraw the case from the

jury at the close of the prosecution case. This Court is further satisfied that there was sufficient evidence from which the jury,

properly directed, was entitled to come to the conclusion and be satisfied beyond reasonable doubt that the market value of the drug

in the possession of the applicant exceeded €13,000.

28. The Court will treat this application for leave to appeal as the hearing of the Appeal and would dismiss the appeal.