Court of Criminal Appeal dismisses appeal regarding jury direction on statutory defence under s. 29(2) of Misuse of Drugs Act 1977.

COURT OF CRIMINAL APPEAL

Record No.: 129/08

Hardiman J.

Budd J.

Hanna J.

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

RESPONDENT

v.

OLUWAMUYIWA AKINOLA

APPLICANT

Judgment of the Court delivered on the 31st day of May, 2011, by Mr. Justice Declan Budd

Background

The applicant, Mr. Olumuyiwa Akinola, a Nigerian national, is 37 years old and was born on 12th May, 1972. He arrived in Ireland in or

around February, 2004, and sought asylum. He was granted residency based on his parentage of Irish born children. He has a wife and

two children in Ireland and a sick, elderly mother in the Republic of Benin. He also has two other children in Nigeria. He is currently

detained at Cork Prison following his conviction by a jury before Her Honour Judge Alice Doyle at the Circuit Criminal Court, Waterford,

on 22nd January, 2008.

Facts

On 24th July, 2006, a customs officer, Mr. Richard Hampton, working at Dublin Airport, examined a parcel which was a large cardboard

container, the manifest slip attached to which indicated that it had come from Nigeria. The parcel bore airway bill no. 8564653941 and

the sender was identified on it as a Gasi Fatai, 13 Anjanri Street, Lagos Island in Nigeria. The parcel was addressed to Gasi Samsi, No.

35, O’Connell Street. Waterford. The documentation accompanying this package indicated that it contained videos documenting

matters pertinent to the history and culture of Nigeria, but the customs officer was suspicious of the package and opened it. Upon

opening it, he discovered that it did contain a large number of videos but also other material as well such as CDs, DVDs, bars of soap

and some clothing. Having examined one of the videotapes more closely, his suspicions were raised because there was very little tape

at one side of the videotape. The videotape was opened and a small package containing white powder was found which he suspected

was drugs. Tests subsequently established that this powder contained cocaine.

Following on from this, the package in question was resealed and arrangements were made with gardaí attached to the National Drugs

Unit and gardaí based in Waterford to carry out what is called a controlled delivery which was designed to identify the person who

was intended to pick up this package. This delivery was carried out on the following day, 25th July, 2006. They arranged for the

parcel to be delivered to the address in a “Nightline” courier van being driven by a customs officer, Mr. Adie Fitzpatrick, who was

accompanied by Detective Garda William Armstrong who was posing as a courier. The premises at the address of 35 O’Connell Street,

Waterford, was a shop on the ground floor with four flats upstairs. However, there was no particular flat number indicated on the

address on the parcel. The front door entrance was open when Detective Garda Armstrong arrived and he knocked on the doors of

each of the four flats without getting a reply. The Detective Garda then made out a short note on a Federal Express docket

addressed to Mr Gasi Samsi to indicate that he had attempted to deliver a package on behalf of a company called “Night Line Delivery

Service” and leaving contact details to arrange delivery. He left this note in the hallway inside the front door and then returned to the

white transit van which had pulled up outside with the logo “Night Line” on it.

Having returned to that van, the accused man, Mr. Akinola, was observed by Detective Garda Keith Goff coming out from 35 O’Connell

Street and approaching the van. The accused then spoke to Detective Garda Armstrong through the window. Garda Armstrong got

out and the accused indicated that he was to collect a package for two men who were waiting for him to bring it to Poleberry. The

accused produced a white mobile phone and had the matching airway bill number for the package, being 8564653941, on the mobile

phone. Upon Mr. Akinola quoting this number, Detective Garda Armstrong was prepared to give him the package on the basis that he

signed for it, and this he did.

The accused printed the name Gasi Samsi and signed it on the docket. Detective Garda Armstrong then left the scene and Mr. Akinola

who was under observation by other members of the gardaí, including Detective Garda Goff, was seen to stand outside 35 O’Connell

Street with the package for a short period of time while he apparently telephoned a taxi to take him away from the area. A taxi

arrived and the accused was observed carrying the box he had got from Garda Armstrong into the taxi. Detective Garda Goff told the

jury that a decision had been made not to let the accused leave the street and arising from that he, Detective Garda Goff,

approached the taxi on foot and opened the back door on the left side. The accused was in the seat behind the driver. On the seat

beside the accused was the same box that he had taken delivery of from Detective Garda Armstrong. Detective Garda Goff told the

jury he showed his identification to the accused, introduced himself and asked him to step out of the taxi. As the accused was

getting out of the taxi, Detcetive Garda Goff told the jury the accused said “This is for a very bad man” and words to the effect that

he would cooperate fully. Detective Garda Goff then cautioned the accused and the accused continued talking saying “Very bad man,

they are up at Poleberry”. Poleberry was about a mile and a half from O’Connell Street. The accused was subsequently arrested by

Detective Sergeant Petitt and detained at Waterford Garda Station for the purpose of the investigation of the offence.

The parcel was examined in detail and found to contain 53 video cassettes, apart from the other materials. Each of these video

cassettes contained a small plastic bag containing white powder. These bags were forwarded to the Forensic Science Laboratory

attached to the Department of Justice in Dublin and a random analysis was carried out on 15 of the 53 bags. Each bag was found to

contain cocaine but the cocaine concentration in the powder was not determined.

Particulars of Conviction and Indictment

Count No. 1: Possession of controlled drugs for the purpose of selling or otherwise supplying the same to another in

contravention of Article 4(1)(b) of the Misuse of Drugs Regulations 1988, contrary to s. 15(A) (as inserted by s. 4 of the

Criminal Justice Act 1999) of the Misuse of Drugs Act 1977.

Count No. 2: Possession of controlled drugs for the purpose of selling or otherwise supplying the same to another in

contravention of Article 4(1)(b) of the Misuse of Drugs Regulations 1988, contrary to s. 15(1) of the Misuse of Drugs Act

1977, as amended by the Criminal Procedure Act 2010.

Count No. 3: Possession of controlled drugs contrary to s. 3 of the Misuse of Drugs Act 1977.

The applicant pleaded not guilty to each of these offences on 17th October, 2006. The trial began on 16th January, 2008 and

concluded on 22nd January, 2008, in Waterford Circuit Criminal Court before Her Honour Judge Alice Doyle. The applicant was

convicted of all of the offences above and sentenced on the 16th April, 2008, to ten years which was to take effect immediately with

time allowed for the period previously spent in custody while awaiting trial, that is, from the 22nd January, 2008. It was the opinion of

the trial judge that a sentence of twelve years would have been appropriate but for the personal and mitigating circumstances

presented on behalf of the applicant by counsel. This included that he is solely responsible for the provision and care of his mother

and the two children in Nigeria and shares the responsibility of providing for the family in Ireland with his wife. Further, evidence was

given at the trial of the hard working nature of the applicant and his willingness to re-train so as to be employable. Also, when the

applicant was arrested, he offered to take the Gardaí to the place where he was instructed to bring the package so that the people

there could be arrested. This was not pursued by the Gardaí.

Evidence at the trial

The jury heard from Detective Sergeant Petitt that when he came up to where Detective Garda Goff and the accused were, the

accused was talking in an animated manner. Before he, the Detective Sergeant himself, had an opportunity to caution the accused or

to say anything to him, the accused had said "It's not for me, it's for a bad man, it's for a serious man. I know it's not good

package. Drugs are not mine." Detective Sergeant Petitt said that, shortly after they were made, he noted the remarks made by the

accused in his notebook which was an exhibit in the case.

While the defence suggested in cross-examination of both Detective Garda Goff and Detective Sergeant Petitt that it was the Gardaí

who had made the first reference to drugs and that, in particular, the Gardaí had told the taxi driver that they were looking for drugs

before the accused had mentioned drugs, this was denied by the relevant Gardaí and the only evidence before the jury was that the

accused had referred to drugs in a spontaneous manner.

The jury heard from Inspector John Hunt that at the time it was decided to stop the taxi leaving the area, he had approached the

taxi, went up to the driver, produced identification and said to the driver to stop and not to move away. He was not cross-examined.

The jury heard evidence from the taxi driver who said the Garda had come to the driver’s door, showed him identification and said

‘would you stop the van please’ and he stopped. This was also the evidence he gave when pressed on the point in cross-examination

on this aspect. The only evidence before the jury therefore was that the accused had referred to drugs in a spontaneous manner.

The jury heard that the accused was arrested at the scene, that he was later searched at the Garda station and that among the

items found on him were two mobile phones and also a piece of paper with the name Gasi Samsi written on it. The accused when

arrested gave his address as Apartment 30, Harbour View, Scotch Quay, Waterford, for which a search warrant was later obtained

and, during the course of the search, travel documents and a passport were seized. The travel documents including flight details and

boarding cards for flights on 12th July (which was 13 days before his arrest) from Casablanca to London and then on to Dublin. The

passport in the accused’s name had two stamps on it for arriving at the Republic of Benin on the 4th July, 2008 and one for departing

from there on the 12th July, 2008.

The jury heard that during the course of a total of forty-eight hours detention, Mr. Akinola was interviewed on nine separate

occasions in relation to the matter and he made no admissions during the course of those interviews. The account he gave to the

Gardaí during the course of those interviews was to the effect that his understanding was that the package contained pirated videos.

He indicated that his instructions had been to bring the package to two men in Poleberry.

Grounds of Application

Counsel for the applicant contend that the trial judge erred in fact and in law in her charge to the jury as to what constitutes

possession under the law particularly as to the mens rea of the accused and when dealing with the defence proffered by him and the

duty of the prosecution to negate such defence beyond reasonable doubt.

The Judge’s Charge

The trial judge’s initial charge to the jury included the following passage dealing generally with the burden on the prosecution to prove

the case against the accused:-

“I am going to remind you of three absolutely basic principles which must govern your deliberations. They are simple and you

have heard them before. They are, one, the defendant is presumed to be innocent until proven guilty to your satisfaction.

Two, that, accordingly, the onus of proof rests on the prosecution at all times. It is for them to prove the defendant guilty

and not for him to establish his innocence. The prosecution's task is to prove that the defendant is guilty beyond a reasonable

doubt and not any other standard. You must be satisfied there is no reasonable doubt of the defendant's guilt before you can

convict. Let me explain these rules.

Every person, not just this defendant but including him, is presumed to be innocent until the contrary is shown. This is a

matter of fundamental right vested in you and every person in this State. No one can be put at risk of their liberty and

reputation just because someone else believes them to be guilty or there are suspicious circumstances. This trial starts with

the defendant presumed to be entirely innocent in every respect. It would be wrong of you to think that merely because a

defendant has been charged with an offence that he should be looked on with suspicion. Innocent as well as guilty persons

come before the courts as defendants, and you must presume the defendant is one of those innocent persons until you are

convinced otherwise by the evidence. The prosecution has a task of convincing you by evidence of the defendant's guilt. It is

not for the defendant to establish his presumed innocence. Lawyers say that the prosecution bears the onus of proof, and this

is something that you must bear in mind at all times.

The prosecution has the duty of positively convincing you of the defendant's guilt. The defendant has no duty to prove

positively his innocence. Indeed, in many cases it would be difficult or impossible for him to do so. One can hope to prove

positively that a person did a particular thing, but it may be impossible to prove positively that he did not do it”.

Later during the course of her initial charge the trial judge dealt with each of the counts in turn and when dealing with the issue of

possession for sale and supply said the following to the jury:-

“Ladies and gentlemen, I am going to deal with firstly count no. 2 which is possession of a controlled drug for the purpose of

selling or otherwise supplying the same to another in contravention of Article 4.1B of the Misuse of Drugs Regulation 1988

contrary to Section 15 of the Misuse of Drugs Act 1977. The offence is committed when a person has in his possession a

controlled drug for the purpose of unlawfully selling or otherwise supplying it to another. For a person to be guilty of the

offence of being in possession of a controlled drug for the purposes of sale or supply a number of basic ingredients are

necessary. One, he must be in actual basic physical possession and this means that he has physical, complete physical control

over it. Two, he must know, have full knowledge that he is in possession of them and have the necessary intention to possess

and control them. Three, he must have the necessary intention present at the time to sell or supply them to another. There

must be present at the same time a state of mind or criminal intent to actually possess or control the drugs. This is called by

lawyers “mens rea”. In the case of possession of a controlled drug it is an intention to possess or control the drug.

Therefore, the prosecution must prove that the accused was in actual basic possession or control of the controlled drug, and

that means that the accused had complete physical control over it. This includes anything subject to control which is in the

custody of another person or in something such as a house or motorcar over which he had control, and that he has

knowledge of its existence, its situation and that he has the intention to possess or control it. This intention must be present

at the same time as the control. A person cannot control or possess a drug of which he has no knowledge. The phrase

"possession and control" denotes the right and power to deal with the drugs in question. In considering whether the accused

had possession and knowingly had it you are entitled to consider all the factors in the case, to include any evidence as to the

manner and circumstances that might suggest or negate possession or control, including the circumstances in which the

accused is alleged to have had possession. You can also consider all of the evidence given in this trial, including any other

evidence concerning the circumstances under which he is alleged to have received the possession of them and the

circumstances under which he came into possession, and his state of knowledge or means of knowledge at that time.

On all of these matters you must decide whether in addition to physical control he has or ought to have imputed to him the

intention to possess or the knowledge that he does possess what is in fact a prohibited substance. A person is presumed to

intend the natural and probable consequences of their actions. So a person has possession if you are so satisfied on all the

evidence that he intended to have it. If you are satisfied that the accused knew that there were drugs hidden or stored and

could at any time retrieve them, then you can be satisfied he had control or possession if you are satisfied of his knowledge. If

he has this intention or knowledge, it is not necessary that he should know the exact nature of the substance. Whether it was

amphetamines or heroin or cocaine, you must decide whether there is a genuine ignorance of the presence of the substance.

A person does not possess something of which he is not aware.

Now, in relation to sale or supply, to sell means to transfer for money or value. It is just like anything else. That does not

apply here. To supply also means what you understand it to mean in ordinary English, namely, giving or transferring it to

someone else. It includes distributing it. It is in the ordinary words of giving it to or furnishing it to or providing it to another,

so that the other can do with it as he wishes. Unlawful selling means selling without authority or licence. Again, that does not

apply here.

Possession in relation to this charge must be possession with a view to sale or supply even though there is no evidence of

actual sale. Again, sale does not apply here. It is the action of supplying it on to another.

Ladies and gentlemen, Section 29.1 of the Misuse of Drugs Act 1977, subsection (1):-

"In any proceedings for an offence under this Act in which it is proved that the defendant had in his possession or

supplied a controlled drug, the defendant shall not be acquitted of the offence charged by reason only of proving that he

neither knew nor suspected nor had reason to suspect that the substance, product or preparation in question was the

particular controlled drug alleged."

So he does not have to know that it was specifically cocaine. It can be any controlled substance.

"(2) In any such proceedings in which it is proved that the defendant had in his possession a controlled drug, it shall be a

defence to prove that (A) he did not know and had no reasonable grounds for suspecting (1) that what he had in his

possession was a controlled drug, or (2) that he was in possession of a controlled drug or (B) he believed the substance,

product or preparation to be a controlled drug or a controlled drug of a particular class or description and that if the

substance, product or preparation had in fact been that controlled drug or a controlled drug of that class or description

he would not at the material times have been committing an offence under this Act".

Ladies and gentlemen, that part does not apply. What I just spoke to you about, Section 29, is that, firstly, the onus of proof

is always on the prosecution to prove that the accused had on him a controlled drug and also then you have to go on:

Possession is the possession of a controlled drug. That is count No. 2. I have already -- count No. 3, I beg your pardon, No. 3.

Possession is the control of the substance being a controlled drug. It is the ordinary meaning of it. So the prosecution have to

prove that the accused was in possession of the controlled drug. Then they have to prove that it was in their possession for

the purpose of supplying it to another. That is count No. 2.

It is a defence, and this has been led in this case, that the accused said he never thought there were drugs in the box. It is up

to the prosecution to prove beyond reasonable doubt that he possessed it for the purpose of selling and supplying it or

supplying it and that he knew what was in the box. That has to be proved beyond reasonable doubt. If you accept that the

accused did not know what he had, did not know he had drugs or did not know he had a controlled substance, again it doesn't

need to be cocaine, it can be a drug or a controlled substance, if you accept that he did not know that, then in those

circumstances you have to acquit. It is a defence”.

The learned trial judge returned to the issue near the end of her charge (p. 35, line 3):-

“In relation to the defence that the accused did not know or had no reasonable grounds for suspecting the controlled drugs,

you also have to have regard for "had no reasonable grounds to believe". In other words, was he reckless as to whether there

were drugs contained in the box? What is reckless? Being reckless means not caring about the consequences of your actions

or recklessness involves the assumption of a risk without caring about the consequences. All criminal offences have two

necessary and essential ingredients. One is the criminal act itself and the other is the necessary criminal intention, and that is

the intention to do what was actually done. I have already explained that to you. It is called “mens rea” by lawyers. You must

be satisfied, therefore, that a person accused of a criminal offence not only committed the criminal act, but at the time he

committed it he had the necessary criminal intention to do so. Intent is present where the purpose of the accused is to

engage in conduct to achieve a desired end”.

After the trial judge’s initial charge, no requisitions were made by counsel for the defence on the aspect of the charge criticised in

their grounds of appeal and submissions. Counsel for the prosecution did requisition the court on the charge as it related, inter alia, to

the s. 29(2) defence of the Act of 1977. The following is the relevant passage from the transcript:-

“MR DELANEY: Going on to the question of Section 29.2 then, the Court seemed to initially interpret that provision as requiring

the prosecution once the defence has been raised to prove that the accused actually knew that what he had in his possession

was controlled drugs. That seemed to be the interpretation which the Court placed on the provision, which is not in fact what

the prosecution are required to prove once section 29.2 has been relied upon. What the prosecution must prove beyond

reasonable doubt is that the accused either knew or had reasonable grounds for suspecting that what he had in his possession

were controlled drugs.

JUDGE: Yes.

MR DELANEY: So it is an either/or situation. In fairness to the Court, I do know, Judge, that you did come back afterwards and

mention recklessness and indicate to the jury what recklessness involved and that it would be sufficient if they were satisfied

that the accused was reckless as to whether or not drugs were contained in the container, but I think the jury may have been

confused as to what in fact section 29.2 did involve. I think the overall impression that the jury may have been left with is

that the prosecution in this case must prove actual knowledge on the part of the accused, that what he had in his possession

were controlled drugs.

JUDGE: What you are saying, just to clarify this, is that the prosecution must prove that, firstly, that possession, that he had

a container of controlled something...

MR DELANEY: No, leaving aside actual possession. If I could suggest perhaps this format, that the prosecution must prove that

the accused actually as a matter of fact had in his possession controlled drugs. That would be the first thing the prosecution

would have to prove.

JUDGE: Yes.

MR DELANEY: Secondly, the prosecution must prove actual knowledge that the accused had a container which contained

something.

JUDGE: Yes.

MR DELANEY: Thirdly, that the prosecution must prove that in relation to what that something was that the accused either

knew it was controlled drugs or had reasonable grounds for suspecting that it was controlled drugs.

JUDGE: Yes.

MR DELANEY: I think subject to what my friend may have to say in relation to the matter, I respectfully submit that that

might meet the situation.

JUDGE: That covers the possession. Now move on further, that covers section 29.2 as well?

MR DELANEY: It does, Judge, yes, the last limb, the third limb deals with section 29.2 because, you see, in my submission, a

different mens rea is required in relation to knowledge of the container, the fact that it contained something, and the fact

that the thing is controlled drugs under section 29.2.

JUDGE: Yes.

MR DELANEY: Actual intention and intention only is required in relation to knowledge of the container, the fact that it contained

something. Intention or recklessness I suppose is required, actual knowledge or recklessness is required in relation to the fact

that the thing is a controlled drug and that is under section 29.2.

JUDGE: Yes”.

In response to counsel for the prosecution’s requisition on this point, counsel for the accused did not raise any issue as to whether or

not the court needed to recharge the jury on the burden of proof which arises for the prosecution when countering a defence raised

under s. 29(2) of the Act of 1977. The relevant passage follows on from that last quoted and is as follows:-

“MR LADENEGAN: Yes, indeed, Judge, except for the first submission of my friend as regarding what the prosecution has to

prove in relation to the counts. My friend suggested that the prosecution has to prove that the accused as a matter of fact

had controlled drugs. It is just the sequence that my friend said it in that I have a matter with. I would say that the

prosecution has to prove, first, that the accused had the package in his control.

JUDGE: Yes.

MR LADENEGAN: That package contained something and that what was contained in that package was controlled drugs. Then I

would agree with my friend that in relation to that something, the accused, the prosecution has to prove that the accused

either knew it was controlled drugs or had reason to believe that it contained drugs.

JUDGE: Or had reasonable grounds for suspecting.

MR LADENEGAN: Sorry, had reasonable grounds for suspecting that it contained drugs, yes, Judge”.

Counsel for the accused then moved on to make a requisition on the judge’s summary of the evidence. During the course of her

recharge the learned trial judge recharged the jury on the relevant point as follows:-

“Thank you, ladies and gentlemen. I need to address you on a number of matters now before you retire. In relation to

the factual possession, the prosecution has to prove beyond reasonable doubt, one, that the accused had a packet in

his control or container, that the package contained something, and they also have to prove what was contained in the

package was controlled drugs. The prosecution must further prove the appropriate mens rea or criminal intent, that the

accused knowingly possessed the container and in doing so knew it contained something and that the accused either

knew in this case that it contained a controlled drug or had reasonable grounds for suspecting that the thing in the

container was a controlled drug.”

The judge then went on to recharge the jury on aspects of her summary of the evidence which had been the subject of the

requisitions. When the jury had again risen she asked whether anything arose and counsel for both sides indicated that nothing

further arose.

The Law

Section 29 of the Act of 1977:-

“(1) In any proceedings for an offence under this Act in which it is proved that the defendant had in his possession or

supplied a controlled drug, the defendant shall not be acquitted of the offence charged by reason only of proving that he

neither knew nor suspected nor had reason to suspect that the substance, product or preparation in question was the

particular controlled drug alleged.

(2) In any such proceedings in which it is proved that the defendant had in his possession a controlled drug, it shall be a

defence to prove that

(a) he did not know and had no reasonable grounds for suspecting

(i) that what he had in his possession was a controlled drug, or

(ii) that he was in possession of a controlled drug or

(b) he believed the substance, product or preparation to be a controlled drug or a controlled drug of a particular class or

description and that if the substance, product or preparation had in fact been that controlled drug or a controlled drug of

that class or description, he would not at the material times have been committing an offence under this Act...”

Decision

Section 29(2)(a) of the Act of 1977 provides a defence for an accused that he did not know or had no reasonable grounds for

suspecting that he was in possession of a controlled drug. The onus is on the defence to rebut the presumption of knowledge. This

may be done by either relying on comments made by the accused when interviewed by the gardaí or by adducing evidence during the

trial. In the case of DPP v. Smyth and anor. [2010] IECCA 34 (Unreported, Court of Criminal Appeal, 18th May, 2010), the Court of

Criminal Appeal held, per Charleton J., (Finnegan, McMahon JJ concurring), that the defence under s. 29(2)(a) of the Act of 1977 has

the consequence of casting an evidential burden of proof on the accused. The evidential burden is discharged by an accused by

proving the existence of a reasonable doubt that he did not know, and had no reasonable ground for suspecting that what he

possessed was a controlled drug. Charleton J. held as follows in relation to this point:-

“This may be done by pointing to a weakness in the prosecution case, by reference to a statement made to the gardaí, or by

the accused himself giving evidence. Because this is a legal burden of proof, the decisions as to what evidence on that issue

will be sufficient so as to raise a reasonable doubt are for the accused. He must decide if he has put sufficient evidence by way

of proof to raise a reasonable doubt before the jury”.

The prosecution’s duty throughout is to establish, beyond a reasonable doubt, that the accused had possession of a controlled drug.

Counsel for the applicant accept that the jury were properly charged on the issue of mens rea and were properly charged on the

statutory defence open to the accused under s. 29(2) of the Act of 1977, as amended. Counsel for the applicant maintain, however,

that the judge failed to charge the jury that once the accused raised the defence under s. 29(2)(a), the prosecution must then

negative this defence and must do so to the standard beyond reasonable doubt. This appeal is, therefore, confined to the onus of

proof which arises once the s. 29(2) defence has been raised. In response, counsel for the prosecution contend that it is not open to

the accused to seek to rely upon this ground of appeal in circumstances where no requisitions were made on this point at the trial. In

the alternative, counsel for the prosecution contend that the trial judge did charge the jury that the onus was on the prosecution to

negative the defence and did charge the jury to the effect that the prosecution must do so beyond reasonable doubt.

The manner in which the Circuit Criminal Court was to charge the jury on the question of possession, the necessary mens rea and the

defence available under s. 29(2)(a) of the Act of 1977, was the subject of extended exchanges between counsel for both sides and

the court both before the trial judge gave her initial charge to the jury and at the requisitions stage. On the morning of 22nd January,

2008, which was after counsels’ speeches had concluded but before the court commenced its charge, counsel for the prosecution

indicated to the court the agreed view of both the defence and the prosecution on the appropriate manner in which the burden on

the prosecution arising from a s. 29(2)(a) defence, once raised, should be addressed in the charge. Counsel for the prosecution set it

out in the following terms:

“this creates not a legal burden on the defence but merely an evidential burden, and that on the facts of this particular

case that evidential burden has been discharged because there is evidence from the various interviews with the accused

that, from his point of view, what was contained in the package was pirated videos. The prosecution are prepared to

accept that that discharges whatever evidential burden is placed by subsection 2 of section 29 on the defence. That

being so, the onus is on the prosecution to prove beyond reasonable doubt that the accused either knew or had reason

to believe that the package in his possession contained controlled drugs”.

The above passage is the agreed formula of words which counsel for the prosecution and the defence confirmed should be used by

the learned trial judge in charging the jury initially. After the judge’s initial charge, no requisitions were made by the defence on the

aspect of the charge criticised in their grounds of application and submissions. Counsel for the prosecution did requisition the court in

relation to the s. 29(2) defence. In response to counsel for the prosecution’s requisition on this point, counsel for the applicant did

not raise any issue as to whether or not the court needed to recharge the jury on the burden of proof which arises for the

prosecution when countering a defence raised under s. 29(2) of the Act of 1977. The learned trial judge recharged the jury on the

relevant point as follows:

“In relation to the factual possession, the prosecution has to prove beyond reasonable doubt, one, that the accused had

a packet in his control or container, that the package contained something, and they also have to prove what was

contained in the package was controlled drugs. The prosecution must further prove the appropriate mens rea or

criminal intent, that the accused knowingly possessed the container and in doing so knew it contained something and

that the accused either knew in this case that it contained a controlled drug or had reasonable grounds for

suspecting that the thing in the container was a controlled drug.” (Emphasis added).

On the point of the failure of counsel for the applicant to raise a requisition in relation to s. 29(2), this Court respectfully adheres to

the well established view of the courts in this jurisdiction that a failure to raise a requisition on a particular issue may prevent the

accused from subsequently arguing on appeal that the trial judge misdirected the jury on the issue. In the case of D.P.P. v. Cronin

[2006] 3 IR 213, Kearns J. in the Supreme Court, drew on the dicta of Keane C.J. in D.P.P. v. Sweetman (Unreported, ex tempore,

23rd October, 2000), as follows:-

“it is the duty of counsel for the prosecution or the defence to draw the attention of the trial judge to any aspects of his

charge which require reconsideration on his part so as to give him an opportunity of putting any matter right before the

jury reach their verdict”.

Further, in the case of D.P.P. v. Noonan [1998] 2 I.R. 439 at p. 445, Geoghegan J. in the Court of Criminal Appeal commented as

follows:-

“There is absolutely no doubt that this Court can refuse to entertain an objection to a judge's charge where that objection did

not form the subject matter of a requisition. But it does depend on the particular circumstances of the case whether this Court

takes that course or not”.

This Court is of the view that this is not a case where there are such particular circumstances that allow the accused to seek to rely

upon this ground of appeal in circumstances where no requisitions were made on this point at the trial. It is clear in this case that

counsel for the accused specifically discussed the defence in s. 29(2) with counsel for the prosecution. Neither after the initial

charge, or after the recharge, or at the end of the case as a whole, was any exception taken to the terms of the recharge. This

Court is of the view that the phraseology used in the trial judge’s recharge was used after discussion, consideration and agreement as

to what the trial judge, having been advised by counsel, should say. In the absence of any further requisition or expression of

concern from counsel, it would seem to this Court that the learned trial judge satisfactorily resolved the anxiety of counsel and

properly directed the jury. Despite this, however, this Court will proceed to consider the judge’s charge and whether it was correct in

law.

The judge’s recharge to the jury was correct in law in relation to the evidentiary burden of proof and it reaffirmed that the onus of

proof remained on the prosecution to prove its case beyond reasonable doubt to the jury. This is clear because the judge both relied

expressly on the wording of s. 29(2) in the recharge, as is evident from reading the highlighted portion of the extract from the

recharge above, while also expressly charging the jury that the onus of proof remained on the prosecution throughout. The learned

trial judge expressly charged the jury that “the prosecution must further prove … that the accused either knew” in this case that the

package contained a controlled drug or “had reasonable grounds for suspecting” that the contents of the package in the container

included a controlled drug.

On this review of what the learned trial judge said to the jury, the overall effect is that the learned trial judge did sufficiently explain

the legal position to the jury so that the jury were properly charged in relation to the defence under s. 29(2), and accordingly, the

application made on behalf of the applicant must be refused.