Court of Criminal Appeal refuses leave to appeal conviction for drug offences after trial judge clarified burden of proof.

COURT OF CRIMINAL APPEAL

CCA 289/10

Finnegan J.

Hanna J.

O’Keeffe J.

BETWEEN

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

.V.

SOPHIE MALRIC

APPLICANT

Judgment of Mr Justice Finnegan delivered on the 24th day of November 2011

The applicant was charged with and following trial convicted of four offences as follows:-

Count No. 1 Statement of Offence

Possession of a controlled drug for the purposes of selling or otherwise supplying it to another, contrary to section

15 and section 27 (as amended by section 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

Particulars of Offence.

On the 18th day of December 2009 at Dublin Airport in the County of the City of Dublin had unlawfully in her

possession a controlled drug to wit cocaine for the purposes of selling or otherwise supplying it to another in

contravention of the Misuse of Drugs Regulations 1988 and 1993 made under section 5 of the Misuse of Drugs Act

1977.

Count No. 2. Statement of offence

Unlawful importation of a controlled drug, contrary to section 21(2) and section 27 (as amended by section 6 of the

Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

Particulars of Offence.

On the 18th day of December 2009 at Dublin Airport in the County of the City of Dublin she unlawfully imported a

controlled drug, to wit, cocaine in contravention of Regulation 4(1)(c) of the Misuse of Drugs Regulations 1988 and

1993.

Count No. 3. Statement of offence

Unlawful possession of a controlled drug, contrary to section 3 and section 27 (as amended by section 6 of the

Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

Particulars of offence.

On the 18th day of December 2009 at Dublin Airport in the County of the City of Dublin had unlawfully in her

possession a controlled drug to wit cocaine.

Count No. 4. Statement of Offence.

Unlawful possession of a controlled drug while the value amounted to €13,000 or more contrary to section 15A (as

inserted by section 4 of the Criminal Justice Act 1999) and section 27(as amended by section 5 of the Criminal

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

Particulars of offence.

On the 18th day of December 2009 at Dublin Airport in the County of the City of Dublin had in her possession a

controlled drug to wit cocaine for the purpose of selling or otherwise supplying it to another in contravention of the

Misuse of Drugs Regulations 1988 and 1993 made under section 5 of the Misuse of Drugs Act 1977 and at the time

when the cocaine was in her possession the market value of the controlled drug amounted to €13,000 or more.

On Count No. 2 and Count No. 4 she was sentenced to a term of imprisonment of ten years to run concurrently and to date from the

18th December 2009. Count No 1 and Count No. 3 were taken into consideration.

The applicant appeals against her conviction on a single ground as follows:-

“1. The learned trial judge erred in charging the jury in failing to direct the jury with sufficient clarity as to the applicable

principles attaching to the assessment of the state of knowledge of the applicant pursuant to the provision in section

29(2) of the Misuse of Drugs Act 1977 as amended and in particular with regard to the burden of proof and the provision

in respect of having ‘no reasonable grounds for suspecting that what she had in her possession was a controlled drug.”

Counsel for the applicant at the trial accepted every matter of which proof is required of the prosecution save the single question of

guilty knowledge.

The circumstances of the offence were as follows. On the 18th December 2009, acting on information, the applicant was interviewed

at Dublin Airport by a Customs Officer. She was requested to put her suitcase through an X-ray machine and the image showed an

inconsistency. The applicant accepted that the suitcase was hers and that she had packed it herself. She named the hotel at which

she intended to stay and said that it had been booked for her by a friend. Her flight had also been booked for her by that friend. A

swab taken of the suitcase indicated the presence of cocaine. She could not explain the presence of cocaine. She said that the

suitcase had been in her possession at all times and that she did not take cocaine. The applicant made a statement to the Customs

Officers. She had been in Senegal and Gambia, with a friend Mike who introduced her to his friends Isif and Abdullah. Mike left Senegal

two or three days before the applicant and she was to meet him in Dublin. Isif gave her a bag to carry. She flew from Senegal to

Lisbon and from Lisbon to Dublin. There were two packages containing the drugs in the base of the suitcase.

Ms M.S. Herlihy, a Customs Officer involved, was cross-examined. She accepted that the drugs were concealed in the base of the

suitcase. Mr S. Daly the Customs Officer who removed the drugs from the suitcase gave evidence that he did so by cutting open the

back of the suitcase and extracting the drugs. Notes of the interview with the applicant were prepared and she signed them. Garda

Ledwith gave evidence of arrest and of the quantity of the drugs, 3.16 kg. The applicant was interviewed by the Gardai and the

interview was read into evidence. In the course of interview she said that she was supposed to bring gold dust to Ireland and not

cocaine. She had met the people about a week earlier. She met a Gambian girl with a German man who knew she had no money and

they gave her €50.00 and offered to look after her. They explained to her that “these people” would pay for her ticket, pay her

expenses and give her €2,500.00 plus pocket money to bring a suitcase to Europe. They arranged for her to meet with these people

in Gambia. Her friend Mike explained everything to her. She was told that it was gold dust and was told by another lady that she had

made the trip once and had no problem and had got money for her family. It was not possible for her to see what was in the suitcase.

In the course of the interview she said:-

“I knew that this was illegal, bringing gold from Africa, I did not think it was a big deal.”

She was fully co-operative.

The value of the drugs was agreed at €210,119.00. In evidence she said it did not occur to her that the luggage contained drugs and

at all times believed it contained gold. She was dealing with persons she considered friends and she trusted them. She accepted that

she did not mention to the Customs Officers her belief that the luggage contained gold dust and that she first mentioned it at

interview by the Gardai. She accepted that what she said to Customs Officers about meeting people in a bar was untrue. In fact she

met them in a hotel room.

Misuse of Drugs Act 1977

Section 29 of the Act as amended provides as follows:-

“29(1) In any proceedings for an offence under this Act or an offence under section 34 of the Criminal Justice Act 1994 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, or a forged

prescription or a duly issued prescription altered with intent to deceive, 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 such a prescription, as may be

appropriate, or,

(ii) that he was in possession of a controlled drug or such a prescription as may be appropriate, or

(b) he believed that 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 time have been committing an

offence under this Act or,

(c) knowing or suspecting it to be such a drug or prescription, he took or retained possession of it for the purpose

of –

(i) preventing another from committing or continuing to commit an offence in relation to the drug or

document, as may be appropriate, or

(ii) delivering it into the custody of a person lawfully entitled to take custody of it, and that as soon as

practicable he took all such steps as are reasonably open to him to destroy the drug or document or to

deliver it into the custody of such a person.

(3) In any proceedings for an offence under section 15 or 15A of this Act a defendant may rebut the presumption raised

by subsection (2) of the applicable section by showing that at the time of the alleged offence he was, by virtue of

Regulations made under section 4 of this Act, lawfully in possession of the controlled drug to which the proceedings

relate.

(4) In any proceedings for an offence under section 19 of this Act it shall be a defence to show that the defendant took

steps to prevent the occurrence or continuance of the activity or contravention to which the alleged offence relates and

that, in the particular circumstances, the steps were taken as soon as practicable and were reasonable.

(5) In any proceedings for an offence under sections 16, 17 or 21(2) of this Act, it shall be a defence for the defendant

to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the

prosecutor which it is necessary for the prosecutor to prove if he is to be convicted of the offence charged.

(6) In any proceedings for an attempt to commit an offence under this Act the defences mentioned in subsection (2) or

(5) of this section shall, with the necessary modifications, be open to the defendant.

(7) Subject to subsection (1) of this section nothing in this section shall prevent a person raising a defence which, apart

from this section, would be open to him to raise in proceedings for an offence under this Act.”

Section 15A of the Act in subsection (2) provides as follows:-

“(2) Subject to section 29(3) of this Act (as amended by section 6 of the Criminal Justice Act 1999), in any proceedings

for an offence under this section, where –

it is proved that a person was in possession of a controlled drug, and

the court, having regard to the quantity of the controlled drug which the person possessed or to such other matter

as the court considers relevant, is satisfied that it is reasonable to assume that the controlled drug was not

intended for his immediate personal use,

he shall be presumed, until the court is satisfied to the contrary, to have been in possession of the controlled drug for the

purpose of selling or otherwise supplying it to another in contravention of regulations under section 5 of this Act.”

The Applicant’s submissions

The defence in section 29(2) raises particular difficulty for juries and requires clear directions on the burden and standard of proof. In

The Criminal Process, O’Malley, the author at para.4.26 has this to say:-

“The necessity for a clear direction on the burden and standard of proof in a judge’s charge to a jury is now so well

established as to be in need of little elaboration. Suffice it to say that it is difficult to think of circumstances in which the

verdict of guilty might be treated as either safe or satisfactory if it was returned by a jury who had not been clearly

instructed in this regard…”

The prosecutor and the court should have adverted to the precise meaning and implications of section 29(2) at the outset of the

case and should have clarified the exceptional nature of the evidential requirement on an accused. The prosecution in opening dealt

with the onus of proof, knowledge, possession, recklessness and reasonable doubt in a manner entirely appropriate to a standard trial.

The specific defence provided for in section 29(2) was not appropriately dealt with. The manner in which it was dealt with must have

left the jury confused. The prosecution dealt with the defence in opening as follows:-

“Now, in our criminal system, in our jurisdiction, the onus in each case rests with the prosecution. He who accuses must

prove. Now, there is a slight exception in this particular case in the instance that, because you have heard the indictment

read over to you, and I will come back to you in due course, is that the value of the drugs is over €13,000. The drug that

was seized was cocaine, and I have to prove those to your satisfaction but to prove the mens rea or the knowledge in

respect of it is a mater which sometimes the defence takes on board. How they deal with it is a matter for themselves,

but the normal mill – the normal run of course is that there is no onus on a defence or on a defendant to assist the

prosecution in proving their case.

Ms Malric comes before the court with the presumption of innocence, that means that she is presumed to be innocent of

all these allegations, the four counts set out in the indictment, or until you decide otherwise, until you decide that I have

proved my case to the required satisfaction that she did have knowledge of – first of all, she did have possession of the

drugs on the date in question, they were in her luggage, and she also had knowledge that the substance recovered was

in fact cocaine.”

While the prosecution dealt with the criminal standard and the civil standard of proof it did not in opening deal with the peculiar

evidential requirements on an accused in section 29(2). No distinction was drawn between “beyond a reasonable doubt” and the

burden on the prosecution to eliminate the same and the reasonable doubt that an accused must raise if relying on section 29(2).

Counsel for the prosecution returned to the concept of reasonable doubt in closing but did not deal with it in the context of section

29(2) but dealt with the concept in general terms only.

In closing counsel for the applicant dealt with the onus on an accused as follows:-

“So if there were nothing more in the case Mr Colgan is probably right to suggest that the prosecution then has done his

job. Where he may stray into perhaps something I would criticise is in suggesting that the onus on the defendant was to

prove to you that she did not know about the drugs. Now, that is what she is endeavouring to do, she has given her

evidence and you can assess that but to say that is actually not correct…(The law) means that they don’t have to do

that but it means when it is raised as a defence you still apply the same standard and burden, that is the burden must

still rest with the prosecution, and the standard is still beyond a reasonable doubt which means that once the defence is

raised and you have had it exposed to you through evidence and through to the memo in the Garda Station, if you feel it

might be true, and he did say this initially, even if you think, ‘I am not sure I am buying it completely but that might be

right, you can’t just exclude it, its possibly right’, if you remain of that thinking, you must acquit the accused. So, she

does not have to prove in such a way that you buy into everything that has been said.”

The learned trial judge explained section 29(2) in his charge as follows:-

“So, where the prosecution proves beyond a reasonable doubt the possession by the accused of a controlled drug and by

possession I mean the physical and mental element of possession, then one of two things happen. Either the accused is

found guilty or she avails herself of the defence provided for by section 29, in which case the burden shifts to her. She

must prove that the mental element, the guilty knowledge or the mens rea of possession of a controlled drug did not exist

at the material time…The accused, therefore, then must prove that she did not know and had no reasonable grounds for

suspecting that what she had was a controlled drug. Now, there are two elements to that. There is (a) that she did know

and (b) had no reasonable grounds for suspecting. Its not did not know or it is did not know and. So, how does an

accused person prove these contentions? Well, it may be done by pointing to a weakness in the prosecution case or, as

in this instance by giving evidence herself. What she is to do is to give sufficient evidence to demonstrate a doubt that

she did not know and had no reasonable grounds for suspecting that what she had in her possession was a control drug.

That doubt must be, as the phrase goes a reasonable doubt. That burden cast upon the accused is discharged if her

defence, her evidence proves a reasonable doubt and no more than that on the issue. The prosecution still have the

burden of negativing the defence raised by the accused.”

Later the learned trial judge continued:-

“The fact that the accused person then gives evidence does not mean that her assertion in her evidence refutes the

prosecution case. Her evidence is part of the general corpus of evidence which you have to consider and in determining if

she has by her evidence discharged the burden of proof which she assumed.”

The jury had been told that there were only two standards of proof the civil and criminal and that the latter was the relevant

standard – beyond a reasonable doubt.

After a period of deliberation the jury returned with two questions which exemplified the absence of clarity in their minds, and sought

an explanation of recklessness in relation to section 29(2). The learned trial judge furnished an explanation and recharged the jury a

second time on recklessness and on section 29(2). The learned trial judge having read over the section to the jury dealt with section

29(2) as follows:-

“It shall be a defence to prove. Well, proof, I think you should read down prove in that context and you should read those

words as if proof were if she were to give sufficient evidence that she did know and had no reasonable grounds for

suspecting that what she had in her possession was a control drug. Proof could be slightly onerous, but all she has to do

is she has to raise sufficient evidence that she did not know and had no reasonable grounds for suspecting that what she

had was a control drug.”

Counsel for the applicant was unhappy with the words “prove by sufficient evidence”. In consequence the learned trial judge

readdressed the jury and having recited section 29(2) again continued as follows:-

“The words ‘to prove’ should be read as if they were give sufficient evidence and the standard of evidence there is

sufficient to establish a reasonable doubt in you the juries mind, not in her, in you the juries mind. If her evidence then in

those circumstances she would – if she – her evidence raises a doubt in your mind, then she is entitled to the benefit of

that doubt, alright?”

Following submissions from the applicant’s counsel the learned trial judge again addressed the jury on section 29 as follows:-

“I mention that the words ‘to prove’ as having the meaning of ‘to give sufficient evidence’, sufficient to establish a

reasonable doubt in you the juries mind, that she is entitled to the benefit of that doubt. I should, of course, add that if

she does not establish that reasonable doubt in your mind she has not succeeded in establishing the statutory defence

which section 29 affords her.”

The applicant submits that the overall effect was to leave the jury under the misapprehension of a legal burden being placed on the

accused to raise evidence to disprove guilty knowledge. The reference to “sufficient evidence” created the impression of an obligation

to produce evidence as opposed to merely raise an issue. A reasonable doubt may be created on the evidence given by the

prosecution. In D.P.P. v Smyth & Another [2010] I.E. C.C.A. 34 the court referred to the distinction to be drawn between the

prosecution requirements and those of the defence in relation to section 29(2):-

“At a criminal trial, the burden of proof is borne by the prosecution in respect of every issue; except on those issues on

which the burden of proof is cast on the accused by statute. The burden is not to be confused with the burden of

adducing evidence.”

In Sheldrake v D.P.P. [2004] 2 W.L.R. 976 at 981 Lord Bingham said:-

“An evidential burden is not a burden of proof. It is a burden of raising, on the evidence in the case an issue as to the

matter in question for consideration by the tribunal of fact.”

The applicant submits that the language used by the court in explaining section 29(2) while sufficient in dealing with the principle

before a court of appeal is insufficient when dealing with a jury in the court of trial.

The applicant relies on the following passage from the judgment in Smyth:

“The court considers that an evidential burden of proof is cast on the accused by section 29 of the Misuse of Drugs Act

1977, as amended, which is discharged when the accused proves the existence of reasonable doubt that he did not

know, and had no reasonable ground for suspecting, that what he had in his possession was a controlled drug. This is not

a burden merely of adducing evidence. It is a legal burden discharged on the low standard of proof, namely that of

proving a reasonable doubt…A burden is then cast on the accused to make out a reasonable doubt in accordance with

section 29. This may be done by pointing to a weakness in the prosecution case, by referring to a statement made to the

Gardai, or by the accused himself giving evidence.”

A trial judge must clearly state to the jury that the burden cast on the accused is discharged if the defence prove a reasonable

doubt, and no more than that on the issue. It is submitted that this was not done with sufficient clarity in the applicant’s trial.

The learned trial judge’s explanation of the concept of recklessness was inadequate. This is exemplified by the jury raising a question

in relation to the same. The explanation given by the learned trial judge did not clarify recklessness notwithstanding three attempts to

do so.

The Respondent’s Submissions

The respondent submits that the learned trial judge explained the import of section 29(2) in accordance with the interpretation

thereof in D.P.P. v Smyth & Another. The learned trial judge’s exposition of the law was correct. There is nothing in the learned trial

judge’s charge, his response to requisitions or in his responses to the jury’s questions which could have led the jury to believe that

the applicant bore an onus of proof to the standard of beyond reasonable doubt. The learned trial judge made it clear that all that

was required of the applicant was to raise reasonable doubt in relation to her guilty knowledge.

In D.P.P. v Smyth & Another the trial judge had suggested that there was a burden on the accused to prove beyond reasonable doubt

that he did not know that he was in possession of drugs. An accused person carries no such burden either to the civil standard or the

criminal standard. Once possession is established in evidence an evidential burden shifts to the accused and this merely requires an

accused to engage with the evidence to the point of raising a reasonable doubt as to the mens rea aspect of possession,.

The learned trial judge when requisitioned readdressed the jury and clearly and correctly stated the law to them.

Insofar as it is suggested that the learned trial judge’s exposition of the meaning of recklessness is criticised it is submitted that the

explanation given was correct, clear and helpful to the jury.

Discussion

In his address to the jury the learned trial judge carefully explained the presumption of innocence, the onus of proof and the burden

of proof. Thus the onus of proving each element of the crime remains with the prosecution and never shifts. An accused person need

not prove or disprove anything. The standard of proof is beyond a reasonable doubt. He explained that in the event that there are

two interpretations open on the evidence, one consistent with guilt and the other with innocence, that consistent with innocence

must be preferred provided the innocent version might reasonably be true and absent proof beyond a reasonable doubt to the

contrary. He carefully explained that an accused person had the option of testing the prosecution case or of giving evidence. Thus

the learned trail judge gave the ordinary directions as to the presumption of innocence, the burden of proof and the standard of proof

in accordance with the decision of this court in Smyth. Following discussion with counsel in relation to the judgment in Smyth the

learned trial judge again dealt with the presumption of innocence, the onus of proof and the standard of proof. Again he dealt with

section 29(2). At this point he said:-

“So, where the prosecution proves beyond a reasonable doubt the possession by the accused of a controlled drug, and

by possession I mean the physical and mental element of possession, then one of two things happens. Either the accused

is found guilty or she avails herself of the defence provided for by section 29 in which case the burden shifts to her. She

must prove that the mental element, the guilty knowledge or the mens rea, of possession of a controlled drug did not

exist at the material time.”

However he went on to explain what he meant by the burden shifting:-

“What she is to do is to give sufficient evidence to demonstrate a doubt that she did not know and had no reasonable

grounds for suspecting that what she had in her possession was a controlled drug. What she is to do is to give sufficient

evidence to demonstrate a doubt that she did not know and had no reasonable grounds for suspecting that what she had

in her possession was a controlled drug. That doubt must be, as the phrase goes, a reasonable doubt. The burden cast

upon the accused is discharged if her defence, her evidence proves a reasonable doubt and no more than that on the

issue. The prosecution still have the burden of negativing the defence raised by the accused.”

In this passage the learned trial judge dealt with the issue and terms of the applicant giving “sufficient evidence”. It was appropriate

to do as it was the evidence of the applicant that was relied upon by the applicant to establish a reasonable doubt.

While the reference to the burden shifting to an accused and the obligation on the accused to prove the absence of the necessary

mental elements to constitute the offence without more would leave a jury under the misapprehension of a burden resting on an

accused, in the present case the learned trial judge expanded upon the meaning and nature of that burden – to establish a

reasonable doubt. In response to a requisition from the applicant’s counsel he made it quite clear that in this case if the evidence of

the applicant raised a doubt in their mind then she is entitled to the benefit of the doubt. In a further address to the jury he made it

quite clear that the burden, in the circumstances of this case where the applicant’s evidence was relied upon, was to give evidence

which raised a reasonable doubt and if she did this she was entitled to be acquitted. The learned trial judge having clarified the

burden which rested upon the applicant no objection was raised by counsel to the adequacy of the explanation.

The court does not accept that the manner in which the trial proceeded was such as to cause confusion in the minds of the jury. In

opening the case counsel for the prosecution gave no detailed explanation of section 29(2). It was quite correct that he so

proceeded. Only when an issue was raised in the course of the trial, whether in cross-examination or by the applicant giving

evidence, did it become necessary to consider the statutory defence. While the initial exposition by the learned trial judge of the

nature of the burden resting upon the applicant was not sufficiently clear in his further explanations to the jury the nature of the

burden was indeed made clear. It was made clear, evidently, to the satisfaction of counsel for the applicant as no further requisition

was raised and no further clarification was sought. It is noteworthy that the learned trial judge showed a willingness to recharge the

jury on any issue raised by counsel for the applicant. Experienced counsel, however, saw no need to ask the judge to expand upon or

amend the explanation which he gave to the jury. The court is satisfied that any lack of clarity in the original charge was

appropriately rectified by the learned trial judge in dealing with defence counsel’s requisitions to counsel’s satisfaction.

While on the appeal an issue arose as to the adequacy of the explanation of the meaning of recklessness the court is satisfied that

this is without foundation. The learned trial judge made abundantly clear the subjective nature of the test to be applied and, insofar

as issues were raised before the learned trial judge, he dealt with the same on two occasions when he subsequently addressed the

jury and did so to the satisfaction of counsel for the applicant who raised no further requisition in relation to the same.

Disposition

The court is satisfied that the learned trial judge adequately and appropriately rectified any lack of clarity which might have arisen

out of his charge in dealing with the requisitions raised by counsel to the applicant’s satisfaction. The jury could be in no doubt that if

on the evidence and particularly the evidence of the applicant which is what was relied on, a reasonable doubt as to whether the

prosecution had established the necessary mental element in the offences existed they were obliged to acquit.

Accordingly the applicant is refused leave to appeal her conviction.

DPP v Malric