The Director of Public Prosecutions (complainant) v Gerry Buckley (defendant)
Criminal law - Case stated - Charge of possession of cannabis - Absence of a certificate of analysis of substance found - Whether admission that substance recovered was cannabis was sufficient evidence to enable a safe conviction - Duty of the trial judge where there is an application for a direction - Courts (Supplemental Provisions) Act, 1961 s. 52(1) - Misuse of Drugs Act, 1977 s. 3 and s. 27 - Misuse of Drugs Act, 1984 s.6
The High Court (Mr Justice Charleton); judgment delivered May 8th, 2007.
In considering, at the close of the complainant's case, whether sufficient evidence has been adduced to allow the case to proceed to the defence stage, or to submissions, a trial judge should be concerned to see whether the proofs necessary to make out a charge have been adduced in evidence. At that stage the trial judge is not concerned with issues of credibility or with sufficiency of proof but with the technical nature of the elements of the offence and whether these have been reflected in evidence by proof. A piece of direct evidence should never be divorced from its factual background. Instead, it should be considered in light of all the other relevant evidence in the case. In considering an application for a direction the court should not weigh the evidence, but simply consider whether it is present or not. When the complainant adduces evidence only of an admission, the issue for the judge, at the direction stage, is whether the circumstances show that the accused can be relied on to have sufficient knowledge to allow that admission to be safely relied on.
The High Court so held in answering the case stated in the affirmative.
Paul Anthony McDermott, BL, for the complainant; John Edwards, SC, with John Devlin, BL, for the defendant.
Mr Justice Charleton opened his judgment by setting out the factual background to the case. The defendant came before the District Court in Cork, charged with one offence which alleged that, on January 31st, 2005, at Holyhill, in the city of Cork, he had cannabis resin in his possession, contrary to sections 3 and 27 of the 1977 Act as amended. At the close of the complainant's case, in the District Court, the defendant's solicitor submitted that there was no case for the defendant to answer because, the complainant had failed to adduce into evidence, a certificate of analysis that the substance found on the defendant was cannabis. As a result of this submission, the learned District Court judge referred a question for the opinion of the High Court in the following terms:
"Whether the defendants' admission that the substance recovered from his pocket was cannabis is sufficient evidence that it was such . . . in the absence of a certificate of analysis from the Garda Forensic Science Laboratory confirming that the substance was in fact cannabis."
In deciding on the pertinence of this question, Mr Justice Charleton considered a number of other facts raised in the case. The defendant was stopped on the street, on May 26th, 2005, in the Ardcullen area of Holyhill in Cork, by two members of the Garda Síochána. The defendant was then searched and a small quantity of a brown substance was found, believed to be cannabis, in the defendant's back trouser pocket. The substance was then shown to the defendant and he was cautioned that he was not obliged to say anything. The defendant was then invited to the Garda station for the purpose of a thorough search, and, when he declined, he was arrested under section 23 of the 1977 Act, as amended.
After having been checked into the Garda station, a further search took place. The gardaí then found a knife in one the defendant's pockets, an item that was described as a "hash pipe" and a balaclava. After being cautioned, the defendant admitted that the brown substance was cannabis and added that it was for his own use. He also admitted ownership of the balaclava, the knife and the pipe. The defendant was then released from custody but the relevant items were kept for the purpose of a prosecution. The gardaí then sent the cannabis for analysis to the forensic laboratory, however, it never arrived back.
Mr Justice Charleton was satisfied that the question asked by the District Court judge was a sensible one. In an effort to answer this question, Mr Justice Charleton considered the other relevant facts raised by the District Court judge, and the appropriate law to be applied in such cases. The first point of note concerned the relationship between the District Court and the High Court in relation to a consultative case stated. Mr Justice Charleton noted the similarity between this relationship and that of a consultative case stated as between the Circuit Court and the Supreme Court. In this regard, Mr Justice Charleton cited with approval the dicta of the then Chief Justice, Mr Justice Finlay, in Dublin Corporation v Ashley IR 781 in which it was held that
"the purpose and effect of a consultative case stated by a Circuit Court judge to the Supreme Court is to enable him to obtain the advice and opinion of the Supreme Court so as to assist him in reaching a correct legal decision. Having regard to that purpose and relationship which exists between the two courts, it would, in my view, be quite inappropriate for the Supreme Court, for any reason of procedure, to abstain from expressing a view on an issue of law which may determine the result of the case before the learned Circuit Court judge".
Mr Justice Charleton remarked that it followed from that judgment that, for the purpose of assisting the District Court, the High Court must look at the whole of the case stated, and give advice on the basis of the issue on which the District Court judge requires guidance.
Furthermore, the question asked may be reformulated and an answer given in light of the whole of the case stated provided that this does not exceed the facts as found by the learned trial judge. Mr Justice Charleton accepted that a trial judge has an obligation to have regard to the relevant evidence, since the purpose of the criminal trial is to inquire as to whether the complainant has adduced sufficient evidence to prove beyond all reasonable doubt that the accused committed the crime. It was further noted that in the instant case, it had been argued that the public interest requires the acquittal of the innocent and, where the prosecution have discharged the burden and standard of proof, the conviction of the guilty.
Mr Justice Charleton stated that the issue before the trial judge at direction stage, on the close of the prosecution case, whether he or she is sitting with a jury or is the sole tribunal of fact, is whether the complainant has adduced sufficient evidence, which might enable a safe conviction to occur, on a full consideration of that evidence by the tribunal of fact. In The People (The Director of Public Prosecutions) v O'Shea ILRM 592, Finlay P. said at p. 594 that
"one of the functions of trial judge in a criminal trial is to reach a decision at the conclusion of the evidence tendered on behalf of the prosecution as to whether there is evidence which if accepted by a jury could as a matter of law lead to a conviction. This may frequently occur in practice in cases where there is a gap in the evidence tendered on behalf of the prosecution and where some vital link in the chain of proof is missing. It also arises, in my view, however, and not infrequently, in cases where an apparent link in the chain of proof is so tenuous that it would clearly be perverse for a jury properly directed as to the onus of proof upon the prosecution to act upon it".
The test to be applied, therefore, revolves around whether the tribunal of fact, be it a judge or a jury, on full consideration and having heard submissions from both sides, could properly convict on the evidence. Mr Justice Charlton said that where such evidence is absent, the trial judge is under a duty to stop the trial. The trial judge must bear in mind, however, that it is a fundamental duty of the jury, or the trial judge as tribunal of fact, to decide facts and, in that regard, to apply reason and commonsense to the evidence. It is their task to weigh the importance of the individual pieces of evidence in determining the issue as to whether the prosecution has discharged the burden and standard of proof. It is not the function of the trial judge at direction stage to weigh the evidence. His or her function, at that stage, is to see whether the requisite proofs to establish the case have been adduced in evidence, bearing in mind that there can be cases where an apparent link in the chain of proof is so tenuous that it would clearly be perverse for a properly directed jury to act upon it. Mr Justice Charleton stated that this approach was in accordance with the law as set out in England in R v Galbraith 1 WLR 1039 where at p. 1042, Lord Lane C.J. gave the following description as to the duty of a trial judge where there has been an application for a direction:
"How then should the judge approach the submission of 'no case'?
"If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will stop the case.
"The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
"Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
"Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."
Mr Justice Charlton said that issues of credibility are not part of a trial judge's function at the direction stage of a criminal trial. Issues as to the absence of evidence clearly are. The instant case was a good example of that principle.
Turning to consider the question that had been posed by the District Court judge, Mr Justice Charleton said that the 1977 Act did not allow for the proof of the presence of the controlled drug, an essential element of the charge, by any other means than the calling of oral evidence. This meant that for seven years prior to the implementation of the 1984 Act a forensic scientist had to be called in evidence to give the results of the analysis of the substance in question. Section 10 of the 1984 Act now allows the result of such a test to be given in evidence by means of a certificate signed by an officer of the forensic science laboratory. Such a certificate can specify, as a result of testing or analysis that a substance proved to be a certain controlled drug. It would also be proper to prove by certificate the percentage purity of such drug and, if necessary, to identify any impurities and their percentage presence in the substance. The section does not allow evidence to be given by certificate as to such matters as the medicinal dosage for such a drug or the usual quantities in which such drugs are sold at street level. That is a matter for expert evidence gleaned by experience, not analysis, and therefore does not come within the scope of the section. Section 10 therefore should only be used in relation to charges of simple possession. Mr Justice Charleton said that the existence of a controlled drug may also be proved by an admission by the accused to that effect; R v Chatwood 1 WLR 874. Such an admission will be given more weight where the accused is experienced in using or dealing with the drug; The State v Babatunde (1982)(1) NCR 243. Mr Justice Charleton noted that a court of first instance in England has, however, held that an analysis report should always be produced in drug prosecution cases; R v Lang and Evans Crim. LR 286.
Mr Justice Charleton said that the issue in the case of Bird v Adams Crim LR 174 was whether an admission of possession of LSD by the accused, made after caution, and to the effect that he had supplied the drug to five or six people, was sufficient evidence. The High Court, on a case stated, following the conviction of the accused advised as follows:
"There are many instances where an admission made by a defendant on a matter of law in respect of which he was not an expert was really no admission at all eg, a defendant could not know in a bigamy case whether a foreign marriage was valid, and there were cases where an admission of fact was valueless because the circumstances were such that a defendant could not possibly have the necessary knowledge, but here the defendant admitted that he had in his possession a dangerous drug and had been peddling it. The defendant certainly had sufficient knowledge of the circumstances of his conduct to make his admission at least prima facie evidence of its truth which was all that was required at this stage in the proceedings when the submission of no case to answer was made and accordingly, the justices, had correctly ruled that there was no case to answer."
Mr Justice Charleton said that in the case of R v Chatwood the only evidence against the accused men was that they had admitted after caution that they had been injecting themselves with heroin. By that stage the evidence was, for that reason, missing. One of the accused persons went into evidence that he had been injecting himself with flour. On appeal, the Court of Criminal Appeal, in applying the dicta in Bird v Adams, held that
"it is apparent that the statements of the accused in this case, either orally to the police officer or when reduced in writing, was sufficient to provide prima facie evidence of the nature of the substance which had been in their possession . . . and the fact that he was found guilty by the jury indicates quite clearly that the jury disbelieved his explanation that it was flour and believed his earlier statement to the police that he knew it was heroin. The court is of the view that the statements of the accused provide, having regard to the circumstances of this case, prima facie evidence of the identity of the substance."
Mr Justice Charleton concluded his review of the case law in this area with reference to the case of the City of Sunderland v Dawson EWHC 2796, in which the issue was whether a charge of selling alcohol to an underage person was made out. The defence submission at the close of the prosecution case was that there had been no proof that the bottle sold in the off-licence to the child contained anything other than coloured water and consequently that there was a fatal absence of a certificate of analysis to show that it was alcohol. Thomas LJ stated:
"The analogy of requiring an analysis for controlled drugs taken, as appears from the case stated, was manifestly absurd. It is, of course, true that courts do have evidence of analysis of drugs such as cannabis, cocaine or heroin. They are not sold as labelled products and, unless there is an admission as to the substance, it is often necessary to prove what it is."
Having considered all of the relevant case law, Mr Justice Charleton stated that in considering, at the close of the prosecution's case, whether sufficient evidence has been adduced to allow the case to proceed to the defence case, or to submissions, a trial judge should be concerned to see whether the proofs necessary to make out a charge have been adduced in evidence. At that stage the trial judge is not concerned with issues of credibility or with sufficiency of proof but with the technical nature of the elements of the offence and whether these have been reflected in evidence by proof. There can be exceptional cases where the nature of a necessary proof is found to be so tenuous that a trial judge would be compelled to make a conclusion that any consequent conviction would be unsafe. In those very rare cases the issue as to conviction might be withdrawn from the jury, or from the judge acting as the tribunal of fact. Mr Justice Charleton said that cases proceed on the basis of direct evidence and circumstantial evidence. In the instant case there was both. The admission by the accused that he was in possession of cannabis constituted an admission against interest and was therefore admissible against him. A piece of direct evidence should never be divorced from its factual background. Instead, it should be considered in light of all the other relevant evidence in the case. The possession of a pipe and a knife could therefore be weighed with the admission to provide it with context.
Mr Justice Charleton said that, in considering an application for a direction the court should not weigh the evidence but simply consider whether it is present or not. The admission, in this context, seemed to Mr Justice Charleton to be no different to a statement by someone who is familiar with the qualities of an item in question.
If, therefore, on the charge of serving alcohol after hours in a licensed premises, the smell and appearance of beer and wine before customers can, in the ordinary knowledge of people in the community, provide sufficient evidence that alcohol, as opposed to lime cordial or cranberry juice, was being served. The qualities of cannabis are not now so unusual as to put it in a different category so that expert evidence of its presence is always required. An accused who admits a substance is cannabis can be, but not necessarily must be, relied on to know what he is talking about.
Mr Justice Charleton concluded by saying that it should be borne in mind, however, that if the prosecution choose to weaken their case by not adducing a certificate of analysis in circumstances where the nature of the substance is at the core of the charge, that applications to dismiss the charge may be expected, and when the prosecution adduces evidence only of admission, the issue for the judge, at the direction stage, is whether the circumstances show that the accused can be relied on to have sufficient knowledge to allow that admission to be safely relied on.
Mr Justice Charleton added that he would advise that, in all the circumstances of the instant case, that there was sufficient prima facie proof through the admission of the accused, coupled with the pipe and the knife, that the substance in his back trouser pocket was the relevant controlled drug. Therefore, it followed that, when the issue of guilt is being considered, that issue must be tested in the light of the burden and standard of proof in criminal cases.
Solicitors: Chief Prosecuting Solicitor (Dublin) for the complainant; Joseph S. Cuddigan (Cork) for the defendant
Michèle Rayfus, barrister