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Cite as: [2010] IECCA 85

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Judgment Title: D.P.P.-v- Daniel Goulding

Neutral Citation: [2010] IECCA 85


Court of Criminal Appeal Record Number: 93/09

Date of Delivery: 29/07/2010

Court: Court of Criminal Appeal


Composition of Court: Denham J., Budd J., Hanna J.

Judgment by: Denham J.

Status of Judgment: Approved

Judgments by
Result
Denham J.
Refuse leave to appeal against conviction


Outcome: Refuse leave to appeal against conv




THE COURT OF CRIMINAL APPEAL
[C.C.A. No: 93/09]

Denham J.
Budd J.
Hanna J.




Between/
The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent
and


Daniel Goulding

Defendant/Applicant


Judgment of the Court delivered on the 29th day of July, 2010, by Denham J.

1. This is an application by Daniel Goulding, the defendant/applicant, referred to in this judgment as "the applicant", for leave to appeal against conviction.
The applicant was before the Dublin Circuit (Criminal) Court on two counts. Count No.1 was possession of a controlled drug for the purpose of selling or otherwise supplying it to another contrary to s.15 and s.27 of the Misuse of Drugs Act, 1977, as amended. Count No.2 was possession of a controlled drug with a value of €13,000 or more for the purpose of selling or otherwise supplying it to another contrary to s.15A of the Misuse of Drugs Act, 1977, as amended. The applicant was found guilty on the 12th February, 2009. He was sentenced on Count No.2 to ten years imprisonment to date from 11th June, 2007. Count No.1 was taken into consideration.
The grounds for his application for leave to appeal against conviction as filed were:-
      The learned trial judge erred in law in not withholding the case from the jury when the primary witness for the prosecution gave evidence which was contradictory and which rendered any verdict of guilty unreliable and unsafe.
      The learned trial judge erred in law in not withdrawing the case from the jury in circumstances where the prosecution had not proved the fact of possession of the drugs in question to the requisite standard.
      The learned trial judge erred in law in not withdrawing the case from the jury in circumstances where the prosecution ultimately failed to achieve the requisite standard of proof required to ground a verdict of guilty.
In oral submissions counsel for the applicant stated that the application was, in reality, based on two grounds. First, it was submitted that the learned trial judge erred in law in not withholding the case from the jury when it was submitted that possession had not been proved. Reference was made to the cross examination of Mr. Barry. Secondly, and in an ancillary fashion, reference was made to the denial by the applicant on arrest that he had any knowledge of the package. Also, reference was made to the variations in describing the package.
Facts
In summary, the facts were that on the 14th June, 2006, Mr. Michael Barry was travelling towards Mulhuddart in the direction of Clonee at about 11 pm. As he came around a corner he noticed flashing blue lights from a Garda checkpoint. There was other traffic on the road. Traffic came to a stop, queuing to go through the checkpoint. There was a silver car in front of Mr. Barry with two people in it, a driver and a front seat passenger. Mr. Barry stated that at one stage, when the cars had stopped, the passenger door opened a small bit and a package was thrown out. He described the package as the size of a book. The car moved on to the checkpoint and went to the left while he went to the right - there were two gardaí on the checkpoint, one on the right and one on the left. While he was stopped he told Garda Flanagan that a package had been thrown out of the silver car and that the package would be back at the telephone pole.
The Garda had not seen anything unusual or as described. The gardaí held the silver car on getting the information from Mr. Barry. A member of An Garda Síochána walked back and found a package containing cocaine having an approximate value of €70,000, at the location identified by Mr. Barry. The applicant denied all knowledge of the package. The applicant was in the passenger seat of the silver Laguna car. The applicant and the driver were searched with negative results. At the end of the prosecution case, counsel for the applicant applied to have the case withdrawn from the jury on the basis that the prosecution had not proved to the requisite standard that the applicant had thrown the package from the car or had had possession of it.
Counsel for the applicant stressed the submission that the learned trial judge had erred in law in not withdrawing the case from the jury on the ground that possession had not been proved. Counsel brought the Court through the cross examination of Mr. Barry on the 6th February, 2009, day 2 of the trial, and especially to the following on p.17:-
        "Q. And can you recall whether the car had headrests in the back seats?
        A. No, I can't.
        Q. Or headrests on the front seats?
        A. I can't.
        Q. Well, you wouldn't have been able to see into the car from where you were sitting, would you?

        A. No.
        Q. The most you could probably see would be two heads; isn't that so?
        A. That's correct.
        Q. You wouldn't be able to see arms or legs?
        A. No.
        Q. And you didn't see any package visible in the car?
        A. No.
        Q. What you saw, according to your own evidence, is a door opening?
        A. Yes, that's correct.
        Q. And a package being thrown out?
        A. That's correct.
        Q. Well, you also say in your evidence that you saw the passenger throwing the package out?

        A. I saw the passenger door open.
        Q. Right?
        A. Yes.
        Q. You can't be sure if it was the passenger who threw out the package?
        A. I couldn't, no.
        Q. You couldn't?
        A. No.
        Q. It's possible that the passenger might have opened the door and the driver could have thrown what you say was thrown out; isn't that correct?

        A. That's possible.
        Q. And you say that the door opened a small bit?
        A. Yes."
Counsel drew the Court's attention to the applicant's denial that he knew of the package. See 9th February, 2009, day 3, p.7, lines 22-26 where Garda Flanagan stated:-
        A. Yes, just in respect of the two passengers that were in the car, I cautioned Daniel Goulding, as follows: "you are not obliged to say anything unless you wish to do so, but anything you do say will be taken down in writing and may be given in evidence." I then asked him about the package that I had retrieved from the side of the road and immediately he denied any knowledge of it.

Also see 9th February, 2009, day 3, p.34, lines 9-14 where Garda Martin Chalke stated:-
"We had a conversation between ourselves and we asked the two occupants of the vehicle to get out – to come out of the car. The two occupants, as I said, were David and Daniel Goulding and no other person was in the car at the time. I was present when Garda Flanagan cautioned both men and asked them about the package and I was also present when they denied all knowledge of ever seeing the package."

Counsel also drew the Court's attention to the difference in description of the package. Mr. Barry on the 6th February, 2009, day 2 of the trial, p.5, lines 32-33, stated that the package: "looked about the size of a book and it was wrapped in what looked like a plastic bag or a plastic package."
The evidence of Garda Martin Chalke on the 9th February, 2009, day 3, p.40 line 24 was:-
        "Q. All right, I wonder would you just mind checking your notebook, please, against what I am reading out here because what it says is – the date is on it, the time 11.10 pm, the location and the name Daniel Goulding and David Goulding, with dates of births and addresses, yes?

        Yes.
        Q. And then on the left side, the details are as follows; "informed by passer-by that vehicle with two occupants had thrown a plastic bag approximately a small football, white object thrown from passenger side of vehicle." Those notes were included; isn't that correct?

        A. That's correct."
However, it is important to note that the transcript proceeds with the following on p.41, lines 4-5:-
        "Q And was it he [Mr. Barry] who told you that it was like a "small football"?

        No, I had seen the object on the side of the road and it looked like a small football."
The core issue on this application is that of possession, and whether the judge was right to refuse to withdraw the case from the jury, counsel for the applicant having submitted that there was not sufficient evidence of possession or control by the applicant.
On the matter of the evidence of Mr. Barry, some of which is set out earlier in this judgment, counsel for the Director of Public Prosecutions drew the Court's attention to the concluding words on p.17, lines 32-34, day 2, which were:-
        "Q. Well, surely the door would have to open up to nearly a right angle in order to – for someone to throw a package directly out of the car?

        A. It just opened – it just opened a small bit. It didn't open to a right angle."
Counsel for the applicant addressed the Court on many cases. Amongst these counsel referred to R. v. Whelan [1972] N.I. 153 and relied on it. The Court is satisfied that the factual situation in that case is significantly different from the circumstances of the case before the Court. However, the reasoning of the Court of Appeal (Lowry L.C.J., Curran L.J. and O'Donnell J.) is helpful and instructive. In Regina v. William Whelan, Owen Whelan and Timothy Whelan, [1972] NI 153 the police entered a house in Brompton Park in Belfast. On being admitted they met fourteen persons in the house. In a small room upstairs the three accused Whelan brothers were found each in a bed. The police searched the room and found a revolver and some ammunition on the top of a chest of drawers, the contraband revolver and ammunition being covered by men's clothing apparently in current use. The three accused were the only adult males in the house. Each of the three men denied possession and knowledge of the gun and ammunition and at the trial each made statements again asserting complete innocence.
      At p.154 Lord Lowry said:-
        "This court considers that it was not open to a reasonable jury, properly directed, to conclude that all of the three accused were in possession of a gun found on top of the chest of drawers. In a general way a group of two or more may in fact and in law be in possession of an article even though that article is in the physical possession of one member of the group or, as it would be alleged by the Crown in this case, in the physical possession of no one at the material time. At the conclusion of the Crown case the learned trial judge rejected the submission by the defence that there was no case to answer, being then of the opinion that it was open to the jury to find that the accused were knowingly in possession of the gun, a fact which was a necessary ingredient of the finding of guilty in relation to each count and each accused.

        While it is always necessary, as the learned trial judge advised the jury, when two or more are jointly tried, to consider each charge separately against each accused, it is accepted by all that in this particular case the two alternatives on the facts were either that all three men were guilty or that they must be acquitted, and the reason for that was that it was quite impossible to say that one man in particular was at any material time the person in possession of the gun.

        The Crown had to prove, considering that the possession was not direct physical possession, a number of things including the intent of each of the accused to be in possession of the gun, what the learned trial judge referred to as his assent to being in control of it, and it was conceded, as I say, that in order to do that the Crown could not rely on anyone's physical possession and had to rely, therefore, on the surrounding circumstances. It is quite proper to regard those circumstances as consisting of what happens before, during or after the point of time to which the charge relates since what one is trying to ascertain is the mental attitude of the accused person.

        The Crown relied, in the first place, on the smallness of the room, on the fact that these accused men, who are brothers, were the only adult males and the fact that this room was, as it seems, their bedroom as well as that of three, small boys, whose ages are not quite clearly ascertained. The other occupants of the house seem to have been women or children who slept in other rooms. On the hearing of the appeal and at the trial something was made of the fact that there were other occupants of the house and other juvenile occupants of the room. Were that the only difficulty in the way of the Crown, it seems to me that the jury would have
        ample justification for disregarding to all intents and purposes the persons in the other parts of the house and indeed the persons in the room other than the three brothers who had been charged, but even narrowing the case to this extent, it seems to the court that the difficulty facing the Crown in sustaining the proposition that there is a prima facie case is that one cannot attribute the possession to any one of these three men and, therefore, one has on that basis to consider whether there is evidence on which they could properly be held to have been jointly in possession."

On p.156 Lord Lowry continues:-
        "Every argument of logic and commonsense would indicate that there was a very strong case that at least one of these men was in possession of this gun, and it is quite clear that none of them had a licence or permit to have the gun and no explanation is forthcoming as to what the gun was doing in this house. It appears to the court, however, that this is a case which could well be approached on the basis that guilt existed in the alternative, that is to say, that one, or possibly two, of these men might have been guilty while the remaining two or one, as the case may be, were or was innocent of the offences which have been included in the indictment and that the difficulty, in fact the impossibility, of laying the blame conclusively at the door of one accused is not a warrant for permitting or inviting a finding of guilty against each of them.

        So far I have said that we are dealing with the case where a direction was sought at the end of the Crown case and in our opinion a direction ought to have been granted at that stage on the ground that while there was very strong evidence that somebody was guilty of an offence in connection with this gun, there was absolutely no indication which individual was guilty and insufficient evidence on which to found the inference that all three were in possession of the gun.

        That is not quite the end of the matter. It has been established, certainly since R. v. Power [1919] 2 K.B. 572, that evidence given during the case for the defence may supplement gaps in the Crown case so that one must view the evidence as a whole if the trial proceeds to a verdict. Here each accused elected not to give sworn evidence but to make a short statement from the dock, as was his right. It is possible in some cases that an inference may be drawn either favourably or unfavourably according to what is said and to the manner in which the accused elects to make his statement. This could increase the weight of the case against an accused person, but when, as we have found here, there was no cogent evidence which would have justified the conclusion that these men were guilty of possessing a weapon, nothing (apart from an admission) which they said or failed to say consequently could make a difference to that.

        Therefore, our conclusion is that there was at the end of the case no evidence on which the jury, properly directed, could find the verdicts of guilty, which they did."
Lord Lowry then referred to the trial judge's charge as conspicuously fair and intended to place clearly before the jury the dilemma, namely that the jury in practice had to find all three men guilty or all three men not guilty. The trial judge also took care to say that if the jury could not decide who was in possession of the gun, then they were bound to acquit all three of the accused. This was the reasoning on the basis of which the convictions were quashed by the Court of Criminal Appeal on 17th September, 1971.
D.P.P. v. Foley [1995] 1 I.R. 267 was also opened to the Court. In D.P.P. v. Foley when the gardaí gained entry to the small bed-sit occupied by Mr. Foley at North Circular Road in Dublin, they found a gun clearly visible on the heating unit in the room. There was also a sawn-off shotgun and a quantity of ammunition, all quite visible, close beside Mr. Foley on the bed. Hence his conviction for possession of firearms and ammunition was confirmed as the contraband was obviously visible in the small bed-sit occupied by Mr. Foley and the sawn-off shotgun and ammunition were within his control and possession. Proximity to the contraband and likelihood of possession and control of the guns and ammunition in Foley would bear much similarity to the likelihood of possession, control and knowledge about the package of cocaine on the part of the applicant in the front passenger seat of the silver Laguna. Since the applicant was in the front passenger seat in all probability the applicant was in close vicinity in the car with the package of cocaine before and at the time of this package being jettisoned from the small aperture caused by the opening of the front passenger door beside the applicant in the front left passenger seat. In the confined space in the front of the silver Laguna the front seat passenger must have been only too well aware of the reason for and the need to jettison the contraband package as he and his brother, the driver, were approaching the garda checkpoint.
In addition, counsel opened D.P.P. v. Hunter (unreported, Court of Criminal Appeal, Finlay C.J., 9th November, 1993). That case was also about the refusal by a trial judge of an application on behalf of an applicant. In that case the applicant was stopped while driving from the ferry in Rosslare and, when his car was searched, cannabis was found hidden in the upholstery. Finlay C.J. considered the circumstances of the case and the court held that those facts were matters which a jury could have regard to as proving beyond a reasonable doubt that the accused knew of the cannabis.
A similar test is appropriate here. The circumstances of the case require to be considered, to see if the jury could have regard to them as proving beyond a reasonable doubt that the applicant had possession or control of the drugs.
Counsel for the applicant submitted that there were three possibilities: (a) the applicant opened the car door and threw out the package; (b) the applicant opened the car door and the driver threw out the package; (c) the driver opened the car door and the driver threw out the package.
The words of Lane LCJ in R. v. Galbraith [1981] 1 WLR 1037 have been adopted and applied in this jurisdiction in many cases. D.P.P. v. Leacy, (unreported, Court of Criminal Appeal, Geoghegan J., 3rd July, 2002) was opened to this Court at pp.5-6, drawing on R v. Galbraith at p.1042. There is no doubt but that our jurisprudence includes the propositions originally put by Lane LCJ being:-
"How then should the judge approach a submission of "no case"?
(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case
(2) 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.
(a) 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 a 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. It follows that we think the second of the two schools of thought is to be preferred.
There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge."

The Court applied these principles to the facts of this case. The Court is satisfied that this is not a case where there is no evidence that the crime alleged has been committed by the applicant. There was evidence which was not tenuous. In this case the prosecution evidence was such that its strength or weakness depended on the credibility of witnesses, and other matters within the province of the jury. The Court is satisfied that on a rational view of the facts there was evidence upon which a jury could properly come to the conclusion that the applicant was guilty. Therefore the learned trial judge was entitled to allow the matter to be tried by the jury.
The Court is satisfied that the evidence of possession or control was such that the learned trial judge was entitled to leave the case to the jury. This is a case where an eye witness in a queue of cars, coming up to a garda checkpoint, gave evidence of seeing two people in the car in front of him. The passenger door was opened a small bit, but it did not open to a right angle. This is an important fact given the submissions as to possible scenarios raised by counsel for the applicant. For, as counsel for the D.P.P. submitted, when one opens a car door "a little bit" the opening is behind and not beside the passenger. That is relevant to the issue as to who threw the package out of the car. It does not appear to be a case where the three scenarios raised by counsel for the applicant are equal possibilities. It was a matter for the jury to decide if the scenarios were possible. The car was a silver Renault Laguna. A package was thrown out of the "small bit" of the aperture of the opened door and landed near a telegraph pole. The eye witness told a garda at the checkpoint of the incident. A member of An Garda Síochána went to the location indicated by the eye witness and there found a package with the drugs in issue, being cocaine to the value of €70,000. The applicant was the passenger sitting in the front passenger seat of the car, which was being driven by his brother. The applicant was beside the left front door which opened "a small bit". It was for the jury to decide the facts.
The applicant told a lie when confronted – that he had never seen the package. This was a deliberate lie, related to a material issue and could be independently verified, by the evidence of Mr. Barry, and the motive for lying had to be the realisation of guilt and a fear of the truth.
It is apparent that there was evidence that a crime had been committed. The prosecution evidence depended on the credibility and reliability of Mr. Barry, an independent witness, and also on other evidence, including the tale of the throwing of the package from the left front car door, and the response of the applicant when confronted. These are matters very much within the province of the jury. On one possible view of the facts there was evidence upon which a jury could properly come to the conclusion that the applicant was guilty. Thus it was appropriate for the learned trial judge to allow the matter to be tried by the jury.
The issue of aiding and abetting arose during the trial. It was pointed out to the jury that even if the applicant had opened the door and not thrown out the package but that it had been thrown by the driver then the applicant was guilty of aiding and abetting, for anyone who aids and abets an offence is guilty of the offence itself.
Counsel for the applicant raised a requisition on the learned trial judge's charge in relation to aiding and abetting. The learned trial judge redirected the jury on the issue of aiding and abetting in the following terms:-
        "Let me say this much to you: if you take the view that there is a reasonable possibility that the driver threw the bag out of the door, then you are not entitled to convict the accused. You are not entitled to convict the accused of aiding and abetting. You are not entitled to convict the accused under the heading of aiding and abetting, okay? Now, you must be satisfied beyond a reasonable doubt that the accused, under those circumstances, did something to aid and abet the driver and that he did so knowingly and with the intention to assist the driver, okay?

        Would you like me to go over that again for you? The situation has been mentioned in relation to the aiding and abetting and that if somebody was deemed to have been – under the Act, if somebody was deemed to have been aiding and abetting somebody, he could be charged as a principal offender. I'm paraphrasing the section. Now, if you, the jury, take the view that there is a reasonable possibility that the driver, who you know is Mr. Goulding's brother but I don't know his full name, so I'm referring to him as "the driver", that the driver threw the bag out the door, then you're not at liberty to convict the accused of aiding and abetting. You must be satisfied beyond a reasonable doubt, because they're the standards I've given you, that the accused did something to aid and abet the driver and that the accused did so knowingly and with the intention to assist the driver, okay?"
In the circumstances of this case it was not inappropriate that the issue of aiding and abetting arose and was addressed and readdressed by the learned trial judge.
Conclusion
Consequently, treating the application for leave to appeal as the hearing of the appeal, the Court would dismiss the appeal.

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