The Court of Criminal Appeal refused Sophie Malric leave to appeal her convictions after finding that the trial judge had corrected an initially unclear explanation of the statutory defence concerning her knowledge of the drugs.
Malric had been convicted after a trial of four offences arising from the discovery of 3.16kg of cocaine in a suitcase she brought to Dublin Airport on 18 December 2009. She received concurrent 10-year prison terms on counts of unlawful importation and possession of drugs for supply with a value of at least €13,000. The other two counts were taken into consideration.
At trial, Malric accepted that she possessed the suitcase and that the prosecution had proved the other matters, save for whether she had guilty knowledge. She said she believed the suitcase contained gold dust, not cocaine. Her account was that people she had met in Senegal and Gambia arranged her travel and gave her a bag to carry. She said she had been told she would receive €2,500 plus expenses and pocket money. The cocaine was concealed in the suitcase base. The value of the drugs was agreed at €210,119.
Her appeal focused on the trial judge’s directions to the jury about section 29(2) of the Misuse of Drugs Act 1977. That provision allows a defence where a person did not know, and had no reasonable grounds to suspect, that what they possessed was a controlled drug. Malric argued that the judge’s references to her needing to “prove” the defence and provide “sufficient evidence” risked making the jury think she carried a legal burden to disprove guilty knowledge. She also challenged the explanation of recklessness.
The prosecution argued that, read as a whole and including the judge’s later responses to defence requests for clarification and jury questions, the directions correctly told jurors that Malric only had to raise a reasonable doubt.
The appeal court said the judge’s initial explanation of the burden was not sufficiently clear. But it found that he subsequently explained that Malric’s evidence needed only to raise a reasonable doubt, and that if it did, she was entitled to the benefit of that doubt. The court noted that her counsel sought no further clarification after those explanations. It rejected the challenge to the recklessness directions as unfounded.
The court concluded that the jury could not have been left in doubt about the standard it had to apply to the prosecution’s proof of the required mental element. It refused Malric leave to appeal her conviction. The judgment was delivered by Mr Justice Finnegan on 24 November 2011.