The Court of Criminal Appeal allowed appeals by Kieran Smyth Senior and Kieran Smyth Junior and ordered a retrial, ruling that the jury had been misdirected on the burden of proof in their cannabis possession case.
The two men had been convicted of three offences each after a trial at Letterkenny Circuit Criminal Court in June 2008. The charges concerned possession of cannabis for unlawful sale or supply, including cannabis said to be worth more than €13,000, and simple possession. Smyth Junior was convicted unanimously; Smyth Senior by majority verdict.
The appeal focused on the statutory defence under section 29(2) of the Misuse of Drugs Act 1977. The applicants argued that the trial judge wrongly directed the jury on what they had to prove to establish that they did not know, and had no reasonable grounds to suspect, that the parcels contained a controlled drug.
The parcels were found during a routine search at a DHL compound at Dublin Airport in August 2007. Gardaí arranged a rendezvous and handed them to the applicants, who were then arrested. The defence account, given in statements to gardaí and evidence at trial from one applicant, was that Smyth Junior had been asked by a friend to collect parcels said to contain computer parts. He asked his father to drive a van and help, and said they expected around €300.
The appeal court said the prosecution had proved that both men took possession of parcels containing cannabis. It noted that the contents would look like ordinary packages to someone without prior knowledge. The prosecution also relied on evidence about the men’s movements and behaviour to argue that they knew what the parcels contained.
The trial judge told the jury that the burden of proving guilt remained with the prosecution and never shifted to the defence. But he also told them that an applicant would need to establish lack of knowledge beyond reasonable doubt. The appeal court said the latter direction was wrong: the defence did not have to prove that point beyond reasonable doubt, and the directions risked being inconsistent.
The court held that under section 29 the accused bears a legal burden to establish a reasonable doubt that he knew, or had reasonable grounds to suspect, that the substance was a controlled drug. The prosecution must still prove possession and that the substance was a controlled drug beyond reasonable doubt. The court said the statutory defence could be supported by pointing to weaknesses in the prosecution case, a statement to gardaí or the accused’s own evidence.
The ruling addressed the proper jury direction for future cases under that provision. It did not determine the applicants’ guilt or acquit them. The court treated their applications for leave to appeal as appeals, allowed both appeals and ordered a retrial.