The Court of Criminal Appeal quashed Daniel Cleary’s conviction and sentence for possessing cocaine for supply after the prosecution failed to prove the regulations cited in that charge. It ordered no retrial. His separate conviction for cocaine possession and its one-year sentence stand.
The judgment, delivered by McGuinness J. on 3 May 2005, treated Cleary’s application for leave to appeal as the appeal itself. The court allowed the appeal on the second count because the prosecution had conceded at trial that it had not proved the Misuse of Drugs Regulations 1988 and 1993. The trial judge refused the prosecution’s application to reopen its case to prove them, then rejected the defence request for a direction without giving reasons.
The second count alleged that Cleary possessed cocaine at Durrow, Tullamore, for the purpose of selling or supplying it. The appeal court said the weight of authority required the prosecution to prove the relevant regulations in a criminal trial. It held that the trial judge erred in rejecting the defence submission in the circumstances. Citing the Supreme Court’s decision in The People (Attorney General) v Griffin, it said no retrial should be ordered where the prosecution had failed to tender evidence necessary to sustain a conviction.
The court dismissed Cleary’s separate challenge to fingerprint evidence and left the first-count conviction in place. At trial, Garda evidence was that Cleary had agreed to provide fingerprints while detained and signed a consent form, although the form was not produced in evidence. The appeal court held that written consent or proper superintendent-level authority could permit fingerprints to be taken; both were not required. It said it would generally be desirable to explain the purpose of taking fingerprints and that a person could refuse, but the shortcomings in this case did not make the fingerprint evidence inadmissible.
The convictions followed a November 2003 jury trial in the Circuit Criminal Court for the Midlands Circuit. Garda evidence at trial was that officers found a holdall beneath bushes behind a derelict shop, containing a first-aid box and sachets of white powder. A fingerprint attributed to Cleary was said to have been found inside the box’s lid. The judgment records that neither the holdall nor the box was listed as an exhibit in the Book of Evidence and neither was admitted at trial. The jury convicted Cleary on both counts and the sentences of one year for possession and three years for possession for supply were concurrent.