The Court of Criminal Appeal has allowed James Bowes’s appeal against his conviction for possession of heroin for sale or supply and ordered a retrial, after finding errors in evidence heard by the jury.
Bowes was convicted in the Circuit Criminal Court on 8 July 2003 on two counts relating to possession of diamorphine or heroin at James’s Street, Dublin, on 3 April 2000. He received a 12-year prison sentence on the sale-or-supply count, with the final two years suspended. The appeal court’s judgment was delivered on 22 November 2004.
The appeal court held that evidence about confidential information that prompted the Garda operation should not have been given. It said that evidence was not probative of any element of the case and amounted to hearsay suggesting Bowes was involved in importing and distributing diamorphine. The court said that ground alone required the appeal to succeed, while a retrial remained appropriate.
The court also ruled that fingerprints taken from Bowes in Garda custody should have been destroyed after the first proceedings were struck out and before the prosecution recommenced. It held that the prints should not have been available as evidence or admitted at trial. It said fingerprint evidence could still be presented at retrial if new prints for comparison were lawfully obtained; that issue was not before the appeal court.
On the right to silence, the appeal court upheld the admission of answers Bowes was alleged to have given during questioning, including remarks about washing in the car boot. The court noted that Bowes denied making those statements, but said they were not an exercise of his right to remain silent. It also said that evidence of his refusal to answer during other periods of detention had not been admitted.
However, the court found that the prosecution’s reference in its opening to Bowes making no comment when shown exhibits was inappropriate. It said the statutory provision allowing inferences from silence concerned a specific fact relied on in a defence that the accused could reasonably have been expected to mention when questioned; it did not permit general silence to be admitted. The first warning given to Bowes, about failing to answer questions, did not meet that requirement. The appeal succeeded on this issue insofar as the prosecution relied on his failure to comment on the exhibits.
The court rejected the challenge concerning the unavailable Honda car, relying on an earlier Supreme Court decision, while leaving questions about late additional evidence and exhibit presentation to be considered in light of the retrial. It treated the application for leave to appeal as the notice of appeal, allowed the appeal and ordered a retrial.