The Court of Criminal Appeal has allowed Daniel Cleary’s appeal against his convictions for drug offences and directed a retrial, finding that a trial judge’s remarks about where a rucksack was in a car may have led the jury to a false belief on a central issue.
Mr Cleary had been convicted by a jury on 4 March 2005 of three offences: possessing a controlled drug for supply; possessing a controlled drug; and possessing controlled drugs worth at least €13,000 for supply. The offences were alleged to have occurred on 19 February 2003 at The Heath, Portlaoise. He received prison terms of five, two and ten years respectively.
The prosecution case was based on circumstantial evidence. Gardaí had seen Mr Cleary and his uncle, Alan Finnamore, at Killenny Wood the day before the alleged offences. The following day they saw Finnamore, driving with Mr Cleary as passenger, leave a car and go to a ditch. Garda evidence was that Finnamore appeared to take something from the car and carry it to the ditch. After the men later parked by a farmhouse, Gardaí arrested them and found a rucksack containing amphetamine in the ditch.
The appeal court noted there was no direct evidence that Mr Cleary handled the rucksack or knew what it contained. It upheld the trial judge’s decision to leave the case to the jury, finding evidence capable of supporting a conviction on the prosecution’s joint-enterprise case. It also rejected complaints about evidence of Mr Cleary’s denial that he had been at the lane the previous day, and about parts of the prosecution closing speech. The trial judge had told the jury there was no onus on Mr Cleary.
The court’s concern was the judge’s account of the evidence about the rucksack’s position. The judge told jurors it had been “somewhere in the front of the car, rather than the back”. The appeal court said the evidence did not establish that it was in the front of the car. That mattered because the defence argued the prosecution had not proved Mr Cleary knew the rucksack was in the vehicle, and its position could bear on whether he was aware of it.
The court considered the inaccurate description could have led jurors to believe the rucksack was in the front, where Mr Cleary had been sitting, and that this could have been decisive in a case resting almost entirely on circumstantial evidence. It therefore held the convictions unsafe, granted leave to appeal, allowed the appeal and directed a retrial. The judgment does not report the result of any retrial.