The Court of Appeal has quashed Remigijus Tuma’s convictions for three cannabis offences after finding that the jury received confusing and incorrect directions on the burden of proof. It ordered a retrial on all three counts.
Tuma had been convicted by a jury in the Circuit Criminal Court on 25 May 2011, following a six-day trial. The most serious conviction concerned possession of cannabis worth more than €13,000 for sale or supply. The other convictions concerned possession for sale or supply and simple possession. He was sentenced to seven years’ imprisonment for the most serious offence, with the other offences taken into consideration. His appeal challenged the convictions only.
The case arose from a Garda stop on Killakee Road in south County Dublin in the early hours of 2 May 2008. Gardaí found a holdall containing about 15kg of cannabis in the rear of Tuma’s BMW. Tuma, who was driving, said in Garda interviews that he had agreed to drive two men to Bray for €500 and did not know what was in their bag. He did not give evidence at trial.
The appeal concerned section 29(2)(a) of the Misuse of Drugs Act 1977. Under the interpretation the Court of Appeal said it would follow, the prosecution must prove possession of a controlled drug beyond reasonable doubt. If the accused relies on the statutory defence, the jury must consider whether the accused has raised a reasonable doubt that he knew, or had reasonable grounds to suspect, that the item under his control was a controlled drug.
The trial judge first told the jury that the defence had to be established on the balance of probabilities. She later described the burden as raising a reasonable doubt, but the Court of Appeal said the instructions conflicted and failed to explain the limited scope of the statutory exception. It also found that the jury had been directed to ask whether Tuma had reasonable grounds to suspect that the holdall contained drugs, instead of whether the defence had raised a reasonable doubt on that issue.
The appeal court held that the jury had been misdirected on fundamental matters and that the convictions were unsafe and the trial unsatisfactory. It allowed the appeal and directed a retrial on all three counts. It also granted leave to argue the additional appeal ground, finding that an adequate explanation had been given for its not being raised at trial and that the issue raised a significant concern about the safety of the verdict.
The judgment offered an illustrative jury direction for future cases involving section 29, while stressing that it was guidance rather than a prescribed script.