The Court of Appeal has quashed five drug convictions after finding that the jury was wrongly directed on the burden of proof for a defence based on lack of knowledge.
The judgment, delivered by Mr Justice Mahon on 22 June 2015, concerned an appeal by Ghenadie Melenciuc against convictions entered after a four-day trial at Wexford Circuit Criminal Court. The appeal court dealt only with the conviction appeal; the judgment says a separate appeal against sentence was also brought.
Melenciuc was stopped after arriving by ferry at Rosslare Europort on 22 August 2011. Customs officers found cannabis resin worth €316,566 concealed in the vehicle’s petrol tank. He told gardaí he did not know the drugs were there. At trial, he did not give evidence, and no oral evidence was called on his behalf.
The jury found him guilty of five counts: possession of cannabis resin; possession for sale or supply; possession for sale or supply where the drugs were valued at €13,000 or more; and two importation offences. He was sentenced in March 2013 to concurrent terms of 10 years on the third and fourth counts and five years on the fifth. The first two counts were taken into consideration.
The appeal focused on section 29(2) of the Misuse of Drugs Act 1977, which provides a defence where a person did not know, and had no reasonable grounds to suspect, that they possessed a controlled drug. The Court of Appeal said the prosecution still had to prove the elements of the offence beyond reasonable doubt. The accused’s evidential burden could be met by pointing to evidence in the case that raised a reasonable doubt about knowledge; it did not require the accused to testify or to prove lack of knowledge beyond reasonable doubt.
The appeal court found that the trial judge had wrongly told the jury the accused had to prove the absence of knowledge to a lower standard than the prosecution’s burden. The judge’s later clarification did not cure the error. The court accepted that explaining the statutory test was difficult, but held that the jury should have been left with the understanding that the defence needed only to raise a reasonable doubt on knowledge.
The court rejected the other complaints about the trial judge’s directions, including that the defence case and facts undermining the prosecution case had not been adequately put to the jury. It nevertheless allowed the appeal and quashed the convictions. Although the statutory defence related directly to the possession counts, the court also quashed the importation convictions because all five counts were inextricably linked to the same consignment of drugs.