The Court of Appeal has dismissed Rafal Klubikowski’s appeal against convictions for drug offences, finding no basis to disturb the conviction or the trial judge’s directions to the jury.
The judgment, delivered on 18 May 2023, concerned convictions entered on 5 November 2019 for offences under the Misuse of Drugs Act 1977, including an offence under sections 15A and 27, relating to cannabis and cocaine. The appeal court considered five grounds. Four of the nine grounds originally filed were not pursued at the oral hearing.
The convictions arose from a Garda stop on the M8 on 30 November 2017. Garda Peter O’Loughlin said the occupants of the car appeared uneasy after noticing his unmarked patrol car and that the car did not overtake him when other traffic did. He stopped it. When the front passenger opened a window, the Garda said he smelled cannabis and searched the vehicle under section 23 of the 1977 Act. The judgment records that the appellant did not object to the search.
The court held that the Garda had a common law power to stop a motorist while carrying out duties to detect and prevent crime, provided the power was not exercised capriciously or arbitrarily. It concluded that the stop was based on the occupants’ demeanour and was within that power. Although the trial judge had described the stop as an exercise of a Road Traffic Act duty, the appeal court said the error about the power’s source did not make the stop unlawful. The cannabis smell supplied the suspicion required for the search.
The appellant also argued that the jury had not been adequately directed on possession and control, or on the statutory defence concerning lack of knowledge of a controlled drug. The appeal court found that the trial judge explained the elements of possession and set out the appellant’s account. On the statutory defence, the judge had not told the jury that the evidential burden shifted to the appellant to establish a reasonable doubt about his knowledge. But the jury had instead been directed that the prosecution had to prove beyond reasonable doubt that he knew or ought to have known the drugs were controlled substances. The appeal court said this direction favoured the defence and found no resulting injustice that made the conviction unsafe.
On duress, the appellant relied on interview statements that a passenger told him he had no choice but to drive to Cork and that he was afraid. The court held that those remarks did not amount to evidence of threats of death or serious harm, and the threshold for leaving the defence to the jury had not been met. The appeal was dismissed.