The Court of Criminal Appeal has certified a point of law for appeal to the Supreme Court concerning expert evidence about the amount of a controlled substance in a drug powder.
The ruling, delivered by Denham J on 12 November 2009, followed an earlier judgment on Alphonsus Connolly’s appeal against his conviction at Naas Circuit Criminal Court. The conviction was for possessing amphetamine for sale or supply, where the market value of the drug was alleged to be €13,000 or more.
Connolly’s appeal argued that the trial judge should have withdrawn the case from the jury at the end of the prosecution case. The application said there was no evidence on which a properly directed jury could find beyond reasonable doubt that the drugs’ market value reached the €13,000 threshold.
In its judgment on 12 May 2009, the Court of Criminal Appeal concluded there was sufficient evidence for the jury to reach that finding. It held that the trial judge had made no error of law by leaving the case to the jury.
Connolly then sought a certificate under section 29 of the Courts of Justice Act 1924, as amended, so that an appeal could be brought to the Supreme Court. His proposed question concerned whether the prosecution could rely on general evidence about drug purity when that evidence was not included in the Book of Evidence and was based on tests unavailable to the defence.
The Court determined that the case involved a point of law of exceptional public importance and that it was desirable in the public interest for an appeal to be taken to the Supreme Court. It certified a question about whether the amount of a controlled substance in powder inside sealed containers could be established by an expert’s oral evidence about the range found in other powders generally. The certified question also asks whether the prosecution must disclose a statement or report setting out the facts underlying the expert’s opinion.
The ruling certifies the legal question for appeal. It does not state how the Supreme Court answered it.