A man jailed for ten years for having drugs valued at more than €13,000 has had his conviction quashed by a five judge Supreme Court due to the prosecution’s failure to produce adequate evidence about the value of the drugs seized.
The case arose in the context of laws providing for a minimum mandatory sentence of 10 years for persons found with illegal drugs valued at more than €13,000. The judgment is likely to affect the conduct of other prosecutions on drug charges.
In setting aside the conviction of Alphonsus Connolly yesterday on a count of having drugs valued at more than €13,000, the Supreme Court said it would not order a re-trial.
There was no reason to believe a scientist who gave evidence in relation to the amphetamine content of the drugs would be able to give different evidence at a new trial, Mr Justice Nial Fennelly said.
Mr Connolly’s conviction on a second count of having drugs for sale or supply, to which he pleaded guilty and received a four year sentence in 2007, stands.
The Court of Criminal Appeal had permitted Mr Connolly bring an appeal to the Supreme Court on grounds his case raised an important point of law relating to how valuations are placed on illegal drugs.
Section 15(a) of the Misuse of Drugs Act provides the value of drugs must be ascertained by an expert witness and the Supreme Court was asked to decide whether the purity of illegal substances could lawfully be established from evidence of an expert witness relating to the levels of purity “generally” found in similar substances.
Connolly (46), Kilraine Village, Rosslare Harbour, Co Wexford was convicted of having amphetamines with a value of €13,000 or more for sale and supply at Kill West, Kill, Co Kildare on November 16th 2004.
The trial heard he was found with ten plastic bags containing white powder which the prosecution alleged had a street value of €145,755.
Connolly disputed the valuation evidence and, in his Supreme Court appeal, argued the case should have been withdrawn from the jury because there was no evidence beyond reasonable doubt the market value of the drugs was €13,000 or more.
The court heard, in line with accredited laboratory procedures, only five of the ten bags seized were tested. A scientist said she had established the five packs contained amphetamines and said it was unlikely any of the other five would test negative for amphetamines. She also said, using a legitimate statistical method of sampling, she could say with 99 per cent certainty at least seven of the packs contained amphetamine.
She agreed she had not established exactly how much amphetamine was in the packs tested and also agreed, while amphetamine purities generally fall between 10% and 40%, a purity value of 1% could not be excluded. A Garda detective also agreed, if the amphetamines had a purity of 1%, the value of the drugs would have been less than €13,000.
Mr Justice Fennelly said evidence about the legitimacy of the statistical model used by the scientist allowed the Supreme Court to proceed on the basis at least seven of the ten packs contained amphetamine. Mr Connolly’s admission to gardaí he had “speed” in the car was also capable of leading to an inference all the bags contained amphetamine.
However, the real point related to the amount of amphetamine involved, the judge said. The scientist’s evidence was that amphetamine purities “generally” fall between 10 and 40 per cent but she had not expanded on what “generally” meant, whether it related to her own experience or the world at large.
It could not be assumed the scientists meant any more than there was “probably” 10-40 per cent of amphetamine present, the judge said. Probability was “not enough” and the evidence did not exclude the possibility the percentage of amphetamine in each of the seven packs was as low as one per cent.
The scientist’s evidence about the percentage of amphetamine was the only evidence on which the jury could have reached a conclusion on the value of the drugs, Mr Justice Fennelly said. It was not sufficient for the prosecution to prove the mere presence of amphetamines and rely on an unexplained range of values which
“generally” applies without ay evidence as to the extent of cases outside that range.
In the circumstances, there was a gap in the prosecution evidence and the case should have been withdrawn from the jury, he found.
