The People at the suit of the Director of Public Prosecutions (prosecutor/respondent) v Paul Coddington (accused/applicant).

Criminal Law - Admissibility of evidence - Burden of proof - Trial judge's charge to jury - Whether trial judge must instruct jury regarding inferences

The Court of Criminal Appeal (Mr Justice Murray, Mr Justice Johnson and Mr Justice Kelly); judgment delivered 31 May 2001.

A trial judge has a duty to instruct the jury that the onus of establishing its case beyond reasonable doubt, including inferences, remains on the prosecution at all times and it was inconsistent with this duty for the charge to a jury to suggest that there was some onus on the accused to provide evidence of an innocent explanation for the presence of a large quantity of cash found in his home.

A trial judge must expressly instruct the jury not to draw any inference from the exercise by an accused of his right not to give evidence. It would be unsafe to allow the conviction to stand when the trial judge's charge to the jury recalled the exercise by the accused of his right not to give evidence in the context of the failure of the defence to provide an innocent explanation for the presence of the cash in the accused's home and without directing the jury not to draw any inference from the exercise by the accused of that right.

The Court of Criminal Appeal so held in granting the applicant's appeal, setting aside the conviction and ordering a retrial.

Roderick F. O'Hanlon BL for the prosecutor/respondent; Barry M. White SC and Jonathan Kilfeather BL for the accused/ applicant.

Mr Justice Murray said that the applicant was convicted in the Circuit Court of possession of cannabis for the purpose of selling or otherwise unlawfully supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993 and sections 15 and 27 of the Misuse of Drugs Act 1977. The applicant received a custodial sentence and was granted bail pending his application for leave to appeal against his conviction. Mr Justice Murray outlined the facts of the case which may be summarised as follows: A woman noticed a man standing at the back of a black car throwing plastic bags into a ditch. She had a short conversation with the man prior to his departing in the car and she then reported the matter to the Garda. She described the man and provided the number of his car. Two detectives went to the scene and searched the area where the bags were thrown. One detective found bags containing cannabis resin. Shortly thereafter, the other detective saw a black car approach the scene and he identified the driver as the applicant. The car left the scene and was eventually stopped by the Garda and one of the detectives arrested the applicant for an offence under the Misuse of Drugs Acts 1977 to 1984. A warrant for the search of the applicant's residence was obtained. At the applicant's trial, one of the detectives gave evidence of finding £27,920 cash, comprising 1,468 notes, in the applicant's residence. This was found hidden in two locations, namely a concealed compartment under a drawer in the kitchen and a false compartment in the base of a wardrobe in the applicant's bedroom. The forensic evidence was that approximately 6 kilograms of cannabis resin were found in the bags recovered from the roadside.

Mr Justice Murray noted that the applicant applied for leave to appeal against his conviction on two grounds. Firstly, it was submitted that the trial judge wrongfully admitted the discovery of the cash in evidence and that, having done so, he failed to discharge the jury when he ruled against the admissibility of evidence that traces of cannabis were found on this cash. Secondly, it was submitted that the trial judge's direction to the jury, as to the inferences to be drawn from the finding of the cash in the applicant's home, was unbalanced and unfair because it suggested that the onus of proof was on the applicant to establish an innocent explanation for the presence of the cash. In addition, it was submitted that the trial judge wrongly, and contrary to DPP v Finnerty [1999] 4 IR 364, invited the jury to draw inferences in relation to the finding of the cash from the applicant's failure, when he was in custody and in evidence at the trial, to explain its presence in his home.

As to the first ground upon which the applicant sought leave to appeal, Mr Justice Murray said that, at the trial, the applicant objected to the admissibility of the evidence as to the finding of the cash in his home on the grounds that its probative value was outweighed by its prejudicial nature. Mr Justice Murray said that, having heard submissions in the jury's absence, the trial judge admitted the evidence of the finding of the cash. The trial judge admitted this evidence having regard to the basis on which it was being proferred by the prosecution, namely that expert examination confirmed that it contained debris of cannabis resin. Mr Justice Murray said that, while the trial judge did at that point allude to the prosecution being entitled to adduce evidence of the finding of the cash in any event, it was clear that the decision to admit the evidence as to the finding of the cash was, at that point, based wholly on the premise that the prosecution would adduce admissible evidence as to the presence of debris of cannabis resin on it. Mr Justice Murray noted that the trial proceeded on that basis and evidence was given of the finding of the cash in the applicant's home. Mr Justice Murray was satisfied that, given the basis for his ruling, the trial judge was correct in admitting the evidence as relevant and material to the issues in the trial.

Mr Justice Murray noted that the applicant subsequently objected to the admissibility of expert evidence regarding the finding of cannabis debris on the cash. The trial judge refused to admit this evidence on the grounds that the amount of cannabis resin debris taken from a total of 1,468 notes of various denominations was so minute that it was of no probative value.

Thereafter, the applicant renewed his objection to the admissibility of the evidence as to the finding of the cash. The applicant asserted that there were a variety of reasons why he might have had the cash in his home and that the jury were obliged to take the inference most favourable to him. Mr Justice Murray noted that the trial judge indicated that he was disposed to allowing the trial to proceed on the basis of the evidence given in relation to the finding of the cash but that he would direct the jury in relation to the onus of proof and the law concerning inferences which may might be drawn from the evidence. In response to the trial judge's inquiry, the applicant confirmed that he was not seeking to have the jury discharged and the trial proceeded.

Mr Justice Murray said that, in principle, where an accused expressly agreed that his trial should proceed on the basis of evidence already tendered to the jury, it was not open to him, on appeal, to challenge the verdict on the grounds that the jury was not discharged or that the evidence was admitted unless this gave rise to some essential flaw in the trial such that it affected its fundamental fairness.

Mr Justice Murray said that there was no reason to depart from this principle. In any event, the applicant was before the court on a charge of selling illicit drugs. A substantial quantity of money had been found concealed in his home. Mr Justice Murray noted that the applicant's counsel, in submissions concerning the prejudicial value of the evidence of the finding of the cash, observed that it was common knowledge that drug dealers have large amounts of money.

Mr Justice Murray said that it was the court's view that this was a reason why the finding of a substantial amount of money in a case such as this might have probative value and thereby be admissible. Mr Justice Murray said that the admissibility of the evidence was within the trial judge's discretion and, thereafter, it was a matter for the jury to decide what, if any, inference was to be drawn from it having regard to the totality of the evidence. Mr Justice Murray said that the court was not satisfied that the evidence was so prejudicial as to outweigh its probative value and that the trial judge acted properly within the scope of his discretion.

The second ground upon which the applicant sought leave to appeal was that the trial judge's charge to the jury, regarding the inferences to be drawn from the finding of the cash, was unbalanced and unfair. Mr Justice Murray quoted from the trial judge's charge where, with reference to the onus of proof on the prosecution, he said: "Now what that means is this, that where in the course of evidence there are two inferences which are capable of being drawn from evidence in a case, and the two inferences are of equal value as far as you are concerned, if one inference is in favour of the accused and the other inference is against the accused, in that circumstance because the prosecution have to establish the question beyond a reasonable doubt - I will come back to that in a moment - where the inferences are equal, where they have not established the question beyond reasonable doubt and, therefore, the inference which you consider to be the most favourable to the accused must be determined in his favour. That is what is known as giving the benefit of the doubt in your mind to the accused."

Mr Justice Murray noted that the trial judge used the finding of cash as an example of evidence from which inferences can arise and that he referred to the different inferences sought by the prosecution and the applicant, namely the prosecution's contention that it was the proceeds of criminal conduct and the applicant's submission that it was used or arose in the course of the applicant's business. Mr Justice Murray noted that the trial judge proceeded to say: "Now those are inferences if you like which you are invited to draw, one equal to the other, and you have to decide, ladies and gentlemen, if those inferences are equal or whether or not the prosecution have established to your satisfaction that that inference, which they say is the correct inference - is the correct one - and if you are not so satisfied, well then you must determine that Mr Coddington had possession of that money in his dwelling house for innocent purposes and that is the end of that issue if you determine it on that basis."

Mr Justice Murray said that, while the trial judge's direction in relation to inferences which the jury might find to be of equal value might be literally correct, the direction was not complete and could have led the jury to believe that, if the inferences were not equal, but that contended for by the prosecution was more probable than that favourable to the applicant, they would be entitled to rely on the more probable inference in reaching their verdict.

Mr Justice Murray said that the trial judge's direction as to the onus of proof on the prosecution was entirely correct. He further noted that, much later in his charge, the trial judge returned to the issue of the inferences which might be drawn from the finding of the cash and, on this occasion, the trial judge gave a correct and complete direction to the jury as follows: ". . . where there are two inferences capable of being drawn, one in favour of the accused and one against him, if you are not satisfied that the one against him is established beyond reasonable doubt then you must given him the benefit of any doubt you have and the inference in his favour is the one you must apply."

Mr Justice Murray said that, if this was the only issue in relation to the charge to the jury, it would be necessary to consider whether this later direction cured any earlier deficiency or ambiguity in charge. He noted, however, that the applicant relied on a further passage in the charge to the jury where the trial judge said: "The defence say to you that as far as the cash that was found in the house that there are the inferences to be drawn from that which I have already described to you. The defence say to you that you don't know who lives in the house apart from Mr Coddington, though the fact that it was his residence was not disputed, that there is no evidence of who else may have access to the house or whose money it was. They say that there may be a totally innocent explanation as to why the cash was in the house. You are invited then to speculate as to what the perfectly innocent explanation may be. You have had no evidence from the accused in so far as that is concerned. There is no contest about where he lived, there is no contest that it was his money, and yet you are invited to speculate as to what the explanation there might be for the money being there."

Mr Justice Murray said that the latter few sentences of this portion of the charge effectively told the jury that the applicant's contention as to a possible innocent explanation for the presence of the cash in his home was a matter for speculation and that they were invited to deal with it on that basis. Mr Justice Murray said that the reference to the applicant's failure to give evidence in this context could only suggest to the jury that an adverse inference might be drawn from his failure to give evidence of a possible explanation. Mr Justice Murray said that, throughout the trial, the defence approached the issue of the finding of the cash on the basis that the prosecution had not discharged its onus of establishing beyond reasonable doubt that it actually belonged to the applicant and, in particular, if the jury found that the money did belong to him, the prosecution had not discharged its onus of establishing that there was no innocent explanation for its presence.

Mr Justice Murray said that the direction given was inconsistent with a trial judge's duty to instruct the jury that the onus to establish its case beyond reasonable doubt, including inferences, remained on the prosecution at all times. The charge at this stage suggested that there was some onus on the applicant to provide evidence of an innocent explanation for the presence of the money.

Mr Justice Murray noted that, in delivering the Supreme Court's judgment in DPP v Finnerty [1999] 4 IR 364, Mr Justice Keane had held that it was not disputed that the exercise by an accused of his right not to give evidence in his defence cannot lead to any inferences adverse to him being drawn by the court and that, in a trial by jury, the jury must be expressly so advised by the trial judge.

Mr Justice Murray said that, while the trial judge might remind the jury of the fact that an accused, as was his right, had not given evidence in the trial, the jury must be expressly instructed not to draw any inference from the exercise of that right. Mr Justice Murray said that, in the present case, the trial judge not only recalled that the applicant had not given evidence but did so in the context of the failure of the defence to provide evidence of an innocent explanation of the presence of the cash and without any direction that no inference was to be drawn from his failure to give evidence.

Mr Justice Murray said that it would be unsafe to allow the verdict to stand in the circumstances. He granted the application for appeal, set aside the verdict and ordered a retrial.

Solicitors: Chief State Solicitor for the prosecutor/respondent; Patrick M. Goodwin & Co. (Drogheda) for the accused/applicant.