A MAN convicted on drug charges has been allowed to bring an appeal to the Supreme Court on grounds that his case raises an important point of law relating to how valuations are placed on illegal drugs.
The case arises in light of laws providing for a minimum mandatory sentence of 10 years for persons found with illegal drugs valued at more than €13,000.
Yesterday the three-judge Court of Criminal Appeal, with Ms Justice Susan Denham presiding and sitting with Mr Justice Daniel Herbert and Mr Justice Michael Hanna, ruled that Alphonsus Connolly’s case raised a point of law of exceptional public importance requiring determination by the Supreme Court.
The point of law arises because Section 15(a) of the Misuse of Drugs Act provides that the value of drugs found must be ascertained by an expert witness.
The Supreme Court will be asked whether the purity of illegal substances can lawfully be established from the evidence of an expert witness relating to the general levels of purity found in other similar substances.
The appeal arises after Connolly (46), with an address at Kilraine Village, Rosslare Harbour, Co Wexford, was convicted in 2007 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. He was jailed for the mandatory minimum 10-year term.
The trial heard Connolly was found with 10 plastic bags containing white powder, and a scientist testified these were drugs with a street value of €145,755. Connolly pleaded guilty, and the issue for the jury to consider was the question of the value of the drugs.
He appealed his conviction on grounds including that the judge should have withdrawn the case from the jury because there was no evidence on which the jury could be satisfied beyond doubt that the market value of the drugs was €13,000 or more.
The appeal court dismissed his appeal last May after holding that there was sufficient evidence for the jury to conclude the market value of the drugs exceeded €13,000. Connolly then applied for the case to be referred to the Supreme Court to address how valuations are placed on drugs.
Yesterday the appeal court certified the case for referral to the Supreme Court. That court will be asked whether the amount of the controlled substance present can be established on the basis of an expert’s oral evidence about the range within which amounts of that controlled substance in other powders generally falls.
The Supreme Court will also be asked to decide whether the prosecution must disclose to the defence a statement or a report by the expert setting out the facts upon which their opinion as to that range is based.
Michael O’Higgins, for Connolly, had argued that Connolly’s trial was told, in line with laboratory procedure, that only five of the 10 bags were tested, and the amphetamine content of the powder was not analysed.
A scientist told the court the five packs contained amphetamines, and it was unlikely any of the packs would be negative for amphetamines. He agreed that, while amphetamine purities generally fall between 10-40 per cent, a value of 1 per cent could not be excluded.
Counsel said a detective garda had said that, if the amphetamines had a purity of 1 per cent, the value of the drugs would have been less than €13,000. To bring a prosecution under Section 15(a), the value of the drugs in question must be at least €13,000.