Drug dealer fails to get confiscated cash back
A convicted drug dealer has lost an appeal against the confiscation of €6,000 he was deemed to have acquired through drug dealing.
Robert Harrison (50), with a last known address at North Clarence Street, Dublin 1, had pleaded guilty at Dublin Circuit Criminal Court to two counts of possessing drugs for sale or supply on 18 August 2001.
He was sentenced to five years imprisonment in February 2002 and in 2009 he had €6,455 confiscated by order of the Circuit Court pursuant to section 4 of the Criminal Justice Act 1994.
Harrison sought to appeal the confiscation order in the Court of Appeal today. However leave to add an additional ground of appeal was refused and consequently the appeal was dismissed.
The money had been frozen pending the appeal, the court heard.
Counsel for Harrison, Shane Costelloe SC, who had not represented his client prior to these proceedings, submitted that the Circuit Court judge did not give adequate reasons for ruling as admissible a garda's opinion evidence during the confiscation proceedings.
Furthermore, he submitted that the Circuit Court did not give adequate reasons for coming to the conclusion that it did.
Mr Justice George Birmingham said the issue of opinion evidence arose when a garda claimed on affidavit that Harrison was selling half a kilogram of cocaine per week in the six months prior to his arrest and that he had underestimated the value of the cocaine.
Harrison had admitted to selling €181,000 worth of drugs with a resulting profit of €41,000 in the six months prior to his arrest whereas the garda claimed he had actually sold €350,000 worth of drugs with a resulting profit of €82,500.
Counsel submitted that there was no effort to qualify the garda's expertise on the drug trade, Mr Justice Birmingham said.
However, if that was a point to be relied upon it should have been made at trial, the judge said.
Furthermore, then counsel for the DPP, Kerida Naidoo BL, had stated in the Circuit Court that the garda's affidavit was not evidence on which he was relying.
Mr Justice Birmingham said the court was satisfied that there was no reason to believe the judge acted on inadmissible evidence.
Turning to the absence of reasons, Mr Justice Birmingham said the point was not made at first instance, was not raised in the grounds of appeal and no explanation for that had been provided.
What was sought, he said, flew in the face of long established jurisprudence of the Court of Appeal and its predecessor.
Accordingly the court refused Harrison leave to add the additional ground of appeal but made the following observation.
There was no doubt, Mr Justice Birmingham said, that the judge did not provide an elaborate reasoning and the ruling she gave may be described as terse.
However, it was by any standard a particularly straight forward case which was more than adequately dealt with by the judge in her ruling.
Accordingly, Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, said the appeal failed and it was dismissed by the court.
The judge said the debate on the admissibility of opinion evidence gave rise to an interesting debate on whether the confiscation inquiry forms part of the sentencing process or not and whether the rules on admissibility of evidence in criminal trials applied.
Mr Costelloe submitted that the inquiry did form part of the sentencing process and he relied upon the authority of the European Court of Human Rights case of Phillips v U, in which “millions” of pounds was confiscated.
“Not so says Mr (Dominic) McGinn” SC for the Director of Public Prosecutions, Mr Justice Birmingham said, before adding that the language of section 4 put the matter beyond argument.
It states that where a person has been sentenced or otherwise dealt with by a court, the court shall determine whether the person has benefited from drug trafficking.