prickly issue Man who appealed conviction after being accused of growing drug cactus to face retrial

A man who successfully appealed a drugs conviction over dried cactus extract he was found with which contained mescaline is to face a retrial.

Alexander Rojas Rey (44), of River Towers, Lee Road, Cork city, had pleaded not guilty to being in possession of mescaline for sale or supply, contrary to section 15 of the Misuse of Drugs Act 1977, and to possessing the same drug, contrary to section 3 of the same act, at his home on January 23, 2018.

He was found guilty after a trial, however, and in November 2019 at Cork Circuit Criminal Court was given a community service order of 100 hours in lieu of 12 months’ imprisonment by Judge James McCourt.

He later appealed the conviction on the grounds that Judge McCourt had erred by “refusing to determine as a matter of law whether the substance the defendant was in possession of was a controlled drug as defined by the Misuse of Drugs act”.

It was further claimed that the judge should not have allowed the jury “to decide on a question of law as to whether the substance the appellant was in possession of” was prohibited under the legislation.

In a judgement delivered last month by Ms Justice Isobel Kennedy, the Court of Appeal quashed the conviction.

At a hearing today at the same court, Dermot Sheehan BL, for the Director of Public Prosecution (DPP), told Court President Mr Justice George Birmingham that the DPP intended to put Mr Rey forward for retrial.

Peter O’Flynn BL, for Mr Rey, said he had no objection to the DPP’s motion.

The case was adjourned to March 29.

In her judgement, Ms Justice Kennedy stated that the trial judge should not have permitted the jury to “decide a question of law whether the substance in the appellant’s possession was a controlled substance”.

“There is no criticism of the [judge’s] charge per se at the trial,” added the judge, who had heard Mr Rey’s appeal last December along with Mr Justice Birmingham and Mr Justice Patrick McCarthy.

However, Ms Justice Kennedy stated it was the court’s belief that Judge McCourt failed to inform the jury that “in order to determine whether this particular substance was mescaline, they had to decide if the powdered substance found had been extracted from its naturally occurring form and rendered useable”.

It was also noted Judge McCourt told the jury that the powder, according to the defence, “was not a controlled drug under the law”.

“Therefore, it was necessary for the judge to direct the jury that mescaline is a controlled substance (which he did) and the jury had to determine whether the substance in the appellant’s possession was in fact mescaline,” Ms Justice Kennedy observed.

“That is, whether the substance had been rendered consumable or ingestible by some alteration from its natural state.”

“However, when we look at the charge… the judge did leave to the jury, albeit in broad terms the issue as to whether the substance was a controlled drug,” she added.