Decision reserved in drugs conspiracy appeal

The Court of Criminal Appeal has reserved its decision in the appeal of a 26-year-old Dublin man jailed for eight years for conspiracy to possess cocaine.

David Timmons of Chapel Gate, Balbriggan was convicted by a jury at Dublin Circuit Criminal Court in December 2008 of conspiracy to possess cocaine worth around €600,000 on September 14, 2006. He received his sentence the following month.

Timmons, originally from Swords, was found guilty of conspiring with two other people to possess the 8.83kg of cocaine, which was hidden in a lorry load of quilts at Killane's Furniture Store outside Lusk.

Fergal Kavanagh SC argued on behalf of Timmons before Mrs Justice Fidelma Macken, presiding, sitting with Mr Justice John Edwards and Mr Justice Declan Budd.

He said that mobile phone evidence used in his client’s trial amounted to hearsay evidence.

Gardai had downloaded text messages from the appellant’s mobile phones. One, received in July 2006, read “Any snow bro?”, slang the gardaí believed related to cocaine.

Mr Kavanagh said there was no proof of receipt of this message.

He also said there was no proof that his client owned a notebook found in his former home, which contained a list of drug customers. No handwriting analysis or DNA checks were carried out on it.

He said neither item should have been admitted into evidence at the trial.

“The jury got no specific direction from the trial judge as to how they deal with this evidence,” he added.

Mr Kavanagh argued that evidence in the trial of an "elaborate police operation" regarding the surveillance of his client was prejudicial and not a necessary proof.

He went on to say that the trial judge failed to correctly charge the jury in relation to conspiracy. He asked where the evidence was that there was an agreement to possess drugs other than that drugs were found. Mental intention was required.

He said there was no evidence of contact between the other two men, other than that they were each in contact with his client. If each had agreements with his client, this could result in two separate conspiracies, but not one between them all, as outlined in the charge.

Mr Kavanagh raised the fact that the trial judge had refused his application to discharge the jury after some female jurors mentioned their unease at having to use the same lobby where the accused man was sitting with his family and friends. He said it was unclear as to whether some of these jurors felt intimidated by his family members looking at them.

“If it went that far, is it not reasonable to assume that a prejudice arose against the accused?” he asked. “In disallowing the application to discharge, the judge would have to be satisfied that no prejudice could arise. I say it’s not possible to reach that standard.”

He then mentioned that it wasn’t known if the jury discovered on the internet that his client’s co-accused had pleaded guilty to the same offence: Brian Thompson, 48, of Silverwell Road, Croxteth, Liverpool was given a five-year sentence in December 2007.

He said all parties had discussed asking the jury not to search the internet but feared this might lead them to do just that.

“We were left in a Catch-22,” he said.

However, Mr Kavanagh said he had worked on a case where the judge had ordered that such material be removed from the web for the duration of a trial.

Finally, Mr Kavanagh raised the issue of duplicity in the charge, saying that the authorities should have inserted in the charge either the words ‘for sale’ or ‘for supply’ but not ‘for sale or supply’. They should also have proven the drugs weren’t for personal consumption, he concluded.

The three judges adjourned their decision.