The Court of Criminal Appeal has quashed the conviction and ordered the retrial of a Clondalkin man accused of dealing heroin and cocaine.
Graham Dutton (aged 26) was jailed for 10 years by Judge Frank O’Donnell in July 2009, after a Dublin Circuit Criminal Court jury found him guilty of the possession of drugs valued at over €20,000 for sale or supply at Greenfort Lawns on October 21st, 2006.
His co-accused Karl Rafferty (aged 27) also received a 10-year sentence after pleading not guilty to five counts relating to the possession of drugs for sale or supply at the same address and on the same date.
During the garda raid on Rafferty’s home, it was alleged that Mr Dutton and Rafferty were both in an upstairs bedroom and that Mr Dutton was seen by one officer throwing bags out of a window which when retrieved later transpired to contain heroin.
At his trial the jury were invited to infer that Mr Dutton had in his possession not only the bags thrown out of the window containing heroin but also quantities of heroin and cocaine found in the pockets of Karl Rafferty.
The Court of Criminal appeal today determined that new evidence had arisen in the course of Mr Dutton’s appeal against his conviction and sentence and that the credibility of this new evidence should be decided upon by a jury.
At the outset of today’s appeal hearing counsel for the applicant, Ms Iseult O’Malley SC, put forward a motion to have fresh evidence adduced in the case.
She said Karl Rafferty had submitted a sworn affidavit, in which he stated that he was unaware Mr Dutton was in the house at Greenfort Lawns in Clondalkin on the night of October 21, 2006 and that Mr Dutton was not in the room with him where the drugs were found.
Ms O’Malley said that although Rafferty had already stated this in interview with gardaí, and that the memoranda of these interviews had gone before the jury, it constituted evidence in the trial of Karl Rafferty and not Graham Dutton and was therefore not technically available to Mr Dutton’s defence team.
Rafferty, who has a previous conviction for the possession of drugs, originally went so far as to claim that gardaí had planted the drugs on him, but later withdrew this allegation and now accepts the verdict of the jury on finding him guilty.
Ms O’Malley said that with regard to this evidence, the issue was not whether Rafferty was a person of credibility, but whether the evidence offered by him was capable of being believed by a jury in the context of a trial.
Mr Justice Nial Fennelly, presiding, said the court found that although the evidence given by Rafferty was technically before the jury “in one form or another”, in truth it could not be called upon by Mr Dutton’s defence during the trial.
He said it was not for the court to decide whether the evidence was to be believed or not but rather if it was capable of being believed and whether it would have created a reasonable doubt in the mind of the jury if it had been given in the course of the trial.
Mr Justice Fennelly said the court was satisfied that the case came within the very narrow and exceptional range of cases where new evidence should be admitted for the purposes of appeal.
He said that the court would allow Mr Dutton’s appeal on all counts and order a retrial.
Mr Justice Fennelly remanded Mr Dutton on bail under the conditions that he reside at his home address at Greenfort Lawns, sign on daily at Ronanstown Garda Station between 9am and 9pm, and observe a curfew between 10pm and 7am.