Corkman who successfully appealed cactus drug conviction to face re-trial

Appeal court had heard there was 'vast uncertainty' over whether the dried extract from certain types of cacti plants which contain mescaline could be regarded as a controlled substance under current legislation

During his trial, the accused's lawyers claimed the powdered plant derivative found at his flat could be extracted from a cactus plant available in flower shops in Ireland. File picture

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, 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 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.

Retrial

At a hearing on Friday 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 said 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 said 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 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.

Testimony from appeal

Peter O’Flynn BL, defending, told the court there was “vast uncertainty” over whether the dried extract from certain types of cacti plants which contain mescaline could be regarded as a controlled substance under current legislation.

Mr O’Flynn said the substance his client had been found with was “a dried plant, no more”.

There were several types of cacti plant which contained mescaline and from which the prohibited drug could be extracted, counsel added.

“This plant is not controlled by the [Misuse of Drugs] Act,” he said.

He did concede, however, that there was a “mild effect” when the dried extract from some cacti was added to water and boiled before being consumed.

Dermot Sheehan BL, for the DPP, said the case involved a chemical called mescaline which has chemical formula.

“Mescaline is specified in the schedule and the evidence is the powder contained mescaline,” he said.

“The legislature, very wisely, has not sought to prohibit cacti,” Mr Sheehan continued. “They have sought to prohibit mescaline.

What we are dealing with here is dried plant material that clearly represents a product that contains mescaline.” 

“The trial judge was quite clear: mescaline is a controlled substance,” Mr Sheehan added.

Trial evidence

During his trial, Mr Rey’s lawyers claimed the powdered plant derivative found at his flat could be extracted from a cactus plant available in flower shops in Ireland.

To prove the point, Mr O’Flynn showed the jury a cactus which the defence purchased in a nearby shop for €35.

The State’s expert witness, counsel said, had agreed that the plant had contained mescaline.

Mr O’Flynn said the State could simply add any cactus containing mescaline to the list of prohibited substances.