Drugs: Man convicted on one count and cleared on the other
The Court of Appeal has rejected criticisms of his legal team by a man jailed for possessing cocaine with intent to supply.
It said counsel’s advice about the strength of the case against Reece David O’Flaherty was “accurate and realistic”.
Mr O’Flaherty was sentenced to 54 months in prison, having been acquitted of a second count for the same offence.
He appealed on the grounds that his counsel had given him “negative advice” on the prospects of acquittal prior to the start of the trial, and also “her timidity and passivity” before the judge, as well as the failure of his legal team to oppose the application to join the two separate indictments – which he said would have been successful and resulted in his being acquitted of both counts in separate trials.
He further criticised his legal team for not instructing expert evidence that would have aided his defence and claimed the judge was biased in favour of the prosecution.
Giving the court’s ruling, Mrs Justice Stacey said the criticisms of counsel were “misplaced”.
“It was her duty to give realistic advice to her client on pleas, particularly since shortly before trial the prosecution had indicated that they would accept a guilty plea for the lesser offence of allowing premises to be used and not pursue the possession with intent to supply charge.
“Although the evidence was largely circumstantial, counsel’s advice about the strength of the case against the applicant was accurate and realistic.”
Mr O’Flaherty had not identified “any inappropriate questions or behaviour in court by either prosecuting counsel or the judge that would have required an intervention by his counsel”.
Stacey J noted that the extent to which it was helpful for counsel to intervene “is very much a matter of professional discretion and can often be counterproductive”.
“It is rarely a good idea for counsel to have a direct confrontation with a judge, and is likely to hinder more than help a defendant in the eyes of the jury.
“There is nothing in the transcripts supplied with the appeal that would suggest that the applicant’s counsel should have challenged the judge or intervened more actively than she did.”
There was, the judge continued, “sufficient nexus” between the two offences to justify joinder and the judge gave “clear directions” to the jury about the need for separate consideration and the two limited ways (coincidence and propensity) in which the evidence in relation to one count could be used in considering the other.
“The fact that the jury acquitted the applicant of count 1 demonstrates that they followed the judge’s direction and did not hold against him their conclusion in relation to count 2.”
In relation to expert evidence on the contents of Mr O’Flaherty’s phone, Stacey J said it was not for him to prove the absence of incriminating data; it was for the prosecution to prove its case.
“The applicant’s counsel ensured that the important evidence, that his phone was clean was reduced to an agreed fact before the jury.
“It meant that the jury knew and had it in writing, that the applicant’s phone had been forensically examined and no messages relating to the supply of drugs were discovered on it. There is nothing that defence expert evidence could have added to assist the applicant at trial in relation to the phones.”
Finally, the jury directions and summing-up did not demonstrate “either actual or a perception of bias”.
Stacey J concluded: “There was clearly sufficient evidence before the jury to safely convict. There are no arguable grounds for appealing against conviction.”
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