O'Flaherty, R v.

Factual and Procedural Background

This opinion concerns a renewed application for leave to appeal against conviction following refusal by a single judge. The Applicant was convicted at the Crown Court sitting in The City before Judge Batty of possession with intent to supply a Class A drug, cocaine (count 2 of the trial indictment), and acquitted of a separate like count (count 1). The trial indictment was formed by the joinder of two separate indictments, counts 1 and 2 respectively, with other counts not affecting the Applicant. The Applicant was sentenced to 54 months’ imprisonment on the day of conviction.

The Applicant seeks an extension of time of 59 days for leave to appeal, bail, leave to call witnesses, and a representation order, explaining delay due to difficulty contacting legal counsel and negative advice received, leading to an unrepresented application.

The four grounds of appeal rely on alleged failings of the Applicant’s defence counsel, including negative pre-trial advice and timidity in court; failure to oppose joinder of indictments; failure to instruct expert evidence; and alleged bias by the trial judge in favour of the prosecution.

On 22 September 2019, the Applicant was arrested following a disturbance, with police recovering cocaine from a searched address under statutory powers (count 1). On 5 December 2022, the Applicant was arrested under investigation for count 1 and found driving over the limit. Police searched a hotel room associated with him under statutory powers, recovering diamorphine in multiple small bags and cash (count 2). DNA evidence linked the Applicant to some of the drug packaging, though it was unclear whether by direct or indirect contact.

The Applicant was interviewed under caution, exercised the right to silence except to explain the source of cash. The prosecution case was that the drugs found in the hotel room belonged to or were under the Applicant’s control, with intent to supply inferred from quantity and evidence including DNA, silence in interview, and hotel manager testimony. The Applicant denied possession or control, claiming he had given the hotel room key to an unnamed male who left the drugs there, explaining the DNA as transferred during a drug transaction. The jury was tasked with determining possession/control and intent to supply.

The Crown applied for joinder of the two indictments after arraignment on count 2; the application was unopposed and granted. The Applicant waived privilege and counsel provided detailed comments and advice on the grounds of appeal.

Legal Issues Presented

1. Whether the conduct of defence counsel amounted to ineffective assistance, specifically regarding pre-trial advice and courtroom advocacy.
2. Whether the joinder of the two indictments was improper and prejudicial to the Applicant.
3. Whether failure to obtain expert evidence before trial or admit fresh expert evidence constitutes grounds for appeal.
4. Whether the trial judge demonstrated actual or apparent bias in directions and summing-up.
5. Whether the application for extension of time for leave to appeal should be granted given delay and circumstances.

Arguments of the Parties

Appellant's Arguments

• Counsel gave overly negative advice on prospects of acquittal and was passive and timid before the judge during trial.
• Failure to oppose joinder of two indictments, which the Applicant contended would have led to acquittal if tried separately.
• Failure to instruct expert evidence that would have aided the defence and support an application to admit fresh evidence.
• Alleged bias by the trial judge in favour of the prosecution, reflected in legal directions and summary of evidence.
• Delay in applying for leave to appeal was caused by difficulty contacting solicitor and poor advice received.

Respondent's Arguments

The opinion does not contain a detailed account of the Respondent's legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court addressed each ground of appeal in turn:

• Ground 1: The court found the criticisms of defence counsel misplaced. It was appropriate for counsel to give realistic advice on plea options, especially given the prosecution's indication of a lesser plea offer shortly before trial. Counsel’s passivity in court was a matter of professional discretion; no inappropriate conduct by the judge or prosecution was identified that required intervention.
• Ground 2: Joinder of indictments was justified given the similar character of the offences (dealing Class A drugs), despite differences in drug type, dates, locations, and co-defendants. The court found sufficient nexus and no undue prejudice, noting the judge gave clear jury directions on separate consideration, and the jury’s acquittal on one count indicated directions were followed.
• Ground 3: The failure to obtain expert evidence was not fatal. The prosecution bore the burden to prove the case, and the defence ensured the jury was aware that the Applicant’s phone had been forensically examined with no incriminating evidence found. Additional expert evidence would not have assisted.
• Ground 4: Allegations of bias related to the judge’s handling of the Applicant naming a third party during evidence were unfounded. The judge’s conduct and interaction with counsel and prosecution was appropriate, and no prejudice arose since the Applicant was acquitted on the relevant count.
• The court found the jury directions and summing-up balanced, clear, and legally accurate, emphasizing the jury’s role as sole fact-finder and the judge’s neutrality.
• There was sufficient evidence to safely convict on count 2, and no arguable grounds for appeal. The fresh evidence application would not have altered the outcome. The bail application failed for lack of arguable grounds. Although the court would have granted an extension of time for delay, the absence of arguable appeal meant it was not in the interests of justice to do so.

Holding and Implications

The court REFUSED all applications, including the renewed application for leave to appeal against conviction, extension of time, bail, leave to call witnesses, and representation order.

The direct effect is that the Applicant’s conviction and sentence stand unchanged. No new precedent was established by this decision, and the refusal underscores the importance of realistic legal advice, proper joinder principles, and the sufficiency of evidence standards in appeals against conviction.