Court of Criminal Appeal quashes violent disorder and firearm possession convictions due to jury misdirection on self-defence.

THE COURT OF CRIMINAL APPEAL

89/03

McCracken J

Lavan J

Abbot J

Between:

The People at the Suit of the Director of Public Prosecutions

Respondent

AND

Patrick “Rubber Og” O’Reilly

Applicant

Judgment of Court delivered by Mr Justice McCracken on the 30th day of July 2004

___________________________________________________________

The Applicant was convicted at Cork Circuit Criminal Court of four counts arising out of a serious disturbance at an

unofficial halting site at Mahon in Cork on the morning of 9th September 2000. These were:-

1 Possession of a firearm, namely a sawn off shotgun, for an unlawful purpose contrary to s. 27(A) of the

Firearms Act 1964.

2 Possession of a firearm without a certificate contrary to s.2 of the Firearms Act 1925.

3 Possession of ammunition without a certificate under the same Act.

4 Violent disorder contrary to s.15 of the Criminal Justice (Public Order) Act 1994.

The Applicant had been charged with four other offences arising out of the same disturbance. Two of those charges, which

related to discharging a firearm, were withdrawn from the jury by the learned trial Judge and the Applicant was found not

guilty by the jury of the remaining two charges which involved allegations of threats made to members of the gardaí.

The disturbance arose out of a long standing dispute between the Applicant’s extended family and members of the

McCarthy family who were living at an official halting site in Cork. It appears to have been triggered by a row at a function

the previous night. The Applicant was staying with his family in a caravan on the site at Mahon, as were a number of

members of his family. At about 8.30 in the morning of 9th September 2000 three or four car loads of members of the

McCarthy family arrived at the site with various kinds of weapons including slash hooks and hurleys. A fracas ensued which

was seen by a garda patrol car, and eventually a number of gardaí arrived and broke up the disturbance. When they arrived,

they saw the Applicant with a sawn-off shotgun in his hand, and he was threatening the McCarthy’s with it. He initially

refused to hand over the gun to the gardaí, but subsequently did so when an armed garda arrived.

There was only one serious dispute as to evidence. The Applicant claimed that he had heard a disturbance outside his

caravan, gone to the door and been confronted by a member of the McCarthy family with the gun, and that he had managed

to snatch the gun from this person, and then used it to defend himself. On the other hand, there was some evidence,

particularly from a video camera, that the Applicant had in fact got the gun from the back of a car outside his caravan at the

halting site.

Section 2 of the Firearms Act 1925 provides, inter alia, that:-

“It shall not be lawful for any person....to have in his possession, use or carry any firearm or ammunition save

insofar as such possession, use or carriage is authorised by a firearm certificate granted under this Act and

for the time being in force.”

This section creates an absolute offence once possession is established. The purpose for which the person may have

possession is irrelevant. Counsel for the Applicant has criticised the learned trial Judge’s charge in that it does not properly

differentiate between possession for the purpose of s.2 and possession for the purpose of s.27 of the 1964 Act, and there

may be some merit in that submission. However, insofar as the charges under the 1925 Act are concerned, the trial Judge’s

explanation of the word “possession” is in fact more than favourable to the accused as it includes the concept of control as

well as of possession. This Court is satisfied that the jury could not have been under any misconception in convicting the

Applicant under s.2 of the 1925 Act.

It is also submitted on behalf of the Applicant that the only “ammunition” found in his possession were spent cartridges,

and that this is not “ammunition” within the meaning of s.2 of the 1925 Act. In s.1(1) of that Act the word “ammunition”

is defined as:-

“Ammunition for a firearm but also includes grenades, bombs and other similar missiles whether the same are

or are not capable of being used with a firearm, and also includes any ingredient or component part of any

such ammunition or missile.”

This appears clearly to cover spent cartridges, which would be ammunition which is not capable of being used with a

firearm, and also to cover the shell of the cartridge even without any explosives or explosive device, as that shell would be

an ingredient or component part of ammunition. Accordingly, the Court is quite satisfied that the Applicant was correctly

convicted on Counts 2 and 3 of the indictment.

Although Counts 1 and 4 involve very different offences, it is a common element that acting in self-defence may constitute a

defence to both charges. Counsel for the Applicant argues that the learned trial Judge did not properly explain the legal

meaning of self-defence, and did not properly direct the jury in accordance with the provisions of s.18 of the Non Fatal

Offences Against the Person Act 1997.

Section 18(1) provides:-

18.—(1) The use of force by a person for any of the following purposes, if only such as is reasonable in the

circumstances as he or she believes them to be, does not constitute an offence:—

( a ) to protect himself or herself or a member of the family of that person or another from injury,

assault or detention caused by a criminal act.”

Section 1(2) of that Act provides:-

“(2) For the purposes of sections 17, 18 and 19 it is immaterial whether a belief is justified or not if it is

honestly held but the presence or absence of reasonable grounds for the belief is a matter to which the court or

the jury is to have regard, in conjunction with any other relevant matters, in considering whether the person

honestly held the belief.”

In DPP v. McGinty (unreported 3rd June 2003) the Court had to consider the test put by the trial judge to the jury:-

“Did Mr McGinty have reasonable grounds to believe that a needle or syringe was held by Jason?”

Keane CJ giving the judgment of this Court said at page 9 of the judgment:-

“But that is not what the section says, that is not the test which the section requires to be applied. What the

section requires the jury or the trier of fact to do is to have regard to the presence or absence of reasonable

grounds in concluding whether the person honestly believed that the methods he was using were reasonable in

the circumstances, that he had an honest belief that this was reasonable to protect himself from an

apprehended injury. It is admittedly a somewhat confusing test but it is the one the legislature has provided

for. The test is whether the applicant honestly believed (that is the essence of the defence) that the complainant

had a needle or syringe and in coming to that conclusion, the jury are entitled to have regard to the presence

or absence of reasonable grounds for the belief. That clearly leaves open the possibility that there may be no

reasonable objective grounds for the belief that the jury can see, because it may simply depend, of course, on

their view of the defendant’s evidence. If that evidence is such as to leave them under a reasonable doubt as to

whether the prosecution have excluded the possibility of a defence of honest belief that an assault as going to

take place and that he amount of force used was reasonable, then the defendant is entitled to an acquittal.”

In the present case, while the learned trial Judge did say:-

“You were entitled to use reasonable force to defend yourself. Now all of this of course only relates to the

McCarthy’s. If you believe he did things against the guards it may not arise, but just in a general concept you

can use reasonable force to defend yourself and you look at the force that is used from the point of view of the

man using it.”

Unfortunately, however, he went on to try to explain self-defence as being something which is proportionate with the threat

used against you, and as being a question of balance. He said:-

“You can do a reasonable amount to protect yourself. You can’t go overboard, and in this case if you believe

he got it from one of the McCarthy’s, did he do what was reasonable, and did he do it for no longer that was

reasonable. In other words, you have to meet up with the evidence, once the guards arrived and established

themselves, even if he got it from the McCarthy’s, did he hold onto it in a manner and in a way for simply too

long.”

In dealing with the charge of violent disorder, the learned trial Judge initially made no mention of self-defence at all. On

being asked to requisition the jury he did say:-

“There is one thing that I forgot – there is a few things having thought about it I want to reaffirm. In relation

to the violent disorder it is only violent disorder if it is unlawful violence. In other words, if you were doing

something to protect yourself, that is not unlawful violence if it is reasonable and you use it in proportion.”

Subsequently, the jury returned and asked the learned trial Judge to redefine violent disorder. In the course of doing so he

said:-

“So you have to have three or more people present together offering force or the threat of unlawful violence.

That means that if I am defending myself it is not unlawful violence …”

No where did the learned trial Judge refer to s.18 of the 1997 Act, either expressly or by paraphrasing its provisions. Quite

clearly the test to be applied, whether it be to the offence under Count 1 or under Count 4, is a subjective test. It is not a

question of whether the jury objectively believed that the Applicant was acting in genuine self-defence, it is a question of

whether the Applicant honestly held that belief. In assessing this, the jury may have regard to whether there was a

reasonable ground for the belief, but that is not the deciding factor and is made quite clear in s.1(2) of the Act.

Unfortunately, the learned trial Judge failed to make this clear to the jury in the present case.

Counsel for the Respondent argues that, as no specific requisition was raised in relation to self-defence, the Applicant ought

not to be allowed to rely on defects in the charge in that regard. Whilst certainly the failure to make a requisition is a matter

which may be taken into account in this Court in considering an appeal, particularly in cases where the failure to requisition

may possibly have been a technical decision, in our view such considerations do not apply to the present case. The question

of self-defence is absolutely central to the guilt or innocence of the Applicant, and if this Court is of the view that a jury may

have been under a misapprehension in convicting the Applicant then justice requires that the absence of a requisition ought

not to prejudice the Applicant’s rights.

Accordingly, the Court will grant leave to appeal conviction in this case and affirm the Applicant’s conviction on Counts 2

and 3 of the indictment but will quash the conviction on Counts 1 and 4 and order a retrial.