Court of Criminal Appeal quashes firearms conviction due to refusal to consider adjournment for legal representation.

COURT OF CRIMINAL APPEAL

18/03

McCracken J

Murphy J

Herbert J

Between:

Director of Public Prosecutions

Prosecutor/Respondent

AND

Mark Desmond

Accused/Appellant

Judgment of the Court delivered by McCracken J on the 3rd day of December 2004.

___________________________________________________________

The Charges

The Applicant appeals against his conviction on four charges of offences under the Firearms Acts. The first two counts

allege:-

“(1) Mark Desmond, on a date between the 1st of October 1999 and the 17th February 2000, at 104 Lally Road,

Ballyfermot, Dublin 10, had in his possession four firearms with intent by means thereof to endanger life or

cause serious injury to property or to enable any other person so to do contrary to section 15 of the Firearms

Act, 1925 as amended.

(2) Mark Desmond, on a date between the 1st October 1999 and the 17th February 2000, at 104 Lally Road,

Ballyfermot, Dublin 10, had in his possession four firearms in circumstances giving rise to a reasonable inference

that he did not have the same in his possession for a lawful purpose contrary to section 27(A) of the Firearms

Act 1964 as amended.”

There were two other identical charges in relation to the possession of ammunition.

The Background

In the course of investigating the murder of two young men whose bodies were found in the Grand Canal near Robertstown,

County Kildare, in January 2000, in pursuance of a warrant issued under section 29 of the Offences Against the State Act

1939, the gardaí conducted a search of premises at 104 Lally Road, Ballyfermot on 17th February 2000. In the course of

the search they discovered three firearms, discharged shotgun cartridges and undischarged ammunition. Subsequently a

further firearm was found in Clondalkin by a member of the public.

On 10th June 2000 the Applicant was arrested under section 30 of the Offences Against the State Act 1939 on suspicion of

being unlawfully in possession of the firearms and on 12th June 2000 he was released from detention under section 30 and

was immediately rearrested and charged with the murder of Darren Carey and Patrick Murray, and on the same date was

remanded in custody by the District Court pending his trial on the murder charges. At that stage he was not charged with

any firearms offences.

On 21st May 2001 a book of evidence was served on the Applicant and on his solicitors. On the Applicant’s request,

depositions were taken before District Judge Lucey on 6th and 14th September 2001 from two of the witnesses in the book

of evidence, namely Jonathan Desmond and Rachel Stevens. At these hearings the Applicant was represented by Mr Leo

Morrison, a solicitor from Belfast and Mr James Johnston BL of the Northern Ireland Bar.

On 8th November 2001 the case was listed before District Judge O’Neill, where the Applicant had the same representation.

The District Judge made an order returning the Applicant for trial to the Central Criminal Court on the two charges of

murder and ultimately the case was fixed for hearing before the Central Criminal Court on 18th November 2002.

On 25th October 2002 the Applicant’s solicitor was served with an indictment containing six counts, namely the two counts

of murder and the four counts in relation to firearms.

On 18th November 2002, the date for the hearing of the prosecution, but before a jury was empanelled, Counsel for the

respondent told Counsel for the Applicant that the Respondent was no longer proceeding in relation to the murder charges,

and that it was intended to proceed only on an amended indictment containing the firearms charges. At this stage the

Applicant was represented by Mr Morrison, Solicitor, Mr Neil Murray QC of the Scottish Bar and Mr Shay Fleming of the

Irish Bar. Before he was arraigned or a jury was empanelled the Applicant discharged his legal advisors in circumstances

which will be described in more detail subsequently in this judgment, and he sought an adjournment which was refused.

Grounds of Appeal

Various grounds of appeal were put forward in the original notice of appeal and in two amendments thereto which have

been allowed by the Court, but in summary the Applicant seeks leave to appeal on four grounds. They are:-

1 That the learned trial Judge did not properly direct the jury as to the necessary element of intent required for

conviction under section 15 of the Firearms Act 1925 as amended.

2 That there was no, or no sufficient, evidence on which the jury could have found the necessary intent under

section 15 of the Firearms Act 1925 as amended.

3 That the indictment upon which the trial ultimately proceeded was not properly before the Court.

4 That the refusal to grant an adjournment was a breach of the Applicant’s right to a fair trial.

The Charge as to Intent

At a fairly early stage in his charge the learned trial Judge gave a very brief explanation of the necessary intent. He said:-

“Intent virtually speaks for itself. You can gather from the circumstances through the evidence as to whether

or not there exists sufficient material for you to believe that, if there was possession, the possession was for

purposes of intent. Now, the intent, ladies and gentlemen, in count number one is to endanger life or cause

serious injury to property or to enable any other person to do so. And that is also the intent that is specified in

count number three.

I will come back at the end of my review of the evidence and tell you what evidence there exists, in my view,

under this heading of “Intent”, that might be of assistance to you in that regard.”

The learned trial Judge did indeed come back to the question of intent. What he did was to refer to four items from the

evidence, which he said, if accepted, would be evidence of intent at that stage. However, following a requisition, the jury

were recalled and the trial Judge told them:-

“With regard to the issue paper. As I have told you, you will see four counts on it. Count number one and

count number three have within them the possession and intent that I was speaking about. I should have

informed you that at the time of possession the intent thereof to endanger life also has to exist if and when the

occasion occurred. The manifestation does not have to take place at the same time but the intent to endanger

life has to be present at the time of possession.”

Counsel for the Applicant argues that the initial charge was inadequate, particularly in that it did not explain the necessary

element of mens rea, and that reciting evidence without explaining this is simply confusing to the jury. To some extent, the

Court accepts this criticism. Where an offence involves proof of a particular state of mind or a specific intent on the part of

an accused person, the obligation on the prosecution to establish the existence of that specific intent beyond reasonable

doubt should be explained by the trial Judge to the jury. Intention should be defined with some precision, while, so far as

possible, avoiding the complex moral, philosophical and sociological issues which have come to surround the concept of

“mens rea”. But the Court is satisfied that any shortcomings in the charge with regard to the question of intent were not

such as would render the decision of the jury unsafe. In particular any confusion which may have been caused by the recital

of evidence, have been remedied by the direction to the jury following the requisition. There might well have been confusion

in the minds of the jury as to when the intent had to be present from the examples given from the evidence, but the Court is

quite satisfied that the passage quoted above from the direction following the requisition makes it quite clear to the jury that

the intent must exist when the unlawful possession took place, but that the jury may rely on matters which occurred at other

times to show the intent. In the event, the Court is quite satisfied that the charge adequate.

Evidence of Intent

In the People (Director of Public Prosecutions) v. Farrell [1993] ILRM 743 the Court, after citing a passage from the

judgment of O’Higgins C.J. in People (DPP) v. Madden [1977] IR 366 said at page 746:-

“Of the separate parts of its function referred to in that passage, the only one that is relevant on this appeal is

the last, namely, “to consider whether any inferences of fact drawn by the court of trial can properly be

supported by the evidence”. This is what the court has to do on this appeal. The Special Criminal Court’s

conclusion that the applicant’s possession of the shotguns with intent to endanger life is an inference which it

drew from the evidence. This quest is to determine if that inference is supported by the evidence.”

In the present case the learned trial Judge pointed out to the jury four pieces of evidence which, if accepted, would be

evidence of intent. Two of these instances of which evidence was given involved threats by the Applicant to kill somebody,

the third was evidence that the Applicant had actually discharged two shots on another occasion, and the fourth was that the

jury could have regard to the variety of weapons that were found, including a balaclava, and the circumstances of the

concealment.

Intent is a state of mind, and in the absence of an actual admission of intent, a jury can only determine the existence of

intent by inference. The Court is quite satisfied that the four examples taken from the evidence by the learned trial Judge,

particularly if they were all accepted by the jury, constituted ample evidence upon which the jury were entitled to find that

the necessary intent existed.

The Amended Indictment

The original indictment, upon which the Applicant was returned for trial, only contained two charges of murder. An

amended indictment, adding the four firearms charges, was served some three weeks before the trial, and the ultimate

indictment, which only contained the firearm charges, was served on the morning of the trial.

Section 18 of the Criminal Procedure Act 1967 provides:-

“Where a person has been sent forward for trial under this part the indictment against him may include, either

in substitution for or in addition to counts charging the offence for which he is being sent forward, any counts

founded on any of the documents (including any depositions and any statement taken under section 7) and

exhibits considered by the justice at the preliminary examination, being counts which may lawfully be joined

in the same indictment.”

It is not suggested on behalf of the Applicant that the charges in the final form of the indictment were not founded on

statements or documents contained in the book of evidence. It was argued that the leave of the Court ought to have been

obtained before the new indictment was filed, but this Court considers that section 18 gives an absolute right to amend the

indictment without any requirement for leave of the Court. This Court is satisfied that the Respondent was entitled to make

this amendment. It should also be pointed out that the amended indictment which was filed on the morning of the trial was

solely in ease of the Applicant, to ensure that there would be no reference to the murder charges which were not being

proceeded with.

Refusal to Adjourn

The circumstances of this case are most unusual in that the Respondent chose to withdraw two charges of murder on the

morning of the trial and apparently without any prior indication either to his own Counsel or to Counsel for the Applicant.

The remaining charges were considerably lesser charges which would normally be heard in the Circuit Criminal Court,

although this Court is quite satisfied that, once the Applicant had been returned for trial on the murder charges, it was open

to the Central Criminal Court to hear the subsidiary charges, even though they were the only charges left. The Applicant

expressed the views that these circumstances amounted to something in the nature of a conspiracy against him to force him

to plead guilty to the firearms charges, and alleged that this was in effect a plea bargain that the Respondent would drop the

murder charges in return for a guilty plea to the firearms charges. This Court is quite satisfied that there was no such plea

bargain, but it was alleged on several occasions in the Applicant’s submissions to the learned trial Judge that he had been

advised to plead guilty to the firearms charges. This may well be so, although this Court is satisfied that, if such advice were

given, it was not part of a plea bargain, and indeed that is evidenced by the fact that the murder charges remained dropped,

notwithstanding the fact that the Applicant did not plead guilty to the firearms charges.

To deal with the Applicant’s case under this heading, it is necessary to consider in some detail the events which actually

occurred on 18th November 2002, the date fixed for the trial, and on the following day. On that day the Judge in charge of

the list for the Central Criminal Court, was responsible for empanelling juries and allotting the trials to the several Judges

sitting in the Central Criminal Court. He was not necessary the Judge to hear the case, and in the event did not do so. When

the case was called, the Applicant’s solicitor informed the Judge that a jury would be required, thereby indicating that the

case was going on, and in reply to the Judge told him he thought the case would last between three and four days. Counsel

for the Respondent agreed with this estimate. At this stage the Applicant interrupted and alleged he was being offered deals

and said that he did not wish Mr Neil Murray QC to represent him now. Mr Murray then suggested that the Applicant might

be arraigned and a jury empanelled, and then he might have some discussion with Counsel for the Respondent. The learned

Judge responded:-

“Well, I have a number of other juries to empanel. Do you want to continue your discussions while I do that

and impress on Mr Desmond that there is a no adjournment rule in this court. If he makes it impossible for

you to continue, he will be doing the case himself.”

Following an interruption by the Applicant, the learned Judge said:-

“Alright, discuss the matter with your client and I will proceed with the arraignment in another case. But the

case is going on. Have no doubt about that.”

The Applicant replied that he would represent himself. After a short adjournment, the parties came back into Court and the

Applicant informed the learned Judge that he had dismissed his legal Counsel, to which the learned Judge responded:-

“Well, a jury is now about to be sworn for your trial and the trial is going on. There is a no adjournment rule

in this court, so are you ready to have a jury sworn?”

At this stage, the Applicant, for the first time, sought an adjournment on the basis that he was now indicted on a different

indictment than the one he had had when he came into Court, and he was told that “the case is proceeding”. He was then

told that the trial was going on and that the learned Judge was swearing a jury, to which the Applicant responded that he

would like to be heard. At this stage Mr Neil Murray QC confirmed to the Court that his instructions had been withdrawn

and that, as he put it, “the accused has been given certain advices, into which I will not go unless your lordship wishes

me to”. The learned Judge quite rightly said he did not want to know about the advices and continued:-

“Very well. Well, the less you say the better, Mr Murray, because the jury panel are here and what I have been

explaining to your client is that there is a no adjournment rule in this court. I am now about to empanel a jury

to try him.”

The learned Judge then allowed the Applicant to address him, but warned him he was doing it in the presence of the jury

panel. The Applicant then addressed the learned Judge and sought an adjournment to get a new Counsel to advise him. He

repeated that he had been offered a deal and was being pressured into pleading guilty to the firearms charges. He then again

sought an adjournment “to have a proper consultation with a new legal team who seek to represent me in the interests of

justice and fair procedures”. The learned Judge in response said:-

“You were returned to trial on 8th November 2001 and you had a legal team this morning whom you have

discharged. The discharging of a legal team is generally the hallmark of somebody playing ducks and drakes

with the court. There is a no adjournment rule in this court. You have taken it upon yourself to discharge your

legal team one year after your return for trial.”

At this stage, a jury was empanelled and the learned Judge indicated that the trial was being sent to be heard before

McKechnie J., and commented:-

“He is, of course, an independent judge. I have no control over any decision made by McKechnie J. but I wish

it to be conveyed to him that I have found all the hallmarks of somebody playing ducks and drakes with the

court and I have directed that this case proceed and that there be no adjournment of it.”

He later directed that McKechnie J. should be furnished with a transcript of that day’s proceedings “so that he can have

knowledge of the game of ducks and drakes that is going on”.

After some further discussions, the learned Judge said to the Applicant:-

“The reason you are not legally represented at the moment is because you discharged your legal team this

morning. You had a legal team. You went to the trouble of selecting a legal team from two other jurisdictions,

Scotland and Northern Ireland. That of itself is a hallmark of somebody playing ducks and drakes with the

court… a second hallmark of somebody playing ducks and drakes with the court is discharging your legal

team on the day of the trial. You have had one year since return for trial to prepare. If you case does not go on

now, with the current backlog in this court, it goes back a period of seventeen months.”

The learned Judge then reiterated that he was directing that the transcript of the proceedings should be furnished to

McKechnie J. “so that he has the foundation for him for my finding that a game of ducks and drakes is being played in

this court”.

This Court accepts that the granting or refusing of an application for an adjournment pre-eminently is a matter for the

discretion of the judge to whom the application is made. An appeal court is always extremely reluctant to deal with or

comment on the exercise of such discretion. However, the relevant discretion can only be exercised when the application has

been made and the arguments have been heard and considered. If an application is made and refused at the discretion of the

Court, such refusal must be based on the facts of the particular case and the submissions made to a judge. Every application

for an adjournment at whatever stage of the criminal process must be considered on its own merits. An application for an

adjournment after the accused person has dispensed with the services of his or her legal advisors and just as a jury is about

to be empanelled to try the case should attract rigorous scrutiny. The Court will consider such matters as whether this was a

first such application, the reasons given for seeking an adjournment, remembering that the accused person does not have to

disclose any aspect of his or her defence, the extent to which the accused person has contributed to his or her being unable

to proceed, the balance between the constitutional rights of the accused to fair procedures and the right of the people to have

offences tried expeditiously, the risk of unfairness to the accused if an adjournment should be denied, which will involve

consideration of the nature and gravity of the charges, the complexity of the law involved, the seriousness to the accused of

a conviction, the character and education of the accused person and other matters. The Court must also consider the

disruption of Court business the effect such an adjournment would have, (if any) on other trials pending before the Court,

the length of the adjournment sought or actually necessary and other considerations which will vary with each application.

The foregoing are not to be regarded as rules or principles or even guidelines, they are no more than an indication of the sort

of issues which may fall to be considered and so ought to be considered when an application for an adjournment of a

criminal trial is sought. If these matters are not considered, then the discretion has not been properly exercised.

This Court would like to make it quite clear that there is not, nor could there be in the interests of justice, a “no

adjournment rule” in the Central Criminal Court. Such a rule, were it to exist, would be contrary to all principles of

constitutional and natural justice. It should also be said that had this case been heard since 31st December 2003, being the

date when the provisions of the European Convention on Human Rights Act 2003 became operative, on an application for

an adjournment such as in the present case the Court would have to be mindful of the rights of the accused seeking an

adjournment under Article 6 of the first schedule to that Act, and decisions such as Quaranta v. Switzerland. There can be

no element of punishment involved in considering whether to grant an adjournment or as to the consequences of an

adjournment being granted, the Court is solely concerned with the balance of justice. Unfortunately the learned Judge in the

present case pronounced such a rule before an application was even made for an adjournment, and repeated it in different

forms on a number of occasions. It is quite clear that he did not consider the particular facts or arguments put forward by

the Applicant, and therefore did not exercise a discretion at all, but purported to apply a rule which could not be allowed to

stand.

This Court is also disturbed by the unfortunate reference to the instruction of legal advisors from outside the jurisdiction as

being of itself a hallmark of somebody “playing ducks and drakes with the Court”. The Court would like to make it quite

clear that it is the absolute right of any accused person to instruct any lawyer who is entitled to appear before the Courts of

this State, whatever be the jurisdiction in which they normally practice. An accused who chooses to instruct such legal

advisors should not be prejudiced in the conduct of his case before the Courts of this State.

Counsel for the Respondent makes the case that, whatever may have occurred on the first day of the trial, when it was sent

to McKechnie J. it was open to the Applicant to make a further application for an adjournment, and that he did in fact do

so. It should be pointed out that the Applicant only did so when, in the course of submissions to McKechnie J., he was

asked by the learned trial Judge whether he was applying for an adjournment, to which he replied that he was, to get legal

representation. The learned trial Judge refused the application on the basis that he had made a similar application the

previous day and that the learned Judge on that occasion had pointed out that the Central Criminal Court does not facilitate

adjournments and that he had legal representation until the previous morning when he decided to discharge his team. He also

said that the learned Judge the previous day had pointed out that the Applicant had been arraigned twelve months ago and

that the decision to discharge his legal representatives was his own decision. It appears to this Court that McKechnie J.,

perhaps quite understandably in the light of the comments of the learned Judge the previous day, did not really take it on

himself to exercise his discretion either. Indeed, it is arguable that, the application having been refused the previous day by

one Judge, in trenchant terms implying wrongful behaviour on the part of the Applicant, it would be extremely difficult for

McKechnie J. to do anything other than refuse the application.

Conclusion

The Court is satisfied that the refusal of either of the learned Judges to consider the Applicant’s application for an

adjournment prevented the Applicant from obtaining a fair trial in accordance with law, and was contrary to the principles of

constitutional and natural justice. The Court would like to emphasise that it is not saying that the application for the

adjournment ought to have been granted, as it was a matter within the discretion of the Judge having heard and considered

the relevant arguments, and there may be very many applications where adjournments ought to be refused. Indeed, this may

have been one such case. However, the Court considers it would be quite unsafe to allow the conviction to stand in the light

of the refusal to consider the application for the adjournment. This is particularly so as the jury, in the course of the

Applicant’s application for an adjournment had become aware of the fact that he had been charged with murder, which

undoubtedly may have influenced them against him. The Court recognises that this was due to the conduct of his case by

the Applicant himself, but nevertheless it is a matter which influences the Court to believe that it would be not safe to allow

the conviction to stand.

The Court rejects the other grounds of appeal put forward on behalf of the Applicant, but the Court will grant leave to

appeal on the basis of the refusal to consider the application for the adjournment and the Court would order a retrial.