Court of Criminal Appeal dismisses appeal against conviction and sentence for unlawful firearm possession due to serious criminal record.

COURT OF CRIMINAL APPEAL

CCA Record No: 231/09

Fennelly J.

Moriarty J.

Hanna J.

BETWEEN:

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

V

EUGENE KELLY

APPLICANT

Judgment of the Court of Criminal Appeal delivered the 29th day of June 2012 by Mr Justice Fennelly

1. This is an application for leave to appeal against conviction and sentence.

2. The Applicant was convicted on the 23rd July, 2009 by the Special Criminal Court on two counts of unlawful possession of,

respectively, a firearm and ammunition in such circumstances as to give rise to a reasonable inference that he did not have them in

his possession for a lawful purpose. The charges were laid as being contrary to section 27A(1) of the Firearms Act 1964 as

substituted by section 59 of the Criminal Justice Act 2006 and as amended by s. 38 of the Criminal Justice Act 2007.

3. The offences were alleged to have been committed on 19th July 2008 in the car-park of the Claret Pub, Castletown Road, Dundalk,

County Louth.

4. The firearm was an Austrian-made Glock model 26, semi-automatic pistol in very good condition. It had an overall length of 165

millimetres and a barrel length of 82 millimetres. It weighed .605 of a kilo. Its serial number had been deliberately obliterated. The

ammunition was fifty rounds of 9 millimetre parabellum calibre, designed for use with firearms of the type of the Glock pistol. All were

in good condition and suitable for use. It was not contested that the Applicant received the pistol and ammunition at the date and

place alleged, but it was contained in a mobile phone box. The Applicant denied that there was any or any sufficient evidence that he

had knowledge of the contents of the box.

5. The Applicant was tried by the Special Criminal Court over five days ending on 14th July 2009. The Special Criminal Court delivered

judgment convicting the Applicant on both counts on 23rd July 2009.

6. On the 29th July, 2009, the Court sentenced the Applicant to ten years imprisonment in respect of both charges to run

concurrently dated from 19th July, 2008. The Court refused leave to appeal against both conviction and sentence. This judgment will

deal, in the first instance, with the appeal against conviction. Then it will deal with sentence.

7. The Applicant has put forward the following grounds for saying that the Special Criminal Court erred in deciding to convict him,

namely that it erred

1. in admitting the Applicant’s mobile telephone into evidence, because there was no lawful authority or power invoked

prior to the search of the accused and the subsequent seizure of his telephone;

2. in refusing to accede to an application for a direction when the facts of the prosecution case failed to exclude

reasonable hypotheses other than the guilt of the Applicant;

3. in failing to give reasons for its refusal of the application for a direction;

4. in drawing inferences that the accused had lied to conceal his guilt and failing, in particular properly to consider that

the accused might have made false or misleading statements for a reason other than his guilt, in particular, fear for his

life;

5. in holding that the evidence established beyond reasonable doubt the essential proof of the knowledge of the

Applicant, namely that the mobile phone box contained a firearm and ammunition.

Facts surrounding the offences

8. On the 19th July, 2008, members of An Garda Síochána, acting on confidential information, mounted a surveillance operation in

order to observe the car-park of the Claret Pub, Castletown Road, Dundalk, County Louth. There were members from Dublin and from

Dundalk.

9. The principal witness at the trial was Detective Sergeant Thomas Healy, from Garda Headquarters in Dublin. He was sent to

Dundalk on that day. He drove into and parked in an area beside the Claret Pub car-park at 1:32 pm. He saw a navy Audi A6, driven

by Thomas Kelly, which was parked in the car-park. After a minute or two he saw a black Toyota Yaris being driven into the car-park

and being parked. The cars were parked back to back facing away from each other and five to ten yards apart.

10. The Yaris was being driven by Noleen O’Hanlon, the Applicant’s partner. The Applicant was a front seat passenger. After a matter

of seconds, at 1:34, Thomas Kelly got out of the driver’s seat of the navy Audi A6, carrying a small orange and white box. It was a

box for containing a mobile telephone. He walked towards the Yaris and handed the box in the window of the front passenger seat to

the Applicant and walked away immediately. He did not appear to engage in any conversation whatever. It was a very swift

handover.

11. Detective Sergeant Thomas Healy was in radio contact with other gardaí involved in the operation. Detective Sergeant Brona

Bergin, also from Dublin, was in charge of a team of gardaí and observed the residence of the Applicant and observed the movements

of the Yaris car. She saw it drive into the car-park. She was informed by Detective Sergeant Thomas Healy that a package had been

handed over. She decided that the cars were not to be allowed to leave the car-park. She intercepted Thomas Kelly.

12. As the two cars were leaving the car-park, they were intercepted by members of An Garda Síochána. Detective Sergeant Vincent

Byrne, who was waiting at the other side of the road, crossed with his firearm drawn and stopped the Yaris. He was shouting: “armed

gardaí; stop.” He told both the driver and the passenger, who was the Applicant, to step out. He was assisted by other members. He

got the Applicant to lie face down on the ground. He then looked into the passenger footwell area, where he immediately saw a

Meteor phone box. In this he could see an automatic pistol and ammunition. The cover was open. It was put to him in cross-

examination that the box was not open when the Applicant was taken out of the car and that he had opened the box, but he denied

those suggestions.

13. Detective Sergeant Daniel O’Driscoll assisted in arresting and securing the Applicant on the ground. He then went to the Yaris car

and saw the box in the footwell. It had been torn open. He could clearly see that there was a pistol in it. He also denied a defence

suggestion that he had opened it. Detective Sergeant Pender, who arrived on the scene after the Applicant had been placed on the

ground, also gave evidence of seeing the open box and the pistol.

Evidence regarding arrest and search

14. When the Yaris was searched, members of An Garda Síochána found an orange and white box for a mobile telephone. The box was

found to contain a Glock pistol and 50 rounds of ammunition. There were fingerprints from Thomas Kelly, but not of the Applicant on

the mobile phone box which contained the pistol and ammunition.

15. Detective Garda Pender arrested the Applicant under section 30 of the Offences against the State Act, 1939 and brought him to

Dundalk Garda Station, where he arrived at 2 pm. He was there introduced to Garda Nuala McQuade. He informed her that the

Applicant had been arrested on suspicion of possession of a firearm. The Applicant’s details were entered in the custody record and

he was given a notice setting out his rights, which he refused to sign.

16. Garda McQuade was responsible for carrying out the statutory procedures. At the Applicant’s request, she made attempts to

contact a solicitor, without success. She attempted to contact nine different solicitors. Garda McQuade asked Garda Fallon to search

the Applicant. Garda Fallon, in the presence of Garda McQuade, asked the Applicant to take any property he had from his pockets.

The Applicant took from his pockets some cash, notes and coins, a wallet and a Nokia mobile phone. It did not become necessary to

search him physically. All the items produced by the Applicant were taken from him for safe-keeping. The Applicant was informed of

this. Garda McQuade described this as “the normal procedure.” She agreed that the search was not carried out in pursuance of any

statutory provision. The property was being kept as he was in garda custody. The items were placed in a safe and an entry was

made to that effect at 2.33 pm.

17. The gardaí did not purport to exercise any statutory power in searching the Applicant and taking possession of his property. Garda

McQuade handed the mobile phone to Garda Mohan at 3.35 pm.

18. Sergeant Liam Archibold of Dundalk Garda Station conducted a technical examination of the mobile phone taken from the Applicant

as well as that which had been taken from Thomas Kelly, the driver of the second motor car. Evidence was also given by the

investigations and security manager of the company which provided the mobile phone service for the two mobile phones.

19. By this evidence it was established that there were three incidents of contact between the mobile phones of Thomas Kelly and

the Applicant in the period immediately before their meeting in the car park of the Claret Pub on 19th July 2008. They were as follows:

• at 13:17 the Applicant’s mobile missed a call from the mobile phone of Thomas Kelly;

• at 13:27.27 a telephone call of 43 seconds duration was made from the mobile of Thomas Kelly to that of the Applicant.

• at 13:32, a text message was received from Thomas Kelly’s mobile and appeared on that of the Applicant as follows: “I

am here, mate;”

20. The Applicant was interviewed by the gardaí in Dundalk Garda Station commencing at 6:40 pm on the same evening. He was

asked if he had received any phone calls and said he did not think so. He was asked if he knew Thomas Kelly and said he did not know

him at all. Asked if he had received any phone call from him, he said that he did not “know the chap.” He was asked why he had

driven to the car park. He said that he “had to see some fellow to pick up a mobile phone,” but did not know his name. He had been

told that he would meet him there, i.e., at the car park. He would not say who had told him to meet the other man and said that he

was in fear for his life. He said his instructions had been to go to Fagan’s pub and pick up a mobile phone. He maintained this account

in a later interview. He said he was just given a box, a mobile phone. He agreed with a garda question that he had been in Fagan’s

car park to collect a mobile phone from someone he did not know from someone he would not say. Asked what he had been going to

do with the package, he said that he did not want to say. Similarly, he did not wish to say who it was for.

21. Counsel for the Applicant objected at the trial to the admission into evidence of the account of the three incidents of contact

between the mobile phones of the Applicant and of Thomas Kelly. He submitted that there was no lawful justification for the search of

the Applicant and the seizure and retention of the mobile phone. Although s. 30 of the Act of 1939 confers a power to search a

person who has been arrested under the section, this power was not exercised. There was, in fact, no evidence before the court as

to the origin of the power of search. Nor was the Applicant informed of any legal justification for the search.

22. Counsel for the Director referred to the power of search under s. 30 but also pointed out that there is a power of search when a

person is arrested at common law. He also pointed out that the Applicant had not objected to the search. The garda officer had

power to search both at common law and under the Act. It was proper to detain the mobile phone in the belief that it might contain

evidence in respect of the charge for which the Applicant had been arrested. Counsel relied on s. 9(1) of the Criminal Law Act, to

justify seizure of any items of property taken in the course of a lawful search.

23. The Special Criminal Court ruled that the evidence was admissible. It was of crucial importance, it said, that the Applicant had not

objected to the seizure of his telephone: there was no evidence of absence of consent. This, it held was the touchstone. It held, by

reference to the case of Director of Public Prosecutions v McFadden [2003] 2 I.R. 105, that a person could not be searched without

his consent without being informed of the legal justification for the search. It regarded the absence of consent as having been pivotal

to the decision in McFadden. It cited the decision of the Court of Criminal Appeal in Director of Public Prosecutions v O’Donnell [1995]

3 IR 551 for the proposition that it is only necessary to invoke legal powers of search when the subject of the search refuses to

cooperate. The court also referred to sections 7 of the Criminal Law Act, 1976 conferring power on a member of the Garda Síochána

to search a person who is in custody under the provisions of s. 30 of the Act of 1939 and to s. 9 of that Act conferring power to

seize and retain of items found in the course of search.

24. Counsel for the Applicant applied to the Special Criminal Court at the conclusion of the prosecution case for a ruling that the

Applicant had no case to answer and for a direction of acquittal. He argued that the case was in the category where no reasonable

jury properly charged could convict. Knowledge that what was in the box was a firearm was essential. There was no admission in

relation to any knowledge or suspicion. The Applicant had provided an explanation which could reasonably be true for his possession

of the firearm.

25. The court rejected the application. Pressed by counsel to give its reasons, it said: “No, not at this stage.”

26. The defence did not go into evidence. Following closing submissions, the court delivered its judgment on 23rd July 2009.

27. In the course of its judgment it dealt with the application for a direction of no case to answer. It referred to the test laid down in

R v Galbraith [1981] 1 W.L.R.] 1039. The court said that the nature of the prosecution case had been entirely evident and that a

detailed ruling had not been necessary. The issue was whether the prosecution case as to intent, knowledge or awareness on the

part of the accused at its height, if accepted, could establish the commission of the offences with which the Applicant was charged.

Applying that test the court considered that the prosecution evidence could prove the offences.

28. On the question of the guilt of the Applicant the court defined the key issue as being whether the Applicant possessed or

controlled the firearm or ammunition in circumstances which gave rise to the reasonable inference that he did not possess them for a

lawful purpose, which had to be proved beyond reasonable doubt. It posed the question whether any explanation tendered by the

Applicant was equally consistent with innocence. It concluded on the evidence beyond reasonable doubt that the box had not been

opened by members of An Garda Síochána and therefore had been opened beforehand so as to allow the Applicant to be aware of

what he had in his possession. The transaction was not in any way a usual one. An arrangement had been made by an unnamed

person to pick up what was described as a mobile phone in a car park and to give it to an unnamed person. No payment was made.

The Applicant had been quite specific in saying that he did not wish to explain the transaction.

29. The court noted the Applicant’s denials to the gardaí that he had made or could remember making or receiving any calls on his

mobile phone. It found that these answers were untruthful. These answers were given a matter of hours after the arrest and phone

contact in question. The only reasonable inference to draw was guilty knowledge. It found that the garda evidence of seeing the box

open in the footwell of the car was uncontradicted. It could not conclude that any explanation given by the Applicant was consistent

with innocence.

30. The court addressed to itself the warning based on R. v Lucas [1981] 1 Q.B. It found that the lies told by the Applicant were

deliberate. They related to a material issue. They were motivated by guilt and fear of the truth. There was no other conceivable

motivation. The court rejected any contention that an explanation had been given which was or might reasonably be true.

31. It concluded beyond reasonable doubt that there was guilty knowledge on the part of the Applicant.

32. The Applicant advances the following grounds of appeal.

1. that the Special Criminal Court erred in admitting the Applicant’s mobile telephone into evidence where there was no

lawful authority or power invoked prior to the search of the accused and the subsequent seizure of his telephone.

2. that the Special Criminal Court erred in refusing to accede to the application for a direction when inter alia the facts of

the prosecution case failed to exclude reasonable hypotheses other than the guilt of the Applicant.

3. that the Special Criminal Court erred in failing to give reasons for its refusal of the application for a direction.

4. that the Special Criminal Court erred in drawing inferences that the accused had lied to conceal his guilt.

5. that the Special Criminal Court failed properly to consider that the accused might have made false or misleading

statements for a reason other than his guilt, such as fear for his life.

6. that the Special Criminal Court erred in holding that the evidence established beyond reasonable doubt the essential

proof of the Applicant’s knowledge that the mobile phone box contained a firearm and ammunition.

33. The overwhelming emphasis at the hearing of the application for leave to appeal was on the first ground relating essentially to the

admission into evidence of the mobile phone records. Grounds two and three relate to the application for a direction of no case to

answer. The last three grounds relate to the sufficiency of the grounds for the guilty verdict found against the Applicant.

The search; admission of mobile phone records

34. The Applicant, though his counsel, advanced essentially the same grounds against the admission of the mobile-phone records as

had been put forward at the trial. Essentially, it was that the search of the Applicant was unlawful.

35. However, in his written submissions, the Applicant advances a distinct ground, namely that the Applicant was led by the gardaí to

believe that his personal property, including the mobile phone, was being taken from him solely for safe-keeping as prisoner’s property

and that it had never been suggested to him that the phone was being taken for any other purpose, and importantly, that the

Applicant was never informed that it was proposed to access the personal data stored on the phone. In particular, complaint is made

that the mobile phone was passed to Sergeant Liam Archibold who carried out a deeply intrusive analysis of the personal data on the

phone and that the Applicant was never informed that this was being done.

36. This additional ground did not form any part of the objection made at trial, which has already been summarised. No distinct

objection was made to the admissibility of Sergeant Archibold’s evidence on the ground that the mobile phone had merely been taken

for safe keeping and should not have been handed over for forensic analysis. Nor is there any reference to the matter in the Notice of

Appeal. It is part of the constant jurisprudence of this Court that, in the absence of exceptional circumstances, it will not entertain a

ground or argument which was not advanced at the court of trial. (see DPP –v- Cronin [2006] 4 IR 329) The Court is satisfied that

this ground should not be entertained.

37. The submissions on the principal point proceed on the basis that the Gardaí carried out a search of the person of the Applicant.

This is not necessarily in fact what happened. It is not clear from the evidence that any physical search actually took place. Garda

Fallon was asked by Garda McQuade, to search the Applicant. He described what actually happened as follows. In answer to a

question from prosecuting counsel as to whether he had searched him and whether he had said anything to him before he searched

him, he answered: “No, I just asked him to take any property he had from his pockets and then I would have searched him.” Although

other gardaí spoke of a search, it appears that this refers to the asking of the prisoner to empty his pockets.

38. In any event, it is common case that, whether there was any physical element or not, the Applicant submitted without objection

to being required to hand over his property and that he was told the items were being detained for safe keeping. The Applicant

accepts that the evidence establishes that he co-operated with a search for the purposes of taking his property into safe-keeping as

prisoner’s property.

39. The Applicant submits that the cases establish that a member of An Garda Síochána cannot search a person without the consent

of the arrested person unless he informs that person of the legal justification for conducting the search. Counsel cites DPP v Rooney

[1992] 2 IR 7; DPP v O’Donnell [1995] 3 IR 551, and DPP v McFadden [2003] 2 IR 105 in support of this proposition.

40. The respondent points to the lack of any objection to the “search.” This, it is said, is particularly relevant in the light of the

authorities. In the absence of objection, no statutory or common law power had to be invoked.

41. In DPP v O’Donnell, the applicant had been stopped by gardaí on suspicion of being a member of an unlawful organisation. He was

informed that the gardaí proposed to search him pursuant to s. 30 of the Act of 1939. They removed a walkie-talkie from his right

hand pocket. He resisted when they tried to search his left-hand pocket. They then arrested him pursuant to the section and

informed him that they wished to examine his left hand pocket and would use force if necessary. He then handed the gardaí the

contents of his left hand pocket which was found to contain explosives. He was convicted by the Special Criminal Court of possession

of explosives.

42. On appeal to the Court of Criminal Appeal his conviction was upheld. The Court held that the search was lawful. So far as the

search of the pocket with the walkie-talkie was concerned, there was no objection. It was only when the search proceeded to the

other pocket (which contained the explosives) that the applicant resisted, but then the gardaí gave notice that they intended to

exercise their statutory powers. The respondent relies on the following statement from the judgment of the Court:

“It is only when the co-operation of the citizen is withdrawn, and it is necessary to fall back on powers of compulsion under common

law or under statute, that the necessity arises for the Gardaí to invoke such powers and at that stage to inform the person against

whom it is sought to exercise them of the legal justification for any interference which is to take place with his or her rights under the

Constitution.”

43. In DPP v McFadden, a motorist was stopped on suspicion of driving under the influence of alcohol. He was breathalysed and taken

to the garda station. He consented to being searched but objected when a garda began to examine the contents of his wallet. The

latter contained incriminating material which led him to being prosecuted and convicted before the Special Criminal Court of an

offence of being in possession of information of such a nature as to be likely to be useful to an unlawful organisation in committing a

serious offence. On appeal, he objected to the admissibility of the incriminating information on the ground that it had been obtained

as a result of an unlawful search. The conviction was quashed.

44. The judgment of this Court, delivered by Keane C.J. constitutes a meticulous summary of the law on the subject. Firstly, he

referred with apparent full approval to the passage from the judgment of this Court in DPP v O’Donnell, cited above. He then

proceeded at page 109:

“The evidence in this case established beyond doubt that the search of the accused was conducted at the outset with

his consent. It is also clear, however, that he never consented to any examination of the contents of his wallet or to the

retention by the gardaí of the document found by them in the wallet and indeed he objected to the search…of his wallet.

A member of An Garda Síochána cannot engage in such a procedure without the consent of the person whose property or

effects are being searched unless it is authorised by law.”

He then dealt with the power of search:

“There can be no doubt as to the power of a police officer who has effected a lawful arrest, to conduct a search of the

arrested person’s body and retain objects found in the course of the search, even without a search warrant. That such a

power existed in cases of felonies and misdemeanours was made clear by the decision of the Exchequer Division (Palles

C.B., Dowse B. and Andrews J.) in Dillon v. O’Brien and Davis (1887) 20 L.R. (Ir.) 300. In that case, it was said that the

power to seize the property was necessary in order to ensure the preservation of material evidence of the guilt or

innocence of the detained person for the purpose of his trial. However, in the subsequent English decision of Elias v.

Pasmore [1934] 2 K.B. 164, it was held that the power of the police extended, not merely to property which was evidence

relating to the charge on which the arrest was made, but property which was evidence relating to any other criminal

charge.”

45. He cited further authority on this point, in particular the judgment of O’Keeffe J in the Supreme Court in Jennings v Quinn [1968]

I.R. 305, before adding that the exercise of such powers was “subject to one important precondition.” That precondition, he found

stated in the judgment in the High Court of O’Hanlon J in Director of Public Prosecutions v Rooney [1992] 2 I.R. 7 at page 10 as

follows:

“Although less drastic in its effect than a power of arrest, such action [referring to a search] on the part of the police

authorities does nevertheless amount to a substantial and significant interference with the liberty of the subject, and it

appears to me that the same principles which underlie the decisions in Christie v. Leachinsky [1947] A.C. 573 and The

People (Attorney General) v. White [1947] I.R. 247 must apply with equal force in this situation also, if the constitutional

guarantees of liberty of the person are to be adequately defended and vindicated. Consequently I would hold that before

the power of search given by s. 29 of the Dublin Police Act, 1842, already referred to, can now be lawfully exercised, the

suspect is entitled to be informed of the nature and description of the statutory power which is being invoked.”

46. Keane C.J. recalled, at page 111, that in the case before the court, the applicant “was at no stage told by Garda McHugh why he

was being searched or why the contents of his wallet were being examined or informed as to the power, if any, that the garda was

relying on to justify the search.”

47. The essence of the determination of the Court is, finally, to be found in the following passage on page 112:

“The failure of the garda in this case to give any explanation to the accused as to why his wallet was being searched, at

a stage when it was clear to him that the accused was objecting to his search of the wallet, could not be regarded as a

trivial or inconsequential departure from the Regulations of 1987. A breach of the fundamental requirement of our law that

a police officer who is carrying out a search of a person without his consent informs that person of the legal justification

for so interfering with his constitutional rights cannot, in the view of the court, be considered as of such little importance

as to justify a departure from the Regulations.”

48. The Court concludes from all the foregoing that, in a case where objection is made, a garda officer may not search a person in

custody without stating clearly to the person that he proposes to do so accompanied by a simple but clear statement of the power

which is being exercised. It emerges equally clearly from the same authorities that such an obligation does not exist when the person

does not object. Keane C.J. said as much in approving the passage from the judgment in DPP v O’Donnell, already cited. As that is

clearly the case, as explicitly found by the Special Criminal Court, and not contested in that respect by the Applicant, this ground of

appeal must fail.

The application for a direction

49. The application made by the Applicant for a direction that there was no case to answer was based essentially on criticism of the

weight of the evidence. The Applicant was indisputably found to have a firearm and ammunition physically in his possession. The

prosecution case depended on establishing his knowledge that he was receiving of a firearm. The evidence of three garda officers was

that they saw the box open in the footwell of the car on the passenger side where the Applicant was sitting. This evidence, though

tested in cross-examination, was not contradicted. The Applicant submits in his application to this Court that this evidence was not

enough and that the surrounding circumstances, on which the prosecution relied to prove knowledge, was reasonably consistent with

innocence, i.e., with an absence of intention and knowledge. However, the Applicant admitted receiving the box, while offering the

explanation that he thought he was collecting a mobile phone from a person he did not know on behalf of another person whose name

he would not reveal. The Special Criminal Court was entitled to take the view that these were extraordinary circumstances, requiring

some plausible innocent explanation. The Applicant had patently lied to the gardaí, when he denied making telephone calls which were

made between him and Thomas Kelly in the immediate period prior to the handover of the firearm. His account was that he did not

know Thomas Kelly, from whom he was to receive the mobile phone, and would not reveal the name of the person who asked him to

receive it. In circumstances where what he actually received was a firearm and ammunition, there was ample evidence from which a

jury would have been entitled to conclude that he was knowingly receiving the firearm and ammunition into his possession. The court

is satisfied that the Special Criminal Court was correct to refuse the application for a direction.

50. The Applicant next complains that the Special Criminal Court erred in refusing to give reasons for its decision to refuse to direct

itself to acquit. More precisely, the complaint is that it declined to provide reasons at the time when it refused the application,

because it clearly gave them in its concluding judgment in the case. The Applicant relies on the decision of the Supreme Court in

O’Mahony v Ballagh [2002] 2 IR 410. That case concerned a District Court prosecution for driving under the influence of alcohol. At

the conclusion of the prosecution case, the solicitor for the accused applied to the District Judge for a non-suit, contending that his

client had been unlawfully arrested, inter alia, because he had not been informed of the grounds for his arrest. The garda

superintendent conducting the prosecution did not respond and was not invited to respond. The District Judge rejected the

application but made no specific rulings on the submissions. He merely observed that the appellant had been drunk. The appellant

went into evidence and was convicted. It is clear from page 413 of the report that the District Judge even at the conclusion of the

case made no specific rulings. This Court quashed the conviction. Murphy J. delivered a judgment with which Hardiman and

Geoghegan JJ agreed. He regarded it as significant that the appellant had gone into evidence. He commented on the judge’s remark

that the appellant had been drunk, saying that “if it was intended to convey that the trial judge was satisfied that the applicant must

have known the reason why he was being arrested…that would be decisive of the matter.” On the other hand, if “it was simply a

rejection of all strands of the argument presented on behalf of the applicant, it would be wholly unsatisfactory.” He proceeded as

follows at p. 416:

“At the conclusion of the State's case the applicant and his legal advisors were required to decide whether they should

go into evidence or not. To make that decision it was essential to know which of the arguments were accepted and which

rejected.

I would be very far from suggesting that judges of the District Court should compose extensive judgments to meet some

academic standard of excellence. In practice it would be undesirable - and perhaps impossible - to reserve decisions even

for a brief period. On the other hand it does seem, and in my view this case illustrates, that every trial judge hearing a

case at first instance must give a ruling in such a fashion as to indicate which of the arguments he is accepting and

which he is rejecting and, as far as is practicable in the time available, his reasons for so doing. As I have already said,

there is no suggestion that Judge Ballagh conducted the case otherwise than with dignity and propriety. It does seem to

me, however, that in failing to rule on the arguments made in support of the application for a non-suit he fell "into an

unconstitutionality" to use the words of Henchy J. in The State (Holland) v. Kennedy [1977] I.R. 193 at p. 201.”

51. The Applicant acknowledges that in two subsequent High Court cases, it has been held that the principle set out in O’Mahony v

Ballagh [2002] 2 IR 410 is confined to the situation where reasons are required by the accused to decide whether or not to go into

evidence (see Lyndon v District Judge (Unreported, High Court, Charleton J., 22nd January, 2007) and Collins Kenny v Judge Coghlan

(Unreported, High Court, O’Neill J., 8th February, 2008)). The respondent relies on the decision of Kearns P in Sisk –v- District Judge

O’Neill [2010] IEHC 96. The learned President said:

“I am satisfied that, in the event of an application being made for a nonsuit at the conclusion of the prosecution case,

the obligation on a District Judge is to consider the sufficiency of the prosecution evidence when taken as a whole and

taken at its highest.

I do not believe there is an obligation upon a District Judge to furnish detailed reasons, or any reason for refusing such an

application once he satisfies himself that the test in R. v. Galbraith has been met.”

52. The Applicant complains, however, that he and his legal advisers, who were then called upon to advise him at a crucial time in the

trial, were entitled to know how the Court viewed each part of the prosecution evidence taken individually and as a whole before

making a decision as to whether he should or should not give evidence.

53. The court did not give its reasons, as it put it “at that stage.” That was a clear indication that it would give them at a later

stage, as indeed it did. It gave them in its concluding decision. It would be normal for a judge, in refusing to withdraw a case from a

jury, to express perhaps in very brief even terse terms its reasons for holding that there is a case to answer. However, for a court to

give reasons involving any evaluation of the quality of the evidence at the stage of refusing a direction may run the risk of

prejudgement in a case where the same court must determine the ultimate question of guilt.

54. In the present case, the only significant issue was whether the Applicant was knowingly in possession of the firearm and

ammunition. It was not contested that he was in actual possession. The application cannot be considered in vacuo. There were

extensive replying submissions from counsel for the prosecution. The prosecution contended, correctly it seems to the Court, that the

preponderance of the Applicant’s submissions related to the weight of the evidence and pointed to the inherently unusual and

suspicious nature of the transaction in which the Applicant was involved. More pertinently, the presiding judge addressed a number of

crucial questions to counsel for the Applicant in the course of his submissions on the application, questioning him particularly about

the right of the court to draw inferences from the answers given to the gardaí, the fact that the Applicant said that he did not know

Thomas Kelly, that he was receiving a box from someone he did not know, the phone contact with Thomas Kelly and the garda

evidence that the box was open.

55. In the view of the Court, counsel cannot have been in any doubt as to the reason for refusing the application. The case bears no

resemblance to O’Mahony v Ballagh. The central pointers to the prosecution case regarding the Applicant’s knowledge were

specifically and carefully drawn to counsel’s attention by the trial court: the evidence that the box was open in the car; the phone

contact with Thomas Kelly; his lack of prior acquaintance with that person; that he was receiving delivery from a man he did not

know.

56. The court rejects this ground of appeal.

Conclusions on guilty: reasonable doubt

57. The Applicant submits that the Special Criminal Court erred in drawing inferences of guilt arising from the interviews of the

accused and that his right to silence was infringed by the Special Criminal Court in drawing adverse inferences from his failure to

explain in interviews the circumstances surrounding the transaction in the car-park of the Claret Pub.

58. He also submits that the trial court failed to properly consider that the accused might have given answers or made false or

misleading statements for a reason other than his guilt, such as fear for his life. Reliance is placed in particular on the following

statement from R v Lucas [1981] 3 WLR 120:

“So the question is whether the jury should, and whether this was an appropriate case for the jury to be warned that a

person may have lied for a reason other than his guilt such as something that he wishes to conceal from his family

because it might disgrace him in some way in the eyes of his family.

… they should have been directed in the view of the court that the evidence in question could be used against the

applicant, as of course it could, but only on the basis that they were entitled to rely on it and if they were satisfied

beyond reasonable doubt, that being the general standard of proof, that there was no innocent, that is to say no non-

criminal explanation for the untruthful answers.”

59. Complaint is made, in particular that the Special Criminal Court found that the Applicant had lied because of “realisation of guilt

and fear of the truth” and there “was no other conceivable motivation”. It is submitted that Lucas warning was not heeded.

60. The Court is not convinced by any of these points. Firstly, there is no question of the treatment of the answers given by the

Applicant in his interviews with the gardaí infringing his right to silence. He was perfectly free to answer or refuse to answer as he

saw fit. What the trial court did was to rely on what it found to be false answers given by the Applicant, in particular his denial of

making or receiving phone calls on his mobile phone. These were obvious and direct lies.

61. Secondly, the court explicitly directed itself to the Lucas warning. It concluded that the lies told by the Applicant were deliberate.

The court was entitled on the evidence to conclude that the falsehoods were motivated by “realisation of guilt and fear of the truth.”

The falsehoods in question relate to whether or not the Applicant had made or received messages on his mobile phone. The fear he

allegedly felt related not to this matter but to the name of the person who asked him to collect a mobile phone. The Applicant’s

submission, as it is expressed, would appear to go so far as to preclude the court from reaching a conclusion on whether the

explanation offered by the Applicant for not naming the person who allegedly asked him to collect a mobile phone could reasonably be

true. The Lucas warning does not go so far. The court was entitled to draw inferences from what it found to be the lies of the

Applicant if it was satisfied beyond reasonable doubt that there was no innocent explanation.

62. For these reasons, the court rejects all the grounds of appeal against sentence and refuses the application for leave to appeal.

Appeal against sentence

63. The Special Criminal Court sentenced the Applicant to ten years’ imprisonment. The section provides for a presumptive minimum

sentence of five years. The maximum term is fourteen years.

64. The court noted that Thomas Kelly, who had pleaded guilty, received a sentence of five years with the last eighteen months

suspended. It noted as an aggraviting factor (which it clearly ought not to have done) that there had been no plea of guilty on

arraignment and that the case had been fought tooth and nail. The Court will return to that matter. Most materially, the court noted

that the Applicant had, in 1992, been sentenced to life imprisonment for murder and nine years for robbery and two years for larceny.

It noted that it had been provided with no information whatsoever about the motivation for what occurred, i.e., the reason for

receiving the firearm and ammunition.

65. The Applicant says that the sentence was excessively severe. Accepting that the offence was serious, he points to the absence

of any evidence of specific intention to use or to kill any person and to the fact that the partner and child of the Applicant were with

him on the day in question. The Applicant’s probation report showed him to be an exemplary prisoner and that he had undergone

training for employment and was considered suitable for temporary release from the term of life imprisonment. Specific complaint is

made about the treatment of the Applicant’s decision to contest the charges as an aggravating factor. It was the Applicant’s

constitutional right to plead not guilty.

66. In response the prosecution says that, had there been evidence of the Applicant threatening to use the firearm or of endangering

life, he would have been charged with another offence or offences, possibly attracting a sentence of life imprisonment. That is the

sentence provided by s. 15 of the Firearms Act 1925 for possession of a firearm with intent to endanger life. The prosecution says

that the Applicant was released from his life sentence in 2007 but committed, while on release, this further serious offence.

67. The prosecution says that in DPP –v- Thomas Kelly [2010] IECCA 75 the Director of Public Prosecutions applied for review of the

sentence of 5 years (with the last 18 months suspended) which had been imposed on the co-accused. This Court increased the

sentence to one of 7 years with the last two years suspended. Thomas Kelly, however, did not have any previous convictions.

Finnegan J, delivering the judgment of the Court stated:

“The view of this court is that an appropriate sentence in this case must have regard to the nature of the weapon, the

purpose for which it can only be employed, which is an unlawful purpose and most likely be either to murder or to

intimidate persons whether in the course of robbery or otherwise. The court is satisfied that in this case the appropriate

sentence is one of eight years. [The Court mitigated the term to seven years] There is no basis upon which the court

should or could depart from the statutory presumptive minimum sentence in the circumstances of this case. In imposing a

sentence of five years imprisonment with eighteen months suspended the court clearly departed from the appropriate

sentence to such an extent that it must be said that the sentence imposed was unduly lenient.”

68. The Court must commence by stating that it was quite wrong to treat the failure to plead guilty as an aggravating element. An

accused person is fully entitled to contest a charge. The decision to do so cannot be counted against him so as to increase the

sentence which would otherwise be imposed. It is, of course, correct to state that a plea of guilty may, depending on timing and

other circumstances, be treated as a mitigating factor so far as sentence is concerned. However, the distinction is important. It is

not a mere trivial matter of nomenclature. The sentencing court should identify the correct sentence for the offence and may add for

aggravating factors or deduct for mitigating ones.

69. In the present case, the offence is undoubtedly a very serious one. It involved knowingly taking possession of a firearm and

ammunition, which, on the garda evidence, was in good working condition. That meant that it could be used to injure or even kill. The

Special Criminal Court rightly pointed out that the Applicant had offered no insight into the reason for his having this weapon. It

cannot, on any view, be an innocent one. The weapon had to be for the use of the Applicant or of someone else. In either event, its

possession implies a criminal purpose.

70. The Court has the guidance of the decision of this Court in DPP v Thomas Kelly, who would appear, on the evidence, to be guilty

to a comparable degree with the Applicant. This Court considered eight years to be the appropriate sentence in his case, before

mitigation. Firstly, that applicant had no previous convictions. Secondly, he pleaded guilty. These are the two classic mitigating

factors. At the time of the sentence hearing in the present case, only the sentence of five years had been imposed. The appeal had

not been heard.

71. The position of the Applicant is sharply distinguishable by reason of his previous convictions, above all a conviction for robbery

and murder. The garda evidence was that, in that case, the victim was tied up and robbed by the Applicant and two other men and

that he died as a result of his injuries. The Applicant also had a long record of convictions for serious criminal including larceny,

burglary and malicious damage.

72. If the appropriate sentence in the case of Thomas Kelly was eight years before mitigation, and the same is to be applied to the

Applicant, the position of the latter is seriously aggravated by his appalling criminal record. At the time of the offence he was on

release from a life sentence for murder. There is no error in the sentence imposed.

73. The Court will reject the application for leave to appeal in respect of both conviction and sentence.