District Court convicts two men for forestry offences, rejecting reasonable care defence due to clear licence boundaries.

THE DISTRICT COURT DISTRICT COURT AREA OF KILKENNY DISTRICT NO.22 BETWEEN:

THE MINISTER FOR AGRICULTURE, FOOD AND THE MARINE PROSECUTOR

- AND – MYLES KEHOE AND JAMES HURLEY ACCUSED Judgment delivered by Judge Brian O’Shea at Kilkenny District Court on 12th day of December 2017 Background

1. This prosecution was initiated on foot an uncontested authorisation dated 19 September 2016 issued by the Assistant Secretary General at the Department of Agriculture, Food and the Marine. Mr Kehoe (as the owner of the relevant lands) and Mr Hurley appear before the court, each accused of two offences, namely:

a) causing or permitting an act or thing to be done that caused or was calculated to cause trees to die or be irreparably damaged contrary to section 51(1) of the Forestry Act 1946 as amended, and

b) failing to comply with section 37(1) of the 1946 Act by causing or permitting the uprooting and/or cutting down of trees (being over 10 years old) without having given notice in writing as prescribed by section 37, contrary to section 37(3) of the 1946 Act.

Evidence of Mr Murren

2. Evidence was adduced from Mr Murren, a forestry inspector. On 15 December 2015 he was alerted to extensive tree felling on lands at Coolraheen South, Co Kilkenny. The person who alerted him was Mr Kilfeather who works with Inland Fisheries. Mr Murren made inquiries that resulted in him being sent a copy of an associated tree felling licence, GFL16084. He considered that the licence entitled the licensee to fell “windblown” trees on two hectares of land. He later determined that 10.59 hectares were felled.

3. On 16 December 2015 Mr Murren and Mr Kilfeather walked the lands. As they were about to leave they encountered Mr Kehoe. Mr Murren put it to Mr Kehoe that the licence only extended to two hectares and inquired of him whether he had a licence to cover the remaining felling. Mr Kehoe replied that he was not sure and stated: “Jim Hurley looks after all that for me”.

4. Mr Murren gave uncontested testimony that the trees that were felled had been planted in 1991 and were approximately 24 years old at the time of felling.

5. Mr Murren referred to an agreed book of documents and photographs relating to what he saw “on the ground”. Firstly he referred to an area of recent felling at Photograph 10.

He stated that this was covered by the licence. He then referred to a number of photographs: 10, 11, and 14 showing stumps of trees that he opined were healthy upright trees that were felled outside of the licence area. He stated that he only found one tree stump on 12 plots of land that was upturned, that is to say, that had been windblown.

6. Mr Murren also referred to photographs 14, 15, and 16 which show tree stumps in clusters of close proximity that are upright and therefore not windblown.

7. Mr Murren accepted that he spoke to Mr Hurley by telephone on 22 December 2015 and that Mr Hurley told him that he considered he was working under licence.

8. Under cross-examination by Mr Murray BL for Mr Kehoe, Mr Murren accepted that there was no requirement for him to be informed of the granting of the licence. He also agreed that “Storm Darwin” had caused catastrophic damage to forestry nationwide and that there was a resulting increase in licence applications many of which began to be issued centrally. He stated that the licence was granted on 16 May 2014 and was valid for two years, thereby being temporally congruent to the dates of the alleged offences. Mr Murren gave testimony that the application for the licence consists of a Form F.A.4 and a “Harvest Plan”, which was produced by the applicant. Mr Murren explained to the court that at the time he was on site he was only in possession of the licence and he did not have the Form or the Plan. Mr Murren disagreed with Counsel’s assertion that the number “12” contained in the first column at Paragraph 3 of the Form F.A.4 relates to not just “Details as to the land” but rather details as to the all of the land that may be felled.

He accepted that windblow is difficult to map, but he suggested that it is a condition of the application that the applicant submits the best possible survey. He further accepted that windblown areas are dangerous, but he stated that modern machinery reduces the associated risks. Mr Murren acknowledged that there is an interest on policy grounds to encourage land owners to clear windblown trees.

9. Under cross-examination by Mr Marray BL for Mr Hurley, Mr Murren stated that the vast majority of the trees were upright. He also stated that once the work moves beyond the licensed area a new licence is required. When it was put to him that the Harvest Plan refers to the words “2 hectares and adjoining” he stated “that is not in the licence”. Mr Murren did not accept that the entirety of the 8.59 hectares was windblown. He accepted that a windblown tree could be cut and then would reposition itself so that the stump was facing upright.

10. Mr Murren was then shown an audio-visual recording of a cutting machine gripping the trunk of a windblown tree, separating the trunk from the root, and the root falling back into a position such that the tree stump was facing upright. Mr Murren accepted that this could occur but that he would expect there to be a “gap” or “vacancy” between the ground and soil attached to the root of the tree. He stated that he saw no such vacancies in this case, but conceded that he could not see all of the roots as some were covered by “lop and top” cuttings. In making his assertion he referred to Photograph 15 in the agreed booklet and noted that there was no “breakage” in the ground. He did not accept that the area was a “totally blown plantation” and stated that even if the area was windblown the felling went beyond the area permitted by the licence. He accepted that he could see no reason why a licence would not have been granted for a larger area if it had been sought.

11. Under re-direction by Mr Meaney, solicitor for the Prosecutor, Mr Murren reiterated that the applicant should have applied for a new licence even if all the trees were windblown.

Evidence of Mr Kilfeather

12. Mr Kilfeather gave evidence and he confirmed that he and Mr Murren met with Mr Hurley as described by Mr Murren, and he confirmed the utterances made. He further stated that Mr Hurley indicated to him that “he was managing the operation at the site and all the work had ceased.” He confirmed that he took Photograph 61 which shows a line of tree stumps along the edge of the lands, but outside of the licensed area. He stated that they were not windblown and he indicated, using a blue line, where they were positioned by reference to the map.

13. Mr Kilfeather also stated that there is only one private dwelling near the lands and that it was close to the entrance to the public road but certainly more than 100 feet from the lands.

Evidence of Mr Windle

14. Mr Windle, a forestry inspector for the Prosecutor, gave testimony that he assessed the licence application, approved it, and granted the licence on 2 April 2014. The licence was signed and issued on 16 May 2014 subject to six conditions set out at paragraphs (a) to

(f) therein. He stated that while the parcel of land is 12 hectares the harvesting plan refers to 2 hectares. He stated that “during the harvesting operation if the forester considers the area to be felled is greater than that the licensed area then he should apply for a licence to cover that greater area”.

15. Under cross-examination Mr Windle stated that the “12” on the Form F.A.4 referred to the overall land. He stated that he could not estimate windblow or “adjoining unstable areas” (as referred to in the Forestry Services Ltd letter in the booklet) outside the two hectares applied for by the applicant. He reiterated that “legally” the applicant must apply for a larger licensed area if additional felling is necessary. He also informed the court that the “turn around” for licences at that stage was only a matter of days.

16. Under further cross-examination Mr Windle stated that the reference to: “The licence is for the harvesting of windblown areas only” at paragraph (e) of the conditions attaching to the licence was a reference to windblow within the two hectares. Mr Windle referred to the Schedule to the licence and to the reference therein to two “red circles”. The circles are shown on the map that accompanied the application, and the map is at page

21 of the agreed booklet. He went on to state that while the red circles would not ordinarily be acceptable in terms of an application for a licence there were certain administrative pressures that allowed him to overlook this at the time.

Facts agreed pursuant to section 22 of the Criminal Justice Act 1984

17. There were a number of facts agreed pursuant to section 22 of the Criminal Justice Act 1984, namely (1) the content of a letter dated 22 June 2016 authored by Sinead Stafford of the Felling Section at the Department containing a declaration dated 5 July 2016 by garda sergeant Paul Donoghue of Castlecomer Garda Station to the effect that there was no notification sent to the gardaí as required by the legislation, at page 38 of the booklet;

(2) the transfer of the functions of the Department under its various names; (3) the folio containing the 12 hectares of land in issue that shows Mr Kehoe as the owner of that land; (4) the letter dated 27 July 2016 authored by Mr Kehoe at page 32 of the booklet;

(5) the undated letter authored by Mr Hurley at page 35;(6) the letter dated 29 July 2016 authored by Sinead Stafford and addressed to Mr Hurley at page 34 of the booklet; and

(7) that there was no further correspondence by the Department with Mr Hurley until a summons was received by him alleging the offences in issue. For convenience it is appropriate to set out at this stage further facts that were agreed on the same basis later in the evidence, namely: (1) the content of the Form F.A.4; (2) the content of the Harvesting Plan; (3) that the Plan was returned with the Form F.A.4, and that this occurs as a matter of course; and (4) the booklet of photographs put into evidence by the Defence.

18. Following the presentation of the evidence for the Prosecution there was no application for a direction by either of the Accused.

Evidence of Mr Bruton

19. Mr Bruton gave testimony in his capacity as the managing director of Forestry Services Ltd. He was retained by Mr Kehoe. His similarly qualified colleague, Joe Galligan, prepared the Harvesting Plan and signed the Form F.A.4 on behalf of Mr Kehoe as an employee of Mr Bruton. Mr Bruton indicated that is it not possible to estimate or indicate areas of windblown trees owing to the fluidity of the situation. He also testified that trees that appear perfectly healthy may be unstable by virtue of other windblown trees leaning against them. Accordingly, he drew a distinction between windblown trees and unstable trees. He described windblow or “creeping windblow” in terms of “a dominos effect”. He stated that in applying for the licence Mr Galligan did his best to show the areas immediately at risk. In relation to the licence he testified that there was a “clear understanding of the two hectares in the circles and the adjoining windblown trees on the

12 hectares”. He stated that this was evident owing to the fact that the Harvest Plan was returned attached to the licence. He agreed that the Plan is returned as a matter of course with the licence. He also testified that he still believes that the 12 hectares was licensed and that he had been doing things in this way for years. He stated that he believed the action of clearing the site was entirely appropriate. He stated that the site was cleared in two stages: (1) windblown material in 2014, and (2) harvesting completed in 2015. He asserted that it would not make sense from the perspective of either finance or forestry to clear the site. He then clarified that if the trees were windblown in 2015 then it would make economic sense to clear the site as the timber might decay and be worthless.

20. Under cross-examination by Mr Meaney, Mr Bruton rejected the suggestion that he was now interpreting the licence in a way that was favourable to the Accused in circumstances where he was effectively professionally embarrassed by an obvious error on the part of his company. He reiterated that “we did this licence as we always done them”. He accepted that it may be fair to characterise Mr Windle’s acceptance of the vagueness of the two circles on the map accompanying the application as a favour. He accepted that an aerial map handed to him in court coincided with the windblown material removed from the site in 2014, that is to say the two aforementioned circles. He testified that the section of lands shown on the map contained within the straight red lines was and indication of “potential risk area for windblow”. He accepted that the licence is for two hectares but that the Harvesting Plan was attached to it. Mr Bruton rejected the suggestion that the letter dated 27 July 2016 authored by Mr Kehoe and addressed to Sinead Stafford showed clear intent to harvest the entire site and replant it.

21. Mr Bruton opined that felling should continue to follow windblow “until you are no longer dealing with destabilised trees, or new land ownership occurs, or until health and safety has been fully addressed”.

Evidence of Mr Hurley

22. Mr Hurley gave testimony in his own defence. He comes before the court for the very first time. He has been involved in the tree felling business for 38 years. He was presented with the licence by Mr Kehoe and asked to “tidy up the windblow”. He points to the fact that the circles were indicative only and in this regard he alluded to the fact that they encompass some farmland that is not under forestation. He considers that the Harvesting Plan is a very important document that cannot be ignored. He understood that the Plan and the licence together “covered the complete property for two years”. He alluded to being asked to return to the site in summer 2015. He considered that the site was not viable to remain standing and that the “domino effect” cannot be stopped. He concluded that the only viable thing to do was to remove the remainder of the trees. He stated that trees fall even as felling is ongoing. He impressed upon the court that his company is reputable. He stated that felling should only continue for “as far as the licence covers”. He agreed that clearing the site in 2015 was a “damage limitation exercise” in financial terms. He presented documents to the court that suggest that his company rather than him personally was engaged by Mr Kehoe.

23. Under cross-examination by Mr Meaney, Mr Bruton agreed that a significant portion of the lands contained within the Plan accompanying the application is not actually part of the

12 hectares argued by the Accused to be within the licence. He rejected that this adversely affected his credibility in terms of his general attitude to the application and the licence. He agreed that he was “looking after the operation”; that he was an employee and a director of the company at the relevant time; that he was the “man on the ground”;

and that he was “the face of the company”. He concluded by testifying “I was in charge of the project, yes.”

24. A significant number of agreed documents were referred to and relied upon during the course of the testimony of the various witnesses, and the court has had regard to each of those in the terms in which they were relied on, e.g. Circular No 6/2014 dated 3 April 2014 entitled “Submission of Felling Licence Applications – Points to Note”, and the fact that it refers to the “possibility” only of providing clearly delineated areas to be clearfelled; also the letter from Mr Hurley to Sinead Stafford wherein he states: “This we undertook in the clear understanding that the work was within the duration and terms of the licence.”

Legislation

25. Subsection 37(1) of the 1946 Act provides:

Subject to subsection (4) of this section, it shall not be lawful for any person to uproot any tree over ten years old or to cut down any tree, unless the owner of the land on which the tree stands … has, not less than twenty-one days and not more than two years before the commencement of the uprooting or cutting down (as the case may be) of the tree, given to the sergeant in charge of the Gárda Síochána station nearest to the tree a notice in writing … of intention to uproot or cut down (as the case may be) the tree.

26. Subsection 37(4) states that:

Subsection (1) of this section shall not apply to the uprooting or cutting down of any tree if —

(a) the tree is uprooted or cut down under the authority conferred by a limited felling licence or a general felling licence and during the period during which such authority is exercisable, or

(d) the tree is standing within one hundred feet of any building other than a wall or temporary structure, …

27. Subsection 35(1) provides that:

[T]he expression “cut down” means, in relation to a tree, cut through the trunk of the tree at a height of less than six feet from the ground surface to such an extent that the tree falls or is rendered liable to fall under the influence of natural agencies.”

28. Subsection 51(1) of the 1946 Act provides that:

No person shall do either of the following things, that is to say:—

(a) do or cause or permit to be done in relation to any tree (other than a tree the uprooting or cutting down of which would not be a contravention of this Act)

any act or thing, whether by ringbarking or otherwise howsoever, which causes or is calculated or likely to cause such tree to die or to decay or which causes or is calculated or likely to cause irremediable damage to such tree, or

(b) remove or cause or permit to be removed timber from any tree (other than as aforesaid) otherwise than in accordance with the practice of good forestry or for the purpose of preventing grave damage to crops.

Submissions on behalf of Mr Kehoe

29. Mr Murray for Mr Kehoe submitted that the offences alleged are not ones of strict liability and that the Prosecution have not “come up to proof” in that regard. He submits that the actions of the Accused were understandable, sensible, prudent, and used as a last resort. He argues that the Harvesting Plan is a key document, an essential element of the application for the licence, and he reminds the court that the Plan was returned with the licence. He argues that although the actions of the Accused were conscious they were not calculated to amount to a conscious contravention of the licence. Finally, he argues, although it must be noted without any vigour, that the evidence brings the Accused within subsection 37(4) of the 1946 Act, albeit without any specificity in that regard.

Submissions on behalf of Mr Hurley

30. Mr Marray for Mr Hurley adopts the submissions made by Mr Murray. He further submits that the Accused are reputable people working in the field of forestry for decades. He reminds the court that the Accused has always applied for and worked on the basis of licences. He argues that when the number “12” was inserted on the Form F.A.4 it referred to the area to which the application for the licence applied but that two hectares required to be dealt with immediately. Finally he submits that the Accused were entitled to, and did, rely on the licence, the application form, and the Harvesting Plan read together. In relation to mens rea he argues that nothing short of intention on the part of the Accused persons will suffice.

Submissions on behalf of the Prosecution

31. Mr Meaney argues that the licence is clear on its face; that the licence is the only document upon which reliance may be placed regarding what felling is permitted. He argues that the offences are strict liability offences and that once the facts in support of the offence are established beyond reasonable doubt an evidential burden shifts to the Accused to bring themselves within the defences set out at subsection 37(4) of the 1946 Act. He argues that even if it was necessary to prove intent it is never possible for the Prosecution to prove the particular mindset of an accused person and that it must be inferred from all the evidence. In this regard he relies on (1) the letter dated 27 July 2016 authored by Mr Kehoe to Sinead Stafford referring to his conclusion therein that “the only real common sense option was to harvest the rest of the forest and replant the whole area altogether” and (2) that even though there was an overall loss to Mr Kehoe there was a financial benefit in the “damage limitation exercise” of felling the windblown trees before they decayed and became worthless.

Discussion and decision

32. At the outset, the court is of the opinion that the reference to “12” in the first column of third paragraph of the Form F.A.4 could only refer to the details of the overall lands upon which is situated an equal or lesser portion of woodland. That area of the woodland must be indicated in the last column of the same table. To read the Form otherwise would be absurd and erroneous.

33. In relation to the offences alleged under section 37, the reference to a tree being “over ten years old” only applies to the action of uprooting the tree. In this case the allegation is in relation to cutting down trees and so the age of the tree is irrelevant. The ingredient of the offence is one of cutting down “any tree”. The section imposes an onus on the owner of the lands on which the tree stands to give at least 21 days written notice (in the prescribed form) in advance of the cutting of the tree to the sergeant-in-charge of the station nearest the tree, of the intention to cut down such tree. Although the onus is on the owner of the lands it is clear from the section that the offence itself may be committed by “any person”, whether or not the owner. In this case that relevant garda station is situated at Castlecomer. The content of the declaration dated 5 July 2016 of sergeant Paul Donoghue of Castlecomer Garda Station as contained in the letter of Sinead Stafford to the sergeant-in-charge at Castlecomer has been agreed by the Accused It states, in effect, that no notice has been served in accordance with the statutory requirement of section 37. The court is satisfied beyond reasonable doubt in relation to the facts relied upon by the Prosecution in this regard.

34. The potential defences available to the section 37 offence are set out at subsection 37(4).

On the evidence the only two that could apply in this case are set out at paragraphs (a)

and (d). Dealing with the latter first, it would be a defence if the tree cut down was standing within one hundred feet of any building other than a wall or temporary structure.

The uncontested evidence is that there was not such building within 100 feet of the lands upon which the felling occurred. That leaves the defence available at paragraph 37(4)(a), namely that the tree so cut was pursuant to a limited felling licence, such as the one granted in this case. It appears to the court that this is the defence relied upon on behalf of the Accused. The answer to whether or not this defence is available on the evidence falls to be decided by a determination as to whether or not the licence conferred authority to cut down the trees in issue, which the court will address later in this judgment.

35. The offences alleged under section 51 of the 1946 Act relate, in this case, to causing or permitting in relation to any tree any act that causes or is likely to cause the tree to die or be irremediably damaged. There is no doubt that cutting the trees would bring about both of these results. However the legislation distinguishes between trees in general and “any tree the … cutting down of which would not be in contravention of this Act”. In the case of the former an offence may be committed, but in the case of the latter no offence is committed. Again, the defence raised on the evidence is that the cutting down of the trees in this case were not in contravention of the Act as they were cut down pursuant to a licence that conferred authority to so do.

36. It follows inevitably that the remit of the licence issued in this case is central to the issues to be determined. In this regard, the Accused place significant reliance on the Harvest Plan, and contend that the licence must be read in conjunction with the Plan. The Prosecution disagrees and says the licence stands distinct from the application and the Plan.

37. In the opinion of the court, as a matter of law, it is the licence that dictates that area that may be felled. The licence could not be clearer. It confers on Mr Kehoe authority to cut down trees “specified in the Second Schedule … for the purpose of clearing that part with a view to replanting.” The Second Schedule sets out the particulars as to the land in which the trees may be cut. The particulars are “2ha” which is a reference to two hectares. In case there could be any doubt about this, the Schedule goes on under the heading “Description of the particular part of the land which may be cleared” to specify “Plots outlined in red circles on attached map.” It could not be any clearer.

38. The court expressly rejects the notion that the licence must be read in conjunction with the application and/or the Harvesting Plan. There is no legal authority for such a proposition, and if it has developed as a matter of practice then it is a bad and erroneous practice.

39. For the sake of completeness the court finds that the only reasonable interpretation of condition (e) in the licence is that it relates to windblown trees within the licensed area, that is to say the two hectares. If felling could follow windblow indefinitely then there would in effect be no regulation of felling at all and the very purpose of the legislation would be circumvented in a way that would give rise to intolerable uncertainty.

40. On the basis of the determination of the court in relation to the clarity contained within the licence and that it must be read as a self-contained document, the court also finds that the tree felling that occurred outside the two hectares denoted by the red circles on the map was done without a valid licence.

41. The impact of this determination in relation to the section 37 offences as alleged is that the defence set out at paragraph 37(4)(a) is not available to the Accused as the licence did not confer authority to cut down those trees.

42. Likewise, in relation to the section 51 allegations the defence set out within the text of subsection 51(1)(a) is not available as the trees that were cut down were not trees “the cutting down of which would not be in contravention of this Act”.

43. The court, being satisfied beyond reasonable doubt in relation to all of the factual matters required in terms of the ingredients of the alleged offences, would then ordinarily proceed to record a conviction in respect of both Accused in respect of both offences. However, to do so would be to overlook the issue of mens rea.

44. No legal authority has been opened to the court by either the Prosecution or the Accused on the issue of mens rea regarding either of the two offences alleged. The Act is silent in relation to same.

45. The court has considered the categories of offences set out in the decision in Canadian case of R v Sault Ste Marie [1978] 2 SCR 1299 which was adopted in this jurisdiction, albeit initially in the dissenting judgment of Keane J in Shannon Regional Fisheries Board v Cavan County Council [1996] 3 IR 267 but more recently by Hardiman J in CC v Ireland [2006] 4 IR 1. The categories are:

a) Offences for which a prosecutor must prove that an accused had the requisite mens rea to secure a conviction.

b) “Strict liability” offences for which a defence of reasonableness is available to the accused, e.g. taking reasonable efforts to prevent the actus reus from occurring, or having had a reasonable belief or lack of knowledge of an essential fact.

c) “Absolute liability” offences, for which the prosecutor need only prove the commission of the actus reus to secure a conviction.

46. The court has also carefully considered the decision of O’Donnell J in DPP v Ebbs [2011] 1 IR 778. O’Donnell J found that because the Sault Ste Marie categories only became incorporated into Irish law by virtue of the Supreme Court’s decision in CC v Ireland in 2006, the Oireachtas could not have intended for an offence created in 1990 to have been in the second of the Sault Ste Marie categories or in any category. However, CC v Ireland related to an offence created in 1935, and Reilly v Patwell (referred to later in this judgment) related to an offence created in 1997, and the courts in those cases had no difficulty categorising those offences into the Sault Ste Marie categories. Although the logic of the decision appears, on one possible reading, to be flawed it is nonetheless binding on this court.

47. The court has also had significant regard to the criteria set out by McCarthy J in Reilly v Patwell (Unreported, High Court, McCarthy J, 17 October 2008) relation to the factors to be considered in determining the category into which a particular offence falls.

48. Applying the criteria set out in Reilly v Patwell to this case, the court is of the opinion that the instant offences fall into the category of strict liability but not absolute liability. At page 291 to 292 of his judgement in Shannon Regional Fisheries Keane J referred to this category of offence in the following manner:

“I conclude that the law should recognise that there is an intermediate range of offences … in which, while full proof of mens rea is not required and the proof of the prohibited act prima facie imports the commission of the offence, the accused may avoid liability by proving that he took reasonable care.”

49. Accordingly, as matter of law, the court finds that the instant offences are not offences for which the proof of mens rea is a prerequisite to a conviction and to which the defence of reasonableness is available to the Accused. It follows that that the court must then turn to address the question of whether or not the Accused acted reasonably.

50. In considering the evidence in this regard the court has had the exclusive benefit of hearing not just what was said during the course of testimony but how it was said. In circumstances where there are such divergent views this is a very important feature of the case. Having considered the totality of the evidence the court is of the opinion that the Accused, while they assert they acted reasonably, did not do so. Instead they slavishly followed what they had been doing for years in the face of a licence that in the clearest possible terms conferred authority to fell trees within an area limited to two hectares within the confines of the red circles on the map accompanying that licence. In the opinion of this court for persons to act outside of the clear confines of that licence was not reasonable. This must be the case even more so when one considers that the Accused are by all accounts experts.

51. Finally, the court does not accept the argument that Mr Hurley can escape criminal liability by reason of the purported corporate veil between him and his company. He, as opposed to his company, was summoned before the court to answer the allegation. The section 37 offence may be committed by “any person” and the impugned behaviour that gave rise to that alleged offence, and indeed the section 51 offence, is behaviour that he testified he was in charge of. The fact that he also represented his company does not affect that fact that he was engaged in criminal conduct.

52. In light of the foregoing the court is satisfied beyond reasonable doubt that the facts required to be proven to establish guilt on the part of the Accused have been so proven, and it is therefore appropriate to record convictions against them.