D.P.P.-v- John Bishop, [2005] IECCA 2 (2005)

Docket Number:39/03
Judge:Geoghegan J.


Geoghegan J.

de Valera J.

Gilligan J.









JUDGMENT of the Court delivered by Mr. Justice Geoghegan on the 27th day of January 2005

This is an application for leave to appeal against conviction and sentence. The two convictions were for conspiracy to rob and for using a mechanically propelled vehicle without the consent of the owner for which respective sentences of ten years and five years were imposed.

The trial lasted approximately six weeks before Judge Carroll Moran and a jury in Portlaoise Circuit Court. The applicant was originally indicted along with three other named defendants, Kevin Lynch, Ian Quinn and Gareth Quinn. There were ten counts on the indictment but only counts 1, 2, 3, 4 and 7 concerned the applicant. In the event, the fourth-named defendant, Gareth Quinn, did not turn up for his trial and the case proceeded against the other three. This necessarily involved some renumbering of the counts. The count of using the mechanically propelled vehicle without the consent of the owner which had originally been count 7 became count 6. Otherwise nothing turns on the changes in numbering. The count of conspiracy to rob in respect of which the applicant was convicted was at all stages count No. 1. The applicant was found not guilty of conspiracy to commit aggravated burglary the particulars of which count were that the applicant Kevin Lynch and Iain Quinn on diverse dates between the 1st October, 2001 and the 7th December, 2001 (both dates inclusive) had conspired to enter the branch office of Allied Irish Banks Plc at Abbeyleix in County Laois as trespassers with intent to steal cash therein and to have with them at that time a firearm or weapon of offence. The applicant was also found not guilty of counts 3 and 4 which were both counts involving possession of a firearm with intent to commit an indictable offence or to resist or prevent arrest contrary to section 27B of the Firearms Act, 1964 as inserted by section 9 of the Criminal Law (Jurisdiction) Act, 1976 and as amended by section 14(5) of the Criminal Justice Act, 1984. In the case of count 3 the alleged firearm was a sawn-off shotgun and in the case of count 4 it was a stun gun.

For all practical purposes this application for leave to appeal relates only to count No. 1. An appeal in relation to the use of a mechanically propelled vehicle without the consent of the owner is not being seriously pursued.

Thirty four grounds of appeal have been inserted in the official written grounds of appeal. These have been elaborated upon in written submissions. However at the oral hearing of this application Mr John Peart S.C., counsel for the applicant sensibly condensed them into six real grounds. These can be summarised as follows:

1. Having regard to the provisions of section 9(4) of the Criminal Law Act, 1997 the trial judge ought to have suggested to the jury that before they would convict in relation to the count for conspiracy to rob they should consider whether a conviction of a lesser offence based on the same facts would be more appropriately warranted. Tied in with this submission was an argument that either a complete acquittal or a conviction of a lesser offence were the only verdicts open to the jury once they had acquitted on counts 3 and 4.

2. Part of the evidence on which the prosecution relied was documentation and other materials found inside a Peugeot car belonging to the occupier of the house outside which it was parked. The gardaí had obtained a search warrant in respect of the house. It is argued and, indeed, not disputed that the search warrant would not have covered the car but it was part of the State case that the owner permitted the search of the car and its removal. Part of the evidence supporting the existence of such permission was evidence of words actually spoken by the owner and as the owner did not give evidence it is submitted that that evidence ought to have been ruled out as hearsay.

3. It is submitted that the judge ought not to have admitted in evidence answers to a garda interrogation contained in memoranda given the particular circumstances in which the interrogation took place.

4. At one point in the trial judge's charge, he said the following to the jury:

"The real issue of fact in this case, and there have been six weeks of evidence about it, is, have the police planted this evidence? Have the guards tried to stitch up innocent men? That is the issue, as I see it, in the case."

Mr. Peart submits that in making that observation the learned trial judge was reversing the onus of proof.

5. The trial judge failed to bring adequately to the jury's attention the defence case which was the unreliability of State evidence, several instances of which were allegedly demonstrated to the jury by Mr. Peart in his closing speech.

6. Notwithstanding that the earliest date of the conspiracy alleged was the 1st October, 2001 the trial judge admitted evidence of matters before that date.

Dealing with each of these grounds in turn and starting with the first the court is of the view that this ground of appeal must fail. Section 9(4) of the Criminal Law Act, 1997 reads as follows:

"Where, on a person's trial on indictment for any offence except treason, murder to which section 3 of the Criminal Justice Act, 1990, applies or murder, the evidence does not warrant a conviction for the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence, that person may be found guilty of that other offence or of an offence of which he or she could be found guilty on an indictment specifically charging that other offence."

The first point to be made about this subsection...

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