D.P.P.-v- Mark Desmond, [2004] IE CCA 46 (2004)

Docket Number:18/03
Judge:McCracken J.
 
FREE EXCERPT

COURT OF CRIMINAL APPEAL

18/03

McCracken J

Murphy J

Herbert J

Between:

Director of Public Prosecutions Prosecutor/Respondent

ANDMark Desmond Accused/Appellant

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

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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...

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