Donnelly v Judges of Dublin Metropolitan District Court

JudgeMr. Justice Noonan
Judgment Date03 March 2015
Neutral Citation[2015] IEHC 125
CourtHigh Court
Docket Number[2014 No. 17 JR]
Date03 March 2015

[2015] IEHC 125


[No. 17 JR/2014]
Shane Donnelly v Judges of Dublin Metropolitan District Court & Ors.
No Redaction Needed
Approved Judgment





Crime and sentencing – S. 9 of the Firearms and Offensive Weapons Act 1990 – Adequate explanation – Ar. 38.1 and Ar. 40.4.1 of the Constitution of Ireland – Right to silence – Due process

Facts: The applicant sought an order of prohibition restraining the first named respondents from trying the applicant in the criminal proceedings. The applicant sought an order for injunction from restraining the second named respondent from prosecuting the applicant and a declaration that s. 9 (6) of the Firearms and Offensive Weapons Act 1990 is unconstitutional and incompatible with s. 5 of the European Convention on Human Rights Act 2003.

Mr. Justice Noonan held that the application for an order of prohibition and an order of injunction would be denied and therefore, accordingly the application would be dismissed. The Court found that s. 9 (6) of the Firearms and Offensive Weapons Act 1990 was not incompatible with the Constitution or European Convention. The Court observed that s. 9 (6) neither intended to curb right of silence of the accused nor to prove him guilty if he failed to offer adequate explanation for possession of an item. The Court held that the applicant having denied knowledge of possession of the item could not allege that he was not warned about the consequences of failing to adequately explain the possession of that item.


1. In the within proceedings, the applicant seeks an order of prohibition restraining the first named respondents from trying the applicant on foot of proceedings entitled The Director of Public Prosecutions (Garda Wayne Gilgunn) v. Shane Donnelly, the subject matter of national charge sheet 14002529, an injunction restraining the second named respondent from prosecuting the applicant in the same proceedings, a declaration that s.9 (6) of the Firearms and Offensive Weapons Act 1990 ("the Act") is invalid having regard to Articles 38.1 and 40.4.1 of the Constitution of Ireland and a declaration under s. 5 of the European Convention on Human Rights Act 2003 that the subsection is incompatible with the State's obligations under the Convention.

Background Facts

2. There is no dispute on the facts. On the 8th August, 2013 at around 11.20 pm, Garda Gilgunn was on patrol as an observer in an unmarked police car with a colleague at Sundrive Road, Crumlin when he observed the applicant appearing to conceal an object in his left sleeve before entering a Chinese restaurant. Shortly thereafter, the applicant ran out of the restaurant onto a green area in front where the Garda observed the applicant drop a long wooden object beside a tree and continue running away. Garda Gilgunn stopped him and went back to the tree where he found the wooden object which he describes as a baseball bat. He returned to the applicant and asked him why he would have the bat whereupon the applicant denied all knowledge of it. Garda Gilgunn then proceeded to arrest the applicant, caution him in the usual manner and convey him to Crumlin Garda Station. Shortly thereafter, the applicant was charged with an offence contrary to s. 9 (5) of the Act and released on station bail.


3. The matter came before the District Court on the 2nd September, 2013 when evidence of arrest, charge and caution was given and a copy of the prosecuting Garda's statement furnished to the applicant's solicitor and the matter adjourned to the 4th November, 2013. On the latter date the summary trial was fixed for hearing on the 22nd November, 2013, when the applicant applied to vacate the date in order to bring the within judicial review proceedings. Leave was granted by Peart J. on the 13th January, 2014.

The Legislation

4. Section 9 of the Act insofar as relevant to these proceedings provides as follows:


"(5) Where a person has with him in any public place any article intended by him unlawfully to cause injury to, incapacitate or intimidate any person either in a particular eventuality or otherwise, he shall be guilty of an offence.

(6) In a prosecution for an offence under subsection (5), it shall not be necessary for the prosecution to allege or prove that the intent to cause injury, incapacitate or intimidate was intent to cause injury to, incapacitate or intimidate a particular person; and if, having regard to all the circumstances (including the type of the article alleged to have been intended to cause injury, incapacitate or intimidate, the time of the day or night, and the place), the court (or the jury as the case may be) thinks it reasonable to do so, it may regard possession of the article as sufficient evidence of intent in the absence of any adequate explanation by the accused."

The Pleadings

5. In his statement of grounds, the applicant contends that subsection (6) in allowing a court to draw an adverse inference from the silence of an accused person and failing to require the administration of a caution to such person that such inference may be drawn from his failure to provide an adequate explanation constitutes an unlawful infringement of his right to silence and of his right to be tried in due course of law contrary to Articles 38.1 and 40.4.1 of the Constitution. He contends further that the reference to "adequate explanation" is insufficiently precise to enable the accused to know what form of explanation may suffice to avoid prosecution.


6. In their statement of opposition, the respondents plead that the applicant failed to institute these proceedings within the three month time limit provided for in Order 84, rule 21 of the Rules of the Superior Courts. They plead in the alternative that the proceedings are premature and the applicant does not enjoy the requisite locus standi to bring them. They contend that the evidentiary burden placed upon an accused person by the subsection is not incompatible with his or her right to silence and the explanation contemplated by the subsection may be provided through a variety of means up to and including during the course of the trial. The respondents deny that the subsection breaches any provision of the Constitution or Convention by failing to provide for cautioning a suspect but if it does, same can be read into it. They contend that if the Act impinges upon the applicant's rights under the Constitution or Convention, it does so in a manner which is proportionate and lawful.


7. Mr. Devally SC for the applicant submitted on the time issue that the delay was very modest and was explained in the grounding affidavit of the applicant's solicitor. He relied on Damache v. DPP [2012] 2 I.R. 266, where there had been an unexplained nine month delay in bringing a constitutional challenge to legislation by way of judicial review where the court held that as the proceedings might yet be brought by plenary summons, dismissal on that ground would merely serve to increase costs. In any event, there is no prejudice to the respondents herein.


8. With regard to prematurity, he relied on East Donegal Co-op v. Attorney General [1970] 1 I.R. 317 and Curtis v. Attorney General [1985] I.R. 458 as authority for the proposition that where there was a reasonable apprehension of rights being adversely affected, it was unnecessary to wait until that actually occurred before challenging the provision in issue. He argued further that there was no person with better locus standi than the applicant and cited Cahill v. Sutton [1980] 1 I.R. 269 in that regard.


9. On the substantive issue, the applicant accepted the proposition that in general, legislation which allows the court to draw adverse inferences from silence is capable of being constitutional as in Heaney v. Ireland [1996] 1 I.R. 580. He referred to Rock v. Ireland [1997] 3 I.R. 484, where the Supreme Court upheld the validity of ss. 18 and 19 of the Criminal Justice Act 1984, which permitted inferences to be drawn from a person's failure to account for certain matters. However, that statute expressly provided for the administration of a caution regarding the consequence of failing to provide an account and further that an accused person could not be convicted solely on the basis of failing to give an account. There are no such safeguards in the provision under challenge here.


10. Mr. Devally further contended that in Murray v. United Kingdom (1996) 22 E.H.R.R. 29, the European Court of Human Rights held that the drawing of inferences where there is no access to a lawyer violated Article 6 of the Convention. He said that the impugned section further failed the proportionality test posited in Heaney.


11. Finally, he submitted that there was a close similarity between the requirement to provide an adequate explanation and the requirement to provide a "satisfactory explanation" which was found unconstitutional in Dokie v. DPP [2011] 1 I.R. 805.


12. Mr. Power SC for the respondents submitted that the Act was entitled to the presumption of constitutionality and it was further to be presumed that a court operating its provisions would act in accordance with natural and constitutional justice. Even if a particular reading of the Act rendered the impugned provision unconstitutional, the court was obliged to adopt any available construction that rendered it compatible with the Constitution.


13. He emphasised the importance of the distinction between an evidential burden and a legal one which shifted the onus of proof. The provision in issue dealt with the former, not the latter. He said that the applicant's complaint that he was not warned about the...

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