DPP v Devlin
|Mr Justice Fennelly
|06 July 2012
| IECCA 70
|Court of Criminal Appeal
|06 July 2012
 IECCA 70
COURT OF CRIMINAL APPEAL
EXPLOSIVE SUBSTANCES ACT 1883 S4 (UK)
OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S15(4)
OFFENCES AGAINST THE STATE ACT 1939 S30
CRIMINAL JUSTICE ACT 1984 S18
CRIMINAL JUSTICE ACT 1984 S19
CRIMINAL JUSTICE ACT 1984 S19A
CRIMINAL JUSTICE ACT 2007 S28
CRIMINAL JUSTICE ACT 2007 S29
CRIMINAL JUSTICE ACT 2007 S30
MIN FOR POSTS & TELEGRAPHS v CAMPBELL
DPP v GILLIGAN 2005 IESC 78 2005/20/3987
Crime - Offences against the State - Explosive substances - Possession of - Reasonable suspicion that possession not for lawful object - Conviction - Appeal against
Facts: Following an investigation into Irish Republican Army activity in Waterford, the appellant had been observed opening a boot of a car as if to inspect the contents. The Gardai moved in at this point, and discovered what later was confirmed to be a pipe bomb. The appellant, who was found in possession of gloves, a knife and insulation tape, denied any knowledge of the device, and claimed he would not have travelled in the car if he had been aware of the device.
The appellant was convicted in 2011 by the Special Criminal Court ("the SCC"), the SCC having found the appellant had failed to account in regards of a number of questions put to him. The appellant now sought to appeal his conviction.
Held by Fennelly J, that the appellant's ground of appeal could be reduced to three specific points. Firstly the SCC had fallen into error in finding the pipe bomb was in his possession. Secondly, the SCC had incorrectly drawn inferences as to his failure to account for the pipe bomb and finally the evidence relied upon by the SCC in regards of the gloves, knife and tape was not capable of corroborating his possession of the pipe bomb.
The Court's role in this appeal was to consider the decision of the SCC in relation to the reasons given for the guilty verdict. The SCC had not resolved explicitly whether the pipe bomb was visible merely by looking into the boot. Therefore the Court would assume that it was not readily visible without opening the containing rucksack. The appellant's answers during interview therefore were of crucial importance to finding the appellant guilty.
The SCC's judgment did not refer to the appellant's denials during the Garda interview, and the Court could only assume those answers were not persuasive for the SCC in finding the appellant guilty. The Court considered that the appellant had not failed to account for the presence of the corroborating evidence during his interview, and in any event the evidence did not implicate the appellant in possession of the pipe bomb.
The appeal would therefore be allowed.
1. The Appellant was convicted on 7 th July 2011 by the Special Criminal Court of the offence of possession of an explosive substance (a "pipe bomb") in such circumstances as to give rise to a reasonable suspicion that it was not in his possession for a lawful object contrary to s. 4 of the Explosive Substances Act, 1883 as amended by s. 15(4) of the Offences against the State (Amendment) Act, 1998. He was sentenced to a term of seven and a half years imprisonment dating from 15 th October 2010, the date of his arrest.
2. He appeals to the Court against his conviction. Leave to appeal is no longer required.
3. On 15 th October 2010, members of the Garda Síochána from the Special Detective Unit at Harcourt Square, Dublin were conducting an investigation into the activities of members of the IRA operating in the Waterford area. Detective Sergeant James Blackwell was in charge of a surveillance operation which led to the present prosecution. The basic facts are that the appellant was collected by a certain Sean Ryan outside Heuston Station, Dublin and driven directly to Waterford. They stopped at a filling station, The appellant was observed opening the boot of the car and looking inside. The gardaí approached and saw a rucksack, which contained a pipe bomb, inside the boot. Sean Ryan comes from Waterford. He was independently prosecuted and convicted, having pleaded guilty on arraignment.
4. All the events took place on 15 th October 2010. The story begins at Heuston Station. At 5:30 pm, the appellant was seen by several members of the garda surveillance team on foot outside the main entrance to the Station. He walked in the direction of a taxi rank. A motor car, a silver Hyundai Atos registration number 06 D 45708, driven by Sean Ryan, was parked between the entrance to the station and the taxi rank. The appellant got into the passenger seat. The car drove initially toward the city, but turned back over the river along Victoria Quay and back out towards the west and ultimately the south.
5. The ear was followed by no less than three unmarked garda cars. Apart from one petrol stop, it drove directly to Waterford. The appellant was at all times a passenger.
6. The car stopped for about fifteen to twenty minutes at a housing estate called May Park Village in Waterford. Although it was observed unoccupied at some point during that stop, there was no evidence of the occupants leaving or re-entering the car. It was driven out with the same two persons in it. It was driven along the Cork-Dunmore East Road for about five or six miles and turned left on to the Kilmeaden Road. It pulled into the Top filling station.
7. Detective Sergeant Blackwell saw the appellant getting out of the passenger side of the car. He went to the boot, which he opened. The Detective Sergeant decided to move in. Sean Ryan got out of the driver's side at that point and stood there. Detective Sergeant Blackwell saw the appellant looking into the boot. He "was at something in the boot." Detective Garda Karina Ryan also saw the appellant get out of the car and go to the boot. He pushed up the boot lid. She did not see him doing anything, but she also said that he "was at something in the boot." She identified herself as a member of the Garda Síochána told him that she believed he was a member of the IRA. She asked him what he was doing at the boot and he would not answer. Detective Garda Alice Tierney said that she heard her asking this twice without answer.
8. Detective Garda Tierney arrived in another garda car when the boot was already open. Inside the boot, where it would clasp down, was a black rucksack. In her direct evidence, she said that the rucksack was open and that she looked into it. She saw what she believed to be a pipe bomb. She showed this to Detective Sergeant Blackwell and another member.
9. In cross-examination, Detective Garda Tierney was asked whether it was after she had searched in the rucksack that she found the pipe bomb. She answered:
"No, the rucksack was open. It was a zip-well I think it was a zip it was open, and I just parted the sleeves, I looked in and what I saw inside I believed to be a pipe bomb."
10. She agreed that she had "parted the two leaves at the top" of the rucksack. It was put to her that it was after she had done that and parted the two leaves at the top of the rucksack that she could "see that there was something in it that [she] believed was a pipe bomb." So far as she could see there was nothing else in the bag.
11. The gardaí kept away from the car once the pipe bomb had been discovered. Lieutenant Clodagh McConnell, a qualified Explosive Ordinance Officer attached to Collins Barracks, Dublin was called to the scene. She arrived there with her team and examined the explosive device with the assistance of a military robot with a camera attached. Her opinion, given in evidence, was that it had all the components of a viable improvised explosive device. Those components included powder which tested positive for nitrates, nitro-esters and nitromethanes, packed tightly in the pipe bomb as well a clock and a flash bulb with two connecting wires to act as a detonator. The evidence of Lieutenant McConnell was that, if the device had functioned as intended, it would "serve [sic] considerable damage to anything in close proximity" and even its components could have "caused shrapnel and could have caused damage to person or even property." The device was rendered safe and destroyed in a controlled explosion.
12. The evidence as to the nature of the device was not contested. It should be noted that part of it was wrapped in black insulation tape.
13. The following items were found, on search, to be on the person or in the clothing of the appellant;
· - a pair of black woollen gloves;
· - a partially used roll of black insulation tape;
· - a box cutter knife.
14. The appellant was arrested pursuant to s. 30 of the Offences against the State Act, 1939 and taken to Waterford Garda Station. He was informed that he was being arrested for membership of an unlawful organisation and for possession of explosive substances. He was there questioned after caution. Evidence was given of five interviews. Four of these took place from just before 9 am to almost 9 pm on 16 th October. A fifth took place commencing at 9:39 on the following morning.
15. In the first interview, the appellant was asked where he had been the day before. His answer was:
"I am not and have never been a member of any illegal organisation. I wasn't and never have been in possession of any explosive substance or explosive material."
16. He said that he did not want to answer any questions other than relating to the subject matter of his arrest. He confirmed that he was aware that the reason for his arrest was for membership of an unlawful organisation and possession...
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