DPP v Ebbs
|03 March 2011
| IECCA 5
|Court of Criminal Appeal
|[C.C.A. No. 8 of,08/09
|03 March 2011
 IECCA 5
COURT OF CRIMINAL APPEAL
"Has with" - Knowledge - Mens rea - Whether "has with" required element of knowledge - Judges' Rules - Discretion - Whether trial judge entitled to admit statement in evidence - Minister for Posts and Telegraphs v Campbell  IESC 48, distinguished; R v Cugullere  1 WLR 858 approved; People (Director of Public Prosecutions) v Farrell followed - Firearms and Offensive Weapons Act 1990 (No 12), s 9 - Criminal Procedure Act 1993 (No 40), s 3 - One conviction affirmed, appeal on 2 convictions allowed (8/2009 - CCA - 3/3/2011)  IECCA 5 and People (Director of Public Prosecutions) v Byrne followed; CC v Ireland
People (Director of Public Prosecutions) v Ebbs
Facts The appellant was convicted of three counts of having in a public place without lawful authority or reasonable excuse a prohibited article for the purpose of causing injury to or incapacitating a person, contrary to s.9(4) of the Firearms and Offensive Weapons Act 1990 ("the Act of 1990"). The appellant was given a suspended sentence of 18 months. Evidence was given at the trial that the appellant was stopped whilst driving a car that had broken a red light. The Gardaí gave evidence that while the appellant was being arrested, he reached into the glove compartment and took out a stun gun. A search of the car ensued and a baton was found along with a samurai sword. When questioned as to these articles, the appellant replied "Bray is a dangerous place". The conviction on count 1 (the stun gun) was unanimous and the convictions on counts 2 and 3 (the baton and samurai sword) were majority verdicts. On behalf of the appellant it was contended that the prosecution had failed to prove possession in order to show that the appellant knew that he had the items in question in his possession. The trial judge had taken the view that it was not necessary to prove intention.
Held by the Court of Criminal Appeal in quashing two of the counts and affirming one of the counts. The concept of possession in law includes an element of knowledge. In criminal law "possession" might have a number of features, but its unvarying characteristic was knowledge of the existence of the article in question. Fundamentally the requirement of mens rea was an important feature of the criminal law and very clear language should be required to establish an intention on the part of the Oireachtas to remove it. In the circumstances therefore, it appeared that proof of the offence under s.9 of the Act of 1990 required proof of mens rea. If the jury accepted the evidence that the accused reached into the glove compartment and took out and activated the stun gun, then a direction on the need to establish mens rea could not have altered the verdict since that evidence, whether on its own or together with the statement, demonstrated the necessary knowledge and intent. The Court would quash the other two convictions and affirm the conviction of the appellant in respect of the stun gun.
JUDGES RULES r9
DPP, PEOPLE v FARRELL
R v CUGULLERE 1961 1 WLR 858 1961 2 AER 343
PREVENTION OF CRIME ACT 1953 S1 (UK)
PREVENTION OF CRIME ACT 1953 S1(1) (UK)
DPP, PEOPLE v MURRAY
C (C) v IRELAND & ORS
MCAULEY & MCCUTCHEON CRIMINAL LIABILITY: A GRAMMER 2000 215
THE QUEEN v HEHIR 1895 2 IR 709
R v ASHWELL 1885-86 16 QBD 190
JOWITT & WALSH THE DICTIONARY OF ENGLISH LAW 1ED 1959 1367
DPP v BYRNE & ORS 1998/15/5287
ARCHBOLD & RICHARDSON ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE 1997 PARA 26.59
MIN FOR POSTS & TELEGRAPHS v CAMPBELL
LAW REFORM CMSN REPORT ON VAGRANCY & RELATED OFFENCES (LRC 11-1985)
FIREARMS ACT 1925
FIREARMS ACT 1971
FIREARMS ACT 1964 S27A
R v MCCALLA 1988 87 CR APP R 372
ORMEROD SMITH & HOGAN CRIMINAL LAW 11ED 2005 588
R v CITY OF SAULT SAINTE MARIE 85 DLR (3D) 161 1978 2 SCR 1299
SHANNON REGIONAL FISHERIES BOARD v CAVAN CO COUNCIL 1996/15/4588
CHARLETON & ORS CRIMINAL LAW 1999
Judgment of the Court delivered on the 3rd day of March 2011 by O'Donnell J.
1 On the 24 th of July 2008, Ian Ebbs ("the appellant" or "the accused") was convicted in Wicklow Circuit Court on three counts of having with him in a public place without lawful authority or reasonable excuse a prohibited article for the purpose of causing injury to or incapacitating a person, contrary to s.9(4) of the Firearms and Offensive Weapons Act 1990 ("the Act of 1990"). The appellant was given a suspended sentence of 18 months. Against these convictions he now appeals.
On the 22 nd of October 2006 two members of An Garda Síochána were on duty at Main Street, Bray. At approximately 4 a.m. Garda Ennis observed a motor car breaking a red light. She stopped the car which was being driven by the appellant, who was not the registered owner of the vehicle. Garda Ennis and her colleague gave evidence that as the appellant was in the course of being arrested, he reached into the glove compartment and took out something which appeared to be a torch and got out of the car. He then pressed a button on the article and what were described as two electrical volts lit up the top of it. It transpired that the article was a stun gun. This was the subject matter of count 1 on the indictment. The appellant was arrested. The car was then searched. A baton was found in the same glove compartment and a samurai sword was found in the boot. These items were the subject of counts 2 and 3 on the indictment respectively. Garda Ennis said that when questioned as to these articles, the appellant replied "Bray is a dangerous place". Although the evidence of the gardaí was challenged in cross-examination, they maintained their testimony, and no evidence was called on behalf of the appellant. The conviction on count 1 (the stun gun) was unanimous and the convictions on counts 2 and 3 (the baton and samurai sword) were on a majority verdict.
On this appeal three points were canvassed. One related to the closing speech of counsel for the prosecution and was not pressed on the hearing of this appeal. A second ground advanced was that the statement "Bray is a dangerous place", although made after a caution, was not noted in the garda notebook or otherwise offered to the appellant for his signature. This, it was said, was a breach of rule 9 of the Judges' Rules. The trial judge nevertheless admitted the evidence, and this Court is satisfied he was correct to do so. Rule 9 of the Judges' Rules principally addresses the making of formal statements, rather than the type of exchange dealt with here. The Court has a discretion to admit evidence obtained in breach of the Judges' Rules. In the words of O'Higgins C.J. in The People v. Farrell 21:-
"The breaches and the explanations (if any) together with the entire circumstances of the case are matters to be taken into consideration by the trial judge before exercising his judicial discretion as to whether or not he will admit such statement in evidence..."
4 Here, the 'entire circumstances of the case' were that a single answer was given in the course of a fairly standard road traffic incident in the early hours of the morning. In the circumstances, the Court considers that the trial judge was entitled to exercise his discretion to admit the statement in evidence.
5 The main ground advanced on behalf of the appellant related in part to the evidential issue discussed above. Section 9(4) of the Act of 1990 creates a new offence. It provides as follows:-
"Where a person, without lawful authority or reasonable excuse (the onus of proving which shall lie on him), has with him in any public place-"
(a) any flick-knife, or
(b) any other article whatsoever made or adapted for use for causing injury to or incapacitating a person,
he shall be guilty of an offence."
6 In the course of the hearing, the trial judge, who it should be said conducted the hearing with courtesy, patience and fairness, made it clear that he considered that the only issue was whether the accused had lawful authority or reasonable excuse for having the items. He seemed to take it for granted that the accused had the articles with him, and accordingly did not consider it necessary for the prosecution to prove that the accused knew he had the items at the time in question. In this approach to the section he was supported by the prosecution. Counsel for the accused argued repeatedly that it was necessary for the prosecution to prove possession, which it was argued involved establishing that the accused knew that he had the items in question. The trial judge politely but firmly rejected that argument. On day 2, p.15 of the transcript, he said "the intention does not come into this section". On p.21 he said "certainly knowledge does not come into it either under the section", and at p.22 he said "well I am not going to say that the prosecution must prove that he had knowledge or that he was in actual possession as defined - what we would define...
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