DPP v Foley

• Jurisdiction: Ireland
• Judge: Budd J.
• Judgment Date: 18 July 1994
• Neutral Citation: 1995 WJSC-CCA 505
• Court: Court of Criminal Appeal
• Docket Number: 79/91
• Date: 18 July 1994

DPP v. FOLEY

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

ARAN FOLEY

APPLICANT

1995 WJSC-CCA 505

79/91

COURT OF CRIMINAL APPEAL

Synopsis:

COURT OF CRIMINAL APPEAL

Jurisdiction

Appeal - Determination - Function - Scope - Findings of court of trial - Evidence to support findings - Conviction warranted by findings - Refusal to entertain lurking doubt about conviction - (79/91 - Court of Criminal Appeal - 18/7/94) - [1995] 1 I.R. 267

|The People v. Foley|

CRIMINAL LAW

Offence

Firearms - Possession - Duality - Evidence - Sufficiency - Court of trial - Findings of facts - Supporting evidence - Function of appellate court - Accused's right to remain silent - Responsibility for consequence of silence - Firearms Act, 1964, s. 27A - Criminal Law (Jurisdiction) Act, 1976, s. 8 - Criminal Justice Act, 1984, s. 14 - (79/91 - Court of Criminal Appeal - 18/7/94)

|The People v. Foley|

WORDS AND PHRASES

"Possession"

Firearms - Discovery - Evidence - Sufficiency - Accused and co- accused found in room with gun and ammunition - Articles clearly visible - Dual possession - (79/91 - Court of Criminal Appeal - 18/7/94) - [1995] 1 I.R. 267

|The People v. Foley|

Citations:

FIREARMS ACT 1964 S27(A)(1)

CRIMINAL LAW (JURISDICTION) ACT 1976 S8

CRIMINAL JUSTICE ACT 1984 S14(4)

DPP, PEOPLE V MADDEN 1977 IR 336

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48

SS GAIRLOCH, THE 1899 2 IR 1

DPP, PEOPLE V EGAN 1990 ILRM 780

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S3

COURTS OF JUSTICE ACT 1924 S30

DPP,PEOPLE V O'BRIEN 1989 3 FREWEN 20

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S12

CRIMINAL APPEAL ACT 1968 S2(1)

R V COOPER 1969 53 CAR 82

STAFFORD V DPP 1974 AC 878

NORTHERN BANK FINANCE CORPORATION LTD V CHARLTON 1979 IR 172

R V WHELAN 1972 NI 153

WARNER V METROPOLITAN POLICE COMMISSIONER 1969 2 AC 256

R V MURPHY 1971 NI 193

MOORS V BURKE 1919 26 CLR 265

POLICE OFFENCES ACT 1915 S40

MIN FOR POSTS & TELEGRAPHS V CAMPBELL 1966 IR 69

WILLIAMS V DOUGLAS 1949 78 CLR 521

GOLD BUYERS ACTS 1921–1948 S36

SULLIVAN V EARL OF CAITHNESS 1976 1 AER 844

SWEET V PARSLEY 1970 AC 132

GANNON (HONG KONG) LTD V AG FOR HONG KONG 1985 AC 1

R V WARNER 1969 2 AC 256

DPP V O'SHEA 1983 ILRM 592

WRIGHT, POSSESSION IN THE COMMON LAW (1888) 119

OFFENCES AGAINST THE STATE ACT 1939 S44

OFFENCES AGAINST THE STATE ACT 1939 S44(2)

COURTS OF JUSTICE ACT 1924 S28

COURTS OF JUSTICE ACT 1924 S29

COURTS OF JUSTICE ACT 1924 S32

COURTS OF JUSTICE ACT 1924 S33

COURTS OF JUSTICE ACT 1924 S34

COURTS OF JUSTICE ACT 1924 S35

CRIMINAL JUSTICE ACT 1984 S14

CRIMINAL JUSTICE ACT 1960

FIREARMS ACT 1964 S27(1)

FIREARMS ACT 1964 S27(1)(a)

FIREARMS ACT 1964 S27(1)(b)

FIREARMS ACT 1964 S27(2)

FIREARMS ACT 1964 S27(A)(2)

FIREARMS ACT 1964 S27(B)(1)

FIREARMS ACT 1964 S27(B)(2)

CRIMINAL APPEAL ACT 1907 UK

COURTS OF JUSTICE ACT 1928 S5

COURTS OF JUSTICE ACT 1928 S6

COURTS OF JUSTICE ACT 1928 S7

COURTS OF JUSTICE ACT 1924 S31

TOWERS & CO LTD V GRAY 1961 2 QB 351

R V SLEEP (1861) 169 ER 1296

DRUGS (PREVENTION OF MISUSE) ACT 1964 UK

USA & FRANCE V DOLFUS MIEG ET CIE SA & BANK OF ENGLAND 1952 AC 582

COURTS OF JUSTICE ACTS 1924 – 1961

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S12(2)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S12(1)

1 Judgment of the Court delivered by Budd J. on the 18th day of July 1994.

2 This is an application for leave to appeal against conviction and sentence brought by Aran Foley who was convicted in the Special Criminal Court on 2nd May 1991. He had been tried on 30th April 1991 and 2nd May 1991along with two co-accused, Matthew O'Treasaigh and Deaglan Caoimhanach. The Applicant was convicted on Count No. 3, the Statement of Offence being possession of firearms in suspicious circumstances contrary to Section 27(A)(1) of the Firearms Act 1964as inserted by Section 8 of the Criminal Law (Jurisdiction) Act 1976and amended by Section 14(4) of the Criminal Justice Act 1984; particulars of offence were Matthew O'Treasaigh. Deaglan Caoimhanach and Aran Foley on the 22nd day of December 1990 at No. 251 North Circular Road in the County of Dublin had in their possession or under their control one double-barrel sawn-off shot gun and one Llama semi-automatic pistol, firearms, in such circumstances as to rise to a reasonable inference that they had not got them in their possession or under their control for a lawful purpose. He was also convicted of Count No. 4, the Statement of Offence being possession of ammunition in suspicious circumstances contrary to Section 27(A)(1) of the Firearms Act 1964as inserted by Section 8 of the Criminal Law (Jurisdiction) Act and amended by Section 14 of the Criminal Justice Act 1984, the particulars of offence being Matthew O'Treasaigh, Deaglan Caoimhanach and Aran Foley on the 22nd day of December 1990 at No. 51 North Circular Road in the County of the City of Dublin had in their possession or under their control 25 rounds of 9 mm calibre ammunition and 12 rounds of 12 gauge shot gun cartridges in such circumstances as to rise to a reasonable inference that they had not got them in their possession or under their control for a lawful purpose. Deaglan Caoimhanach was found not guilty whereas both the Applicant, Aran Foley, and Matthew O'Treasaigh were both convicted on Counts 3 and 4 and were similarly sentenced to be imprisoned for a period of 8 years on each of Counts 3 and 4, the said sentences to run concurrently to date from 22nd December 1990. An application by Counsel for the Applicant for a certificate of leave to appeal was refused, but the Court of Criminal Appeal on the 17th May 1993 granted an enlargement of time within which to make application for leave to appeal against conviction and sentence and for leave to file grounds of appeal. The grounds of appeal were contained in the grounds of application dated 15th April 1993 and filed on 17th May 1993 pursuant to Order of the Court of Criminal Appeal dated 17th May 1993.

3 The relevant provisions as amended read as follows:-

4 2 "27(1) A person shall not use or produce a firearm or an imitation firearm -

5 (a) for the purpose of or while resisting the arrest of such person or of another person by a member of the Garda Siochana, or

6 (b) for the purpose of aiding or in the course of the escape or rescue of such person or of another person from the custody of the Garda Siochana or of the person in charge of a prison, remand institution, St. Patrick's Institution or an institution where criminal lunatics (within the meaning of the Criminal Justice Act 1960) are detained.

7 (2) A person who contravenes subsection (1) of this section shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.

8 2 27A(1) A person who has a firearm or ammunition in his possession or under his control in such circumstances as to give rise to a reasonable inference that he has not got it in his possession or under his control for a lawful purpose shall, unless he has it in his possession or under his control for a lawful purpose, be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.

9 (2) In the application of Section 2 of the Criminal Law (Jurisdiction) Act 1976, to this section, it shall be presumed, unless the contrary is shown, that a purpose that is unlawful in the State is unlawful in Northern Ireland.

10 2 27B(1) A person who has with him a firearm or an imitation firearm with intent to commit an indictable offence, or to resist or prevent the arrest or himself or another, in either case while he has the firearm or imitation firearm with him, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.

11 (2) In proceedings for an offence under this section proof that the accused had a firearm or imitation firearm with him and intended to commit an indictable offence or to resist or prevent arrest is evidence that he intended to have it with him while doing so."

12 The verdict of the Court given on the second day of the trial being 2nd May 1991, was as follows:-

"Each of the three accused are charged with the offences set out at Counts No. 3 and 4 of the indictment preferred against them. Each of the accused has pleaded not guilty to these offences and the evidence against each accused must be considered separately. The onus is on the prosecution to establish the guilt of each of the accused beyond all reasonable doubt and it is under an obligation to satisfy the Court beyond all reasonable doubt of the ingredients of the offences with which the accused are charged and the guilt of each of the accused. If there is any doubt in the minds of the Court in respect of any aspect of the evidence, the accused is entitled to the benefit of that doubt."

13 The circumstances leading to the arrest and the charge of each of the accused can be very briefly summarised because they are not really in issue. On the 22nd December, 1990, a group of Guards in possession of a search certificate, duly issued in accordance with the provisions of the Offences Against the State Act, called to search premises at 251 North Circular Road in the County of the City of Dublin. The door was opened by the accused, Mr. O'Treasaigh, who stepped back and the Gardai entered the premises, which was a comparatively small sized bed-sitting room, and the three accused were present there. A shot gun was on the bed, one of the beds, and the accused, Mr. Foley, was sitting on that bed very close to the shotgun. The accused, Mr. Caoimhanach, was standing in the vicinity of the fireplace, and there was a revolver on the heating unit shown in the photograph clearly visible to anybody with any degree of observation, and there was the hold-all with the butt of a shot gun clearly...