DPP v Foley

• Jurisdiction: Ireland
• Judge: Budd J.
• Judgment Date: 18 July 1994
• Neutral Citation: 1998 WJSC-CCA 1018
• 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

1998 WJSC-CCA 1018

79/91

COURT OF CRIMINAL APPEAL

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 1991 along 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 1976and 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 visible, and there was these various items of electronic equipment.

14 The accused, Mr. Caoimhanach, has given evidence and has stated that he called to the flat to visit a friend, that there he was introduced for the first time to Mr. Foley, and that he had a cup of tea there and was sitting and talking to the person that we now know to be Mr. O'Treasaigh, then known as Paul Fitzgerald, and that he didn't observe any of the firearms or take any notice of the surveillance equipment. The Court in considering his evidence does not have to be satisfied as to its veracity. The obligation on the Court is to consider could it reasonably be true, because mens rea is an essential ingredient to the offence with which Mr. Caoimhanach has been charged, and if his explanation could reasonably be true, it means, in effect, that he didn't have the mens rea necessary to constitute the offence. The Court has considered his evidence and has come to the conclusion that what he says could reasonably be true and, that being so, he is entitled to a verdict of not guilty in respect of each of the offences with which he is charged.

15 The matter is completely and utterly different with regard to the other two accused, Mr. O'Treasaigh and Mr. Foley. I have outlined very briefly the circumstances proved and the facts proved by the prosecution, and the Court is satisfied beyond all reasonable doubt that both Mr. O'Treasaigh and Mr. Foley were in joint possession of the guns and ammunition which were the subject-matter of the offence with which they have been charged and to which they have pleaded not guilty. In coming to this conclusion the Court has carefully considered the authorities that have been opened to it by counsel on behalf of Mr. Caoimhanach and Mr. Foley, but the Court is satisfied that the circumstances in this case are completely and utterly different to the circumstances existing in the two cases to which it was referred. In this particular case, the guns were in the open, Mr. Foley was sitting on the bed beside the shot gun; the handgun was also clearly visible, as clearly shown in the photographs. The Court cannot come to any other conclusion but that both Mr. O'Treasaigh and Mr. Foley were in possession of the arms and the ammunition, and having regard to the surveillance equipment and, indeed, mere possession of the arms and the ammunition, the Court has no difficulty in being satisfied beyond all reasonable doubt that the possession jointly held by them was in such circumstances as to give rise to a reasonable inference that they had not got them in their possession or under their control for a lawful purpose. Consequently, the Court finds Mr. O'Treasaigh and Mr. Foley guilty of the two offences with which they have been charged".

16 The role and function of the Court of Criminal Appeal is succinctly set out in the Judgment of O'Higgins C.J. in the People -v- Madden [1977] I.R. 336 in which it was stated by the Court of Criminal Appeal (O'Higgins C.J., Finlay P. and Gannon J.) that in hearing an appeal from a conviction by the Special Criminal Court, the Court of Criminal Appeal will...