DPP v Foley

• Jurisdiction: Ireland
• Judgment Date: 01 January 1995
• Date: 01 January 1995
• Docket Number: [C.C.A. No. 79 of 1991]
• Court: Court of Appeal (Ireland)

The People (Director of Public Prosecutions) v. Foley

The People (Director of Public Prosecutions)

and

Aran Foley

[C.C.A. No. 79 of 1991]

Court of Criminal Appeal

Criminal law - Firearms - Possession - Concept of 'possession' - Knowledge and control - Mens rea - Weight to be attached to accused's silence - Onus of proof - Quantum of proof-Firearms Act, 1964 (No. 1), s. 27A, sub-s. 1.

Criminal law - Appeal - Role and function of the Court of Criminal Appeal - Inferences which may be drawn from evidence.

Words and phrases - 'Possession' - Inferences which may be drawn from evidence - Firearms Act, 1964 (No. 1), s. 27A, sub-s. 1.

Section 27A, sub-s. 1 of the Firearms Act, 1964, as inserted by s. 8 of the Criminal Law (Jurisdiction) Act, 1976, and amended by s. 14, sub-s. 4 of the Criminal Justice Act, 1984, provides:—

"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 to imprisonment for a term not exceeding ten years."

The applicant was tried and convicted by a Special Criminal Court on the 2nd May, 1991, on two counts (i) of possession of firearms in suspicious circumstances contrary to s. 27A, sub-s. 1 of the Firearms Act, 1964, as inserted by s. 8 of the Criminal Law (Jurisdiction) Act, 1976, and amended by s. 14, sub-s. 4 of the Criminal Justice Act, 1984; and (ii) of possession of ammunition in suspicious circumstances contrary to s. 27A, sub-s. 1 of the Firearms Act, 1964, as inserted by s. 8 of the Criminal Law (Jurisdiction) Act, 1976, and amended by s. 14 of the Criminal Justice Act, 1974. There were two other co-accused tried with the applicant one of whom O'T. was also convicted. The applicant and O'T. were sentenced to 8 years imprisonment on both counts the sentences to run concurrently. Leave to appeal was refused but on the 17th May, 1993, the Court of Criminal Appeal granted an enlargement of time within which to apply for leave to appeal against conviction and sentence.

The applicant and the two co-accused were arrested by the Gardai who were lawfully searching a premises. When the Gardai entered the premises, which was a small bed-sit the three accused, the applicant, C. and O'T. were all present. A shotgun was on one of the beds and the applicant was sitting on that bed very close to the shotgun. C. was standing in the vicinity of the fireplace and there was a revolver on the heating unit which was clearly visible. There was also a hold-all with the butt of a shotgun clearly on view and various items of electronic surveillance equipment in the room.

In the Special Criminal Court, of the three accused, only C. gave evidence and in considering that evidence the court came to the conclusion that what he said regarding his innocent visit to the bed-sit could reasonably be true and therefore he was entitled to a verdict of not guilty. The court also found beyond reasonable doubt that the applicant and O'T. were in joint possession of the guns and ammunition and 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.

It was argued on behalf of the applicant inter alia that the Special Criminal Court had failed to give due recognition to the onus and required quantum of proof beyond reasonable doubt and had failed to give due weight to the accused's right to silence. It was also argued that the applicant was not in 'possession' of the firearms and ammunition and that in effect the applicant had been penalised because he had not given evidence and that if proper recognition were given to his entitlement to remain silent then his acquittal should have followed. It was further argued that since the third accused C., had been acquitted that the Special Criminal Court was not in a position to say whether one man in particular was in possession of the firearms.

Held by the Court of Criminal Appeal (O'Flaherty, Budd and Kinlen JJ.), in refusing leave to appeal against conviction, 1, that the Special Criminal Court, had correctly considered the evidence against each of the accused separately and that it had applied the appropriate measure of the required quantum of proof, in that it had been satisfied beyond reasonable doubt of the guilt of the applicant.

The People (D.P.P) v. Madden [1977] I.R. 336 considered.

2. That on the evidence adduced before the Special Criminal Court it was perfectly reasonable for that court to be satisfied beyond reasonable doubt that the applicant was aware of the existence of the guns and ammunition in the bed-sit and had them under his control.

• R. v. Whelan [1972] N.I. 153; Warner v. Metropolitan Police Commissioner[1969] 2 A.C. 256; R. v. Murphy, Lillis and Burns[1971] N.I. 193; Moors v. Burke (1919) 26 C.L.R. 265; Minister for Posts and Telegraphs v. Campbell[1966] I.R. 69;Williams v. Douglas (1949) 78 C.L.R. 521 and Sullivan v. Earl of Caithness [1976] 1 All E.R. 844 considered.

3. That an inference of knowledge and control would be drawn from the open and obvious presence of an article in circumstances where the accused's relationship to it would lead to a conclusion that he had knowledge of its presence and in the circumstances the trial court had been entitled to draw the inference that all the occupants of the bed-sit were in joint possession of the firearms and ammunition.

R. v. Whelan [1972] N.I. 153 considered.

4. That from the evidence of the circumstances adduced, the trial court had been entitled to deduce that the applicant was in possession of the firearm and ammunition and from their nature this could give rise to a reasonable inference that he had not got them in his possession for a lawful purpose.

5. That, therefore, the Special Criminal Court had been entitled to infer both possession and guilty knowledge from ample evidence of the applicant's proximity to and presence in the room with the firearms and ammunition which were openly visible.

6. That, in the circumstances, the trial court had been entitled to be satisfied on the evidence beyond reasonable doubt that the applicant had mens rea.

Sweet v. Parsley [1970] A.C. 132 and Gammon (Hong Kong) Ltd v. A.-G. of Hong Kong[1985] A.C. 1 considered.

7. That the concept of possession involves ideally that the possessor has complete physical control over the article; has knowledge of its existence, its situation and its qualities; has received it from a person who intends to confer possession of it and has himself the intention to possess it exclusively of others. That where the ideal situation does not exist it has to be decided whether the given approximation is such that possession may be held sufficiently established to satisfy the relevant rule of law. Possession is defined by modes or events in which it commences or ceases by the legal incidents attached to it.

Warner v. Metropolitan Police Commissioner [1969] 2 A.C. 256 approved.

8. That the distinguishing factors being a sawn-off shotgun, a particularly lethal form of firearm adapted for destruction, likewise a semi-automatic pistol found together with ammunition and surveillance equipment made it impossible, in the absence of any explanation, to conclude that the applicant was not in possession of these.

R. v. Whelan [1972] N.I. 153 distinguished.

9. That in the absence of any explanation the trial court's conclusion as to the applicant's guilt did not breach his so-called right to silence although if he had given an explanation the court might have concluded that it was true or that it might reasonably have been true or that, at the least, the court could not be certain that the explanation was false and that, therefore, he was entitled to be acquitted.

10. That the 'right to silence' allowed the accused in the first instance to call on the prosecution to prove its case. Prima facie he did not have to give an explanation or give evidence, but, if proof of guilt were forthcoming, if circumstances are laid before the court of trial that point to the guilt of the accused then an accused must attempt to rebut the prosecution case by evidence or else suffer the consequences.

Per curiam: On an appeal the Court of Criminal Appeal may accept a finding of fact made by the court of trial but it is free to draw its own inferences from the facts found or admitted. If there is credible evidence to support the verdict of the jury, the Court of Criminal Appeal has no power to interfere with it save only where a verdict may be identified as perverse.

The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336; and The People (Director of Public Prosecutions) v. Egan [1990] I.L.R.M. 780 considered.

Cases mentioned in this report:—

Gammon (Hong Kong) Ltd. v. A.-G. of Hong Kong [1985] A.C. 1; [1984] 3 W.L.R. 437; [1984 2 All E.R. 503.

Minister for Posts and Telegraphs v. Campbell [1966] I.R. 69.

Moors v. Burke (1919) 26 C.L.R. 265; [1919] V.L.R. 444.

The People (Director of Public Prosecutions) v. Egan [1990] I.L.R.M. 780.

The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336; (1976) 111 I.L.T.R. 117.

The People (Director of Public Prosecutions) v. O'Brien (1989) 3 Frewen 195.

The People (Director of Public Prosecutions) v. O'Shea [1982] I.R. 384; [1983] I.L.R.M. 549.

R. v. Murphy, Lillis and Burns [1971] N.I. 193.

R. v. Whelan [1972] N.I. 153.

Sullivan v. Earl of Caithness [1976] Q.B. 966; [1976] 2 W.L.R. 361; [1976] 1 All E.R. 844; 62 Cr. App. Rep. 105; 140 J.P. 277; 120 Sol. Jo. 8.

Sweet v. Parsley [1970] A.C. 132; [1969] 2 W.L.R. 470; [1969] 1 All E.R. 347; 53 Cr. App. Rep. 221; 133 J.P. 188; 113 Sol. Jo. 86.

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