DPP v Gibbons
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 27 July 2022 |
| Neutral Citation | [2022] IECA 189 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 110/2021 |
[2022] IECA 189
Edwards J.
McCarthy J.
Kennedy J.
Record Number: 110/2021
THE COURT OF APPEAL
Conviction – Possession of a firearm – Perverse verdict – Appellant seeking to appeal against conviction – Whether the verdict was perverse in the circumstances
Facts: The appellant, Mr Gibbons, on the 11th May 2021 at Meath Circuit Criminal Court, pleaded not guilty to two counts, an offence contrary to s. 27A(1) of the Firearms Act 1964, as substituted by s. 59 of the Criminal Justice Act, 2006, as amended by s. 38 of the Criminal Justice Act, 2007 being the possession of a firearm and an offence under the same section, being the possession of ammunition. On the 14th May 2021, the jury returned a unanimous guilty verdict in respect of count 1 and a not guilty verdict in respect of count 2. The appellant appealed to the Court of Appeal against conviction on the ground that the verdict was perverse in the circumstances and should be quashed.
Held by the Court that there was evidence on which a jury, properly charged could have reached their verdict. The Court noted that there was no suggestion that the jury were not properly charged. Although there was evidence which, if accepted by the jury could have led to a guilty verdict on both counts, the Court held that there was specific evidence in respect of the possession of the firearm, that being the hair adhering to the viscous substance on the weapon. The Court held that the verdicts did not amount to an unlikely view of the evidence, but one which the jury could, on the evidence properly have concluded. The Court held that the fact that the jury did not return a guilty verdict on the count of possession of the ammunition in the circumstances, but did so in respect of the other count, did not render the verdict inconsistent.
The Court dismissed the appeal against conviction.
Appeal dismissed.
JUDGMENT of the Court delivered on the 27th day of July 2022 by Ms. Justice Isobel Kennedy.
This is an appeal against conviction. On the 11th May 2021 at Meath Circuit Criminal Court, the appellant pleaded not guilty to two counts, an offence contrary to section 27A(1) of the Firearms Act 1964, as substituted by section 59 of the Criminal Justice Act, 2006, as amended by section 38 of the Criminal Justice Act, 2007 being the possession of a firearm and an offence under the same section, being the possession of ammunition. On the 14th May 2021, the jury returned a unanimous guilty verdict in respect of count 1 and a not guilty verdict in respect of count 2.
On the 15th January 2020, Gardaí were on patrol in the Gormanstown and Laytown areas of County Meath. At approximately 8:45pm, they turned into the laneway entrance to Rockleigh House where they encountered the appellant standing on the left-hand side of the laneway halfway down the length thereof.
Gardaí stopped their vehicle and asked the appellant his name and purpose for being there. The appellant provided his name, indicated that he was resident at Rockleigh House and told Gardaí that he was out for a walk as his legs were stiff. Gardaí turned the vehicle around and, at this point, could see the appellant returning towards the direction of Rockleigh House.
At approximately 9:35pm that same night, Gardaí returned to Rockleigh House where, again, they observed the appellant standing on the left-hand side of the laneway. Gardaí engaged the appellant in conversation for a second time and he told them he was out walking his dog. When questioned as to why there was no dog with him, the appellant explained that the dog had run away, and he was out looking for it.
Gardaí became suspicious of the appellant and informed him that they were going to search him. Gardaí noted that the appellant was wearing woolly hat, black jacket, green waterproof leggings and trousers. Nothing was found on the appellant's person, and they decided to further search the vicinity.
At approximately 11:25pm, 2 hours later, Gardaí located a black plastic bag within an undergrowth at the edge of a ditch. Gardaí retrieved the bag using a fresh pair of gloves and untied it. Inside the bag was a firearm and small glass jar. The magazine of the firearm contained a number of rounds of ammunition and there was also a round of ammunition in the gun breech. Inside the glass jar, there were two gloves, one placed into the other which contained twelve rounds of ammunition. These objects were found approximately 100 metres away from where the Gardaí first spoke with the appellant.
The Ballistics Section of the Garda Technical Bureau identified the firearm retrieved as a 9 millimetre Makarov calibre PM-63 RAK submachinegun and the ammunition in the jar as 9 millimetre Makarov calibre rounds of ammunition.
The black plastic bag, the firearm, the glass jar and the ammunition were provided to Forensic Science Ireland for analysis. 12 hairs or hair-like material were removed from the firearm and only one of these had follicular root material suitable for DNA profiling.
On the 28th April 2020, at approximately 7am, Gardaí arrested the appellant and conveyed him to Ashbourne Garda Station where a buccal swab was taken from him. This buccal swab was transferred to Forensic Science Ireland.
Forensic Science Ireland generated profiles from the hair with follicular root material and the buccal swab of the appellant and concluded that the DNA profiles generated matched.
The appellant appeals his conviction on the following sole ground:
“The verdict is perverse in the circumstances and should be quashed.”
The appellant acknowledges that only under rare and exceptional circumstances would this Court quash a conviction based solely on an assessment of the evidence which went before the jury. The appellant submits this case falls into this exceptional category.
It is the appellant's position that it is inherently contradictory that the appellant should receive a unanimous guilty verdict in respect of the count relating to possession of the firearm and receive a unanimous not guilty verdict in respect of the count relating to possession of ammunition where both items were found together within the same tied plastic bag.
The appellant submits that the divergent verdicts in respect of the two counts are explainable by assuming that the jury placed considerable weight on the fact that a hair with a matching DNA sample to the appellant was located on the firearm.
It is submitted that such a determination must be considered in light of the evidence provided by Dr. Breslin that:
And the evidence provided by the defence expert; Mr. Wilson that:
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a) A hair is a moveable object which was capable of being placed on the gun by secondary transfer including in circumstances where the person who shed the hair has long parted company with it.
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b) It was not possible to say anything about the age of the hair which could have been shed quite some time ago.
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c) Multiple sources of DNA were in contact with the firearm, either by direct or secondary contact, and it was entirely possible some of the people whose DNA found its way onto the firearm never actually had contact with it at all.
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d) It was not possible to exclude the possibility that the hairs weren't actually inside the bag before the firearm was placed in it.
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a) The hair is a moveable item.
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b) It was not possible to state when the hair was shed, when it was deposited onto the firearm or how it was deposited onto the firearm.
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c) As a moveable object, hair can be transferred from one surface to another and it doesn't necessarily mean there's direct contact or direct proximity.
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d) It was possible the appellant's hair could have been deposited or came to be placed on the gun entirely without his knowledge or involvement.
In this respect, the appellant submits that if the jury was influenced by the forensic evidence presented in returning a guilty verdict (which appears likely given the divergent verdicts delivered) such a verdict does not safely correspond with the forensic evidence presented especially in light of the concessions of Dr. Breslin and Mr. Wilson as to how the hair may have arrived in situ.
The appellant accepts that exceptional circumstances are required before a jury verdict may be regarded as perverse. This is set out in the case of The People (DPP) v Tomkins [2012] IECCA 82. The appellant further acknowledges the judgment of MacMenamin J. in The People (DPP) v Egan [1990] ILRM 780 wherein it was held that:
“This court will only quash a decision as being perverse where there are very serious doubts about the credibility of evidence which was central to the charge, or where a guilty verdict, even by a properly instructed jury was against the weight of the evidence.”
In this context, the appellant submits that the forensic evidence relied upon did not support the guilty verdict ultimately reached.
Reliance is placed on The People (DPP) v Alchimionek [2019] IECA 49 insofar as it highlights the requirement of the appellate courts to intervene where a jury's verdict is “not supported by any evidence in the case” or is “against all of the evidence in the case” and therefore, perverse, and also The People (DPP) v Hearns [2020] IECA 181 wherein Donnelly J. noted:
“The question that must be answered in the present case is whether a reasonable jury properly charged,...
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