DPP v Ian Ebbs,  IECCA 5 (2011)
COURT OF CRIMINAL APPEAL08/09O’Donnell J.Budd J.Herbert J.Between:The People at the Suit of theDirector of Public Prosecutions RespondentandIan EbbsAppellantJudgment of the Court delivered on the 3rd day of March 2011 by O’Donnell J.1 On the 24th 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.2 FactsOn the 22nd 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.3 AppealOn 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  I.R. 13 at p.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 possession in the terms of other criminal offences”.7 The issue arose again when the judge charged the jury in accordance with this view of the law and was requisitioned on behalf of the accused. Counsel for the accused raised the classic example of a person who had something slipped into his or her pocket or handbag and suggested that such a person would not be guilty of the offence – or perhaps more accurately, that on such facts, he or she would be entitled to a direction on the basis that the evidence would not establish an essential ingredient of the offence. The judge, however, took the view that if those facts were established they would give rise to the defences contemplated in the section in respect of lawful authority or reasonable excuse. This exchange illustrates the narrow but important distinction between the two arguments. On the defence case, knowledge of the item was an essential ingredient of the offence, which the prosecution had to prove beyond a reasonable doubt. On the view taken by the prosecution and the trial judge, the prosecution did not need to prove knowledge, but absence of knowledge might be a matter which could establish a defence on the balance of probabilities.8 LawAt the hearing of this appeal, counsel on behalf of the prosecution very properly brought to the attention of the Court the decision in Reg. v. Cugullere  1 W.L.R. 858, which had unfortunately not been referred to in the trial court. In that case, the appellant had been charged with an offence of possession of an offensive weapon in a public place contrary to s.1 of the U.K. Prevention of Crime Act 1953. The provisions of the Prevention of Crime Act 1953 are virtually identical to those of the Act of 1990. Section 1(1) of the U.K. Act reads as follows:-“Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence …”9 In that case the appellant was driving a motor van when he was stopped by the police. In the back of the van were found three pick-axe handles bound with adhesive tape...
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