DPP v Kelly

JudgeMr Justice Fennelly
Judgment Date29 June 2012
Neutral Citation[2012] IECCA 71
CourtCourt of Criminal Appeal
Docket Number[C.C.A. No. 231 of 2009]
Date29 June 2012

[2012] IECCA 71


Fennelly J.

Moriarty J.

Hanna J.

CCA Record No: 231/09
DPP v Kelly



FIREARMS ACT 1964 S27(A)(1)




DPP v MCFADDEN 2003 2 IR 105

DPP v O'DONNELL 1995 3 IR 551



R v GALBRAITH 1981 1 WLR 1039

R v LUCAS 1981 QB 720

DPP v CRONIN 2006 4 IR 329

DPP v ROONEY 1992 2 IR 7


O'MAHONY v BALLAGH 2002 2 IR 410

LYNDON v DISTRICT JUDGE UNREP CHARLETON 22.1.2007 2009/33/8216 2007 IEHC 487

KENNY v JUDGE COUGHLAN & DPP UNREP O'NEILL 8.2.2008 2008/33/7191 2008 IEHC 28

SISK v DISTRICT JUDGE O'NEILL & DPP UNREP KEARNS 23.3.2010 2010/47/11857 2010 IEHC 96

R v LUCAS 1981 3 WLR 120

DPP v KELLY UNREP CCA 28.6.2010 2010/16/3786 2010 IECCA 75

Crime – Firearms – Possession of – Circumstances leading to inference not for lawful purpose – Appeal against conviction and sentence

Facts: The appellant had been arrested in 2008 after a surveillance operation by Gardaí. The appellant had been present in a car where a mobile phone box was handed to the front passenger. Gardaí had stopped the car and upon searching the car found that the box contained a firearm and ammunition.

The appellant was convicted by the Special Criminal Court ('the SCC') in 2009. He now sought leave to appeal against his conviction and sentence on a number of points.

Held by Fennelly J, that the appeal against conviction was based on a number of grounds. Firstly, the appellant claimed the search and use of his mobile phone records were unlawful. He did not object to handing over his phone as he believed it was merely for safe keeping. However, the Court considered that whilst the earlier case law on searches established that the Garda was to explain the nature of their search powers where a person objected, there was no duty to do so where the person did not object. DPP v McFadden [2003] 2 IR 105 considered.

The appellant next contended that the SCC erred in refusing his application for a direction that there was no case to answer, and that it also erred by refusing reasons for doing so. The Court considered there was ample evidence suggesting there was a case to answer, and the reasons for doing so were obvious to the appellant"s counsel and later explained in the full judgment.

Finally, the appellant submitted the SCC erred in the drawing of inferences from his interview with Gardaí. However, the Court found that the SCC was entitled to draw inferences from the appellant"s answers where it was satisfied beyond reasonable doubt as to the absence of any innocent explanation.

Considering the facts of the current case in respect of the appeal against sentence, the sentence could not be said to be incorrect. The appellant had a serious criminal record, including a previous conviction for murder. Comparisons to the other party in this case were not relevant because of this.

Leave to appeal was therefore dismissed.


1. This is an application for leave to appeal against conviction and sentence.


2. The Applicant was convicted on the 23 rd July, 2009 by the Special Criminal Court on two counts of unlawful possession of, respectively, a firearm and ammunition in such circumstances as to give rise to a reasonable inference that he did not have them in his possession for a lawful purpose. The charges were laid as being contrary to section 27A(1) of the Firearms Act 1964 as substituted by section 59 of the Criminal Justice Act 2006 and as amended by s. 38 of the Criminal Justice Act 2007.


3. The offences were alleged to have been committed on 19 th July 2008 in the car-park of the Claret Pub, Castletown Road, Dundalk, County Louth.


4. The firearm was an Austrian-made Glock model 26, semi-automatic pistol in very good condition. It had an overall length of 165 millimetres and a barrel length of 82 millimetres. It weighed .605 of a kilo. Its serial number had been deliberately obliterated. The ammunition was fifty rounds of 9 millimetre parabellum calibre, designed for use with firearms of the type of the Glock pistol. All were in good condition and suitable for use. It was not contested that the Applicant received the pistol and ammunition at the date and place alleged, but it was contained in a mobile phone box. The Applicant denied that there was any or any sufficient evidence that he had knowledge of the contents of the box.


5. The Applicant was tried by the Special Criminal Court over five days ending on 14 th July 2009. The Special Criminal Court delivered judgment convicting the Applicant on both counts on 23 rd July 2009.


6. On the 29 th July, 2009, the Court sentenced the Applicant to ten years imprisonment in respect of both charges to run concurrently dated from 19 th July, 2008. The Court refused leave to appeal against both conviction and sentence. This judgment will deal, in the first instance, with the appeal against conviction. Then it will deal with sentence.


7. The Applicant has put forward the following grounds for saying that the Special Criminal Court erred in deciding to convict him, namely that it erred


in admitting the Applicant's mobile telephone into evidence, because there was no lawful authority or power invoked prior to the search of the accused and the subsequent seizure of his telephone;


in refusing to accede to an application for a direction when the facts of the prosecution case failed to exclude reasonable hypotheses other than the guilt of the Applicant;


in failing to give reasons for its refusal of the application for a direction;


in drawing inferences that the accused had lied to conceal his guilt and failing, in particular properly to consider that the accused might have made false or misleading statements for a reason other than his guilt, in particular, fear for his life;


in holding that the evidence established beyond reasonable doubt the essential proof of the knowledge of the Applicant, namely that the mobile phone box contained a firearm and ammunition.

Facts surrounding the offences

8. On the 19 th July, 2008, members of An Garda Síochána, acting on confidential information, mounted a surveillance operation in order to observe the car-park of the Claret Pub, Castletown Road, Dundalk, County Louth. There were members from Dublin and from Dundalk.


9. The principal witness at the trial was Detective Sergeant Thomas Healy, from Garda Headquarters in Dublin. He was sent to Dundalk on that day. He drove into and parked in an area beside the Claret Pub car-park at 1:32 pm. He saw a navy Audi A6, driven by Thomas Kelly, which was parked in the car-park. After a minute or two he saw a black Toyota Yaris being driven into the car-park and being parked. The cars were parked back to back facing away from each other and five to ten yards apart.


10. The Yaris was being driven by Noleen O'Hanlon, the Applicant's partner. The Applicant was a front seat passenger. After a matter of seconds, at 1:34, Thomas Kelly got out of the driver's seat of the navy Audi A6, carrying a small orange and white box. It was a box for containing a mobile telephone. He walked towards the Yaris and handed the box in the window of the front passenger seat to the Applicant and walked away immediately. He did not appear to engage in any conversation whatever. It was a very swift handover.


11. Detective Sergeant Thomas Healy was in radio contact with other gardaí involved in the operation. Detective Sergeant Brona Bergin, also from Dublin, was in charge of a team of gardaí and observed the residence of the Applicant and observed the movements of the Yaris car. She saw it drive into the car-park. She was informed by Detective Sergeant Thomas Healy that a package had been handed over. She decided that the cars were not to be allowed to leave the car-park. She intercepted Thomas Kelly.


12. As the two cars were leaving the car-park, they were intercepted by members of An Garda Síochána. Detective Sergeant Vincent Byrne, who was waiting at the other side of the road, crossed with his firearm drawn and stopped the Yaris. He was shouting: "armed gardaí; stop." He told both the driver and the passenger, who was the Applicant, to step out. He was assisted by other members. He got the Applicant to lie face down on the ground. He then looked into the passenger footwell area, where he immediately saw a Meteor phone box. In this he could see an automatic pistol and ammunition. The cover was open. It was put to him in cross-examination that the box was not open when the Applicant was taken out of the car and that he had opened the box, but he denied those suggestions.


13. Detective Sergeant Daniel O'Driscoll assisted in arresting and securing the Applicant on the ground. He then went to the Yaris car and saw the box in the footwell. It had been torn open. He could clearly see that there was a pistol in it. He also denied a defence suggestion that he had opened it. Detective Sergeant Pender, who arrived on the scene after the Applicant had been placed on the ground, also gave evidence of seeing the open box and the pistol.

Evidence regarding arrest and search

14. When the Yaris was searched, members of An Garda Síochána found an orange and white box for a mobile telephone. The box was found to contain a Glock pistol and 50 rounds of ammunition. There were fingerprints from Thomas Kelly, but not of the Applicant on the mobile phone box which contained the pistol and ammunition.


15. Detective Garda Pender arrested the Applicant under section 30 of the Offences against the State Act, 1939 and brought him to...

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