DPP v O'Reilly

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken
• Judgment Date: 30 July 2004
• Neutral Citation: [2004] IECCA 27
• Court: Court of Criminal Appeal
• Date: 30 July 2004

[2004] IECCA 27

THE COURT OF CRIMINAL APPEAL

McCracken J

Lavan J

Abbot J

89/03

DPP v. O'REILLY

UNAPPROVED

Between:

The People at the Suit of the Director of Public Prosecutions

Respondent

AND

Patrick "Rubber Og" O'Reilly

Applicant

Citations:

FIREARMS ACT 1964 S27(A)

FIREARMS ACT 1925 S2

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S15

FIREARMS ACT 1964 S27

FIREARMS ACT 1925 S1(1)

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S18

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S18(1)

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S1(2)

DPP V MCGINTY UNREP CCA 3.6.2003

Abstract:

Criminal law - Appeal -Conviction - Charge to jury - Self defence - Concept of reasonable belief that use of force necessary for self defence - Whether trial judge’s charge to jury on self defence sufficient - Whether applicant precluded from objecting to charge to jury on appeal by not raising requisition in relation thereto - Whether leave to appeal should be granted.

Facts: arising out of a disturbance, the applicant had been convicted of two counts of possession of an uncertified weapon and ammunition and two further counts of possession of possession of a firearm for an unlawful purpose and violent disorder. The applicant contended that there was sufficient confusion surrounding the applicant’s possession of the firearm to preclude a conviction therefor and that as the shotgun cartridges found in his possession were spent, they could not constitute “ammunition” within the meaning of section 2 of the Firearms Act 1925 which defines ammunition as “including grenades, bombs and other similar missiles whether the same are or are not capable of being used with a firearm, and also includes any ingredient or component part of any such ammunition or missile”. The applicant contended that the trial judge had not properly directed the jury in relation to self defence in accordance with section 18 of the Non Fatal Offences Against the Person Act 1997 in respect of the remaining two counts. The respondent objected to the applicant relying on defects in the trial judge’s charge on the basis that the applicant had not raised a specific requisition in relation to self-defence during the trial.

Held by the Court of Criminal Appeal in affirming the conviction on counts two and three, granting leave to appeal against conviction on counts one and four of the indictment and ordering a retrial that the jury could not have been under any misconception in convicting the applicant in relation to the possession counts. The test to be applied as to whether force used in self defence was reasonable was a subjective one. In assessing that, the jury could have regard to whether there was a reasonable ground for that belief but that was not the deciding factor. The trial judge failed to make that clear to the jury. As the question of self defence was central to the guilt or innocence of the applicant, justice required that the absence of a requisition ought not to prejudice the applicant’s rights.

Reporter: P.C.

1 Judgment of Court delivered by Mr Justice McCracken on the 30th day of July 2004

Mr Justice McCracken

2 The Applicant was convicted at Cork Circuit Criminal Court of four counts arising out of a serious disturbance at an unofficial halting site at Mahon in Cork on the morning of 9^th September 2000. These were:-

3 1 Possession of a firearm, namely a sawn off shotgun, for an unlawful purpose contrary tos. 27(A) of the Firearms Act1964.

4 2 Possession of a firearm without a certificate contrary tos.2 of the Firearms Act1925.

5 3 Possession of ammunition without a certificate under the same Act.

6 4 Violent disorder contrary tos.15 of the Criminal Justice (Public Order) Act 1994.

7 The Applicant had been charged with four other offences arising out of the same disturbance. Two of those charges, which related to discharging a firearm, were withdrawn from the jury by the learned trial Judge and the Applicant was found not guilty by the jury of the remaining two charges which involved allegations of threats made to members of the gardaí.

8 The disturbance arose out of a long standing dispute between the Applicant's extended family and members of the McCarthy family who were living at an official halting site in Cork. It appears to have been triggered by a row at a function the previous night. The Applicant was staying with his family in a caravan on the site at Mahon, as were a number of members of his family. At about 8.30 in the morning of 9th September 2000 three or four car loads of members of the McCarthy family arrived at the site with various kinds of weapons including slash hooks and hurleys. A fracas ensued which was seen by a garda patrol car, and eventually a number of gardaí arrived and broke up the disturbance. When they arrived, they saw the Applicant with a sawn-off shotgun in his hand, and he was threatening the McCarthy's with it. He initially refused to hand over the gun to the gardaí, but subsequently did so when an armed garda arrived.

9 There was only one serious dispute as to evidence. The Applicant claimed that he had heard a disturbance outside his caravan, gone to the door and been confronted by a member of the McCarthy family with the gun, and that he had managed to snatch the gun from this person, and then used it to defend himself. On the other hand, there was some evidence, particularly from a video camera, that the Applicant had in fact got the gun from the back of a car outside his caravan at the halting site.

10 Section 2 of the Firearms Act1925provides, inter alia, that:-

"It shall not be lawful for any person....to have in his possession, use or carry any firearm or ammunition save insofar as such possession, use or carriage is authorised by a firearm certificate granted under this Act and for the time being...