DPP v O'Sullivan

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr Justice McCarthy
• Judgment Date: 15 July 2022
• Neutral Citation: [2022] IECA 203
• Docket Number: Court of Appeal Record No. 21/2021

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

Jonathan O'Sullivan

Appellant

[2022] IECA 203

President

McCarthy J

Kennedy J

Court of Appeal Record No. 21/2021

THE COURT OF APPEAL

Conviction – Possession of a firearm – Misrepresentation – Appellant seeking to appeal against conviction – Whether the trial judge misrepresented and/or misinterpreted the defence’s case to the jury

Facts: The appellant, Mr O’Sullivan, came before Cork Circuit Criminal Court on the 9th of December 2020 on one count of possession of a firearm contrary to s. 27A(1) of the Firearms Act 1964 and on a second count of possession of ammunition (one round) contrary to the same provision. The offence occurred on the 23rd of March 2020 in Cork City and the weapon was a G9 automatic pistol. Sentence was passed on the 5th of February 2021, at which time he was sentenced to 10 years imprisonment, backdated to the 23rd of March 2020, when he went into custody. The appellant appealed to the Court of Appeal against conviction on the ground that the trial judge erred in law and in fact in so far as in the course of the trial the judge misrepresented and/or misinterpreted the defence’s case to the jury.

Held by the Court that it was obvious from the interventions of the judge during the cross-examination and his subsequent discussion with counsel in the absence of the jury that he was desirous of establishing clearly what the defence was; in a case where the inferences were so unambiguous, he was entitled if not obliged to do so. The Court held that this was not a case where the judge failed to act as a “neutral umpire” to ensure a fair trial between the prosecution and the defence. The Court held that his engagement, which was solely with counsel, could not be said to have undermined the conduct of cross-examination or prejudiced the defence. The Court held that the judge, neither by the intervention during the cross-examination of Garda Kelleher by defence counsel nor that of the cross-examination of the appellant by prosecuting counsel, did not so impinge on the opportunity for either of those persons to give their accounts fully. The Court held that interventions were minimal and the judge did not transgress the boundaries elaborated in DPP v DC [2019] IECA 367. The Court held that it is within the normal course of the ebb and flow of a trial for a judge in such an obvious case, in the context, and for legitimate reason, to engage as he did and when he did. The Court held that he could not be criticised by virtue of the fact that the interventions were in the course of the evidence of two witnesses. The Court held that a judge will from time to time be confronted with a difficulty such as this; the evidence will lead in a given direction, but the defence may wish in some sense to “stop short” of making the case implicit on it. The Court held that it was that with which the judge was confronted, and he dealt with it satisfactorily in the circumstances.

The Court dismissed the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 15th day of July 2022 by Mr Justice McCarthy

1 This is an appeal against conviction. Jonathan O'Sullivan, the appellant herein, came before Cork Circuit Criminal Court on the 9th of December 2020 on one count of possession of a firearm 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 section 38 of the Criminal Justice Act 2007 and of a second count of possession of ammunition (one round) contrary to the same provision. The offence occurred on the 23rd of March 2020 in Cork City and the weapon was a G9 automatic pistol. Sentence was passed on the 5th of February 2021, at which time he was sentenced to 10 years imprisonment, backdated to the 23rd of March 2020, when he went into custody.

2 On the day of the offence members of An Garda Síochána became aware of the fact that an Audi motor vehicle was parked in a cul-de-sac. The gardai visited the scene at or about 1.30am and on enquiry it was found that the registration number was false. The vehicle was locked. A total of five Garda witnesses gave evidence that they saw the weapon the subject of the charge (which contained, on inspection, one round) through the window: it was lying in the front footwell on the driver's side. The appellant was found in the immediate vicinity and after a search (the lawfulness of which is not in dispute) he was found to be in possession of a key to the vehicle.

3 The key was used to open it. There was a can of petrol on the passenger seat. The firearm was rendered safe by a Garda Mills who was present when the vehicle was unlocked by his colleague Garda Shire and the door opened. He replaced the weapon where he had found it.

4 The appellant was arrested and interviewed. In the course of his detention he asserted that he had agreed to drive the vehicle to the place in question for the sum of €500. He said he did not know that the firearm was in the vehicle – he had not seen the firearm and did not know that it was there. Subsequently, he gave evidence to the same effect. Ultimately it was not contested but that the firearm had been in the vehicle but, merely, that he had not seen it – that it was not in his line of vision. In cross-examination he effectively agreed with prosecuting counsel that the Gardai must have been lying as to what they saw.

5 In cross-examination, it was put to the Gardaí who had said that they had so seen the firearm from the outside before the vehicle was unlocked, namely, Gardai Shire (who searched the appellant, found the key and called for the assistance of an armed support unit of whom Garda Mills was one), Fitzgerald (who engaged with the appellant at the scene and used a torch), Mills, McCabe and Kelleher, that they had not done so. Their evidence was tested by reference to lighting conditions and fields of vision. The absence of photographic evidence and the potential which might have existed for use by Gardaí of mobile phones in that context was raised. Each was adamant as to what he or she had seen. Photographs were taken the next day and showed that the firearm was in the position stated by the Gardaí, at that time, in any event.

6 Having regard to the starkness of the contest, understandably, the judge intervened during the cross-examination of the final Garda eyewitness, Garda Kelleher, to ascertain whether or not, in substance, the defence case was that the Gardaí had “ planted” the firearm. This was an exchange with counsel only and did not involve any involvement with the witness. This in circumstances where it must have been obvious that five Gardaí in succession could not have been merely mistaken as to what they have had seen – undoubtedly it must have been that there was an insinuation that the item, though present in the car, could not have been seen by a driver but that the Gardaí were lying as to what they had seen or that it was positioned (in effect “ planted”) by some one or more of the Gardaí (after the key had been recovered from the appellant) at some time, so that it was so visible from outside. Significantly, the intervention impugned occurred after the following exchange between the witness and defence counsel:-

“ Q. I have to suggest to you, in the same manner as I suggested to the other members of An Garda Síochána, that you simply did not see this item in the footwell when looked in on the night?

A. That's incorrect, Judge. I did, in fact, see a firearm clearly on the footwell of the car, the driver's seat of the car.

Q. And I think that all of the...