Irish Court of Criminal Appeal

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Cite as: [2008] IECCA 95

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Neutral Citation: [2008] IECCA 95

COURT OF CRIMINAL APPEAL 108/06

Finnegan J.

Budd J.

Gilligan J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.V.

CAROLINE VAN DONGEREN

APPLICANT

Judgment of the Court (ex tempore) delivered on the 23rd day of June 2008 by Finnegan J.

In this case the court had determined that it should refuse leave but in deference to Mr Finlay's argument it was felt that it deserved or required a reserved judgment and it is for that reason that it was proposed to reserve judgment. Circumstances now disclosed to us mean that it would be disadvantageous to the applicant that we should defer judgment. The court is in a position to deliver its judgment on the issues of law raised although perhaps not in the manner or in the detail that Mr Finlay's argument deserved.

The applicant for leave to appeal was convicted of an offence contrary to section 27 A subsection (1) of the Firearms Act 1964 as inserted by section 8 of the Criminal Law (Jurisdiction) Act 1976 and amended by section 14 of the Criminal Justice Act 1984 and section 15 The Offences Against the State (Amendment) Act 1998 in relation to an offence of having in her possession twenty rounds of nine millimetre cougar calibre ammunition the inference being that she had not got the

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same for a lawful purpose. Coupled with that was a charge of possession of a firearm namely a nine millimetre cougar calibre Glock automatic pistol an offence contrary to the same statutory provisions: on that charge the learned trial judge directed the jury to enter a verdict of not guilty.

The evidence overall in this case is not particularly complicated and it can be recited shortly. On the 24^th June 2006 pursuant to a search warrant Gardai searched premises 35 The Lane, Fox Lodge, Rathcoole, Co. Meath at about 10 a.m. In the house there were the applicant, Alan Coffey her partner, her sister and her two children. In the course of the search the applicant's handbag was found on the kitchen worktop. It was searched. Within it were found items which were personal and claimed by the applicant to be her property. In fact there is no dispute about that. But also in the handbag were two magazines each filled with ten rounds of the ammunition as described. The charge against her related to possession of that ammunition. The submission was made at the hearing, but not pursued here, that possession could not be proved by inferences and that clearly is not correct. An application was made to the learned trial judge for a direction on this count and was refused and the essential argument in this case is whether the law as set out in R. v Galbraith [1981] 1 W.L.R. 1039 which has been consistently applied in this jurisdiction was correctly applied in the present case. Again there is really no conflict between the parties before us that Galbraith should be applied. The relevant passage in Galbraith is as follows:-

"How then should the judge approach a submission of no case?

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(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty. The judge will, of course, stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence.

(a) Where the judge comes to the conclusion that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made to stop the case.

(b) Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of the witnesses reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence
upon which a jury could properly come to the conclusion that a defendant is guilty, then the judge should allow the matter to be tried by the jury."

That is the passage that is almost universally cited but counsel on behalf of the Director suggested that it should also be read in conjunction with the next sentence which follows on in the judgment from that passage. This reads as follows:-

"There will, of course, as always in this branch of the law be borderline cases. They can safely be left to the discretion of the judge."

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The position is that if the case is clear it goes to the jury. If it is not clear the judge has to decide whether it can safely be left to the jury and if it can he should do so. If he decides that it cannot be safely left then he should give the direction. There will always be borderline cases and in those circumstances it is not enough for the judge to say what he himself would do if he was juror. He has to ask if a jury properly directed could reasonably convict on evidence.

In this case the evidence to be relied upon depended on inferences. The evidence before the learned trial judge was that on the evening preceding that search, the 23^rd June 2006, the applicant and Frank Nolan, entered a public house in Swords at about 10 p.m. Frank Nolan was in the public house with the applicant and her sister from about 10 p.m. and they were later joined by Alan Coffey, the applicant's partner. They left and went to another public house in Swords. They left there and went to a house in Swords and they all went into that house and did not emerge until 3 a.m. At 3 a.m. Mr Coffey, not accompanied by any one else, went to the rear of the applicant's car and he had what subsequently transpired to be the pistol wrapped in a babygro. He placed it in the boot of the car in one corner and then pulled items that were already in the boot, a baby's buggy and other items, over the weapon to conceal it. The applicant, her sister and Mr Coffey then returned to the applicant's home. When the search was carried out the next morning the gun was found in the rear of the applicant's car and that led to Mr Coffey and the applicant being charged with possession of the same. The learned trial judge held that the effect of the evidence of surveillance and of Mr Coffey putting the gun in the boot and concealing it in the boot was such that applying Galbraith he could not allow that charge against the applicant safely to go to the jury. That was the correct exercise of his function and discretion and he correctly directed a verdict of not guilty on that charge against the applicant.

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In relation to the charge of possession of ammunition he refused the application for a direction. The magazines in question were found in the applicant's hand bag. The hand bag was not in her possession in the sense that she was not grasping it at the time but it was in the kitchen and she was in the house in an adjoining downstairs room. There was other evidence. The evidence was that Mr Coffey and the applicant went into the house at Swords and the jury were entitled to draw an inference that the weapon was received there would equally entitle the jury to draw an inference that the ammunition which was suitable for the weapon and in magazines appropriate to the weapon were received at the same time. The jury might take account of the fact that Mr Coffey hid the weapon in the boot and infer that it was likely if he had the ammunition in his possession that he would have done likewise with that. It seems to this court that it was open for the jury to infer that the ammunition was received by the applicant at that time. It is the case that Mr Coffey accepted that he had possession of the ammunition in the legal sense but it is the case that more than one person can have possession in a legal sense of a particular item and that it seems to this court was open to the jury on the evidence here. Possession and control, that is physical possession or the ability to obtain physical possession, are elements of possession in the legal sense. It is possible that two persons in the position of the applicant and Mr Coffey each had possession or control of the items in question. Mr Coffey accepted responsibility and the suggestion is that the items must have been placed in the handbag by someone without the knowledge, consent or approval of the applicant. That is a possibility: whether it is a reasonable explanation for the presence of the ammunition in the applicant's handbag such that the jury were obliged to accept is another matter. It is essentially a matter for a jury whether that explanation and the inferences which were drawn from the circumstances that the bag

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was not in the applicant's possession physically at the time of the search or the inferences to be drawn from the earlier events of the evening are the correct inferences to draw are matters for the jury and not for the learned trial judge.

This court is satisfied that the learned trial judge in the course of a charge, which was demonstrably fair and which has not been the subject matter of any criticism, fairly and properly put the facts and the law to the jury and the jury having been so instructed were entitled on the evidence to find the applicant guilty. This court is satisfied that the trial was conducted in accordance with law and in particular that the learned trial judge was correct and appropriate and applied the correct law, as stated in R. v Galbraith, in deciding whether the matter should be left to the jury. If the case was doubtful in the sense mentioned in Galbraith, it was nonetheless within the learned trial judge's discretion not to substitute any view of his own for that open to the jury but to allow the matter to go to the jury and that is what he did.

This court does not accept the decisions in Whelan v Foley [1972] N.I.R. 153 or Director of Public Prosecutions v Foley [1995] 1 I.R. 267 as being of any bearing in the present circumstances: as is so often the case with possession where it depends on inferences each case turns on its own peculiar circumstances. This is particularly so in the case of Minister of Posts and Telegraphs v Campbell [1966] 1 I.R. 69 relied upon by the applicant. While the dicta in that case correctly state the law, the application of the law to the particular facts of that case do not seem to this court to be of assistance in the present case.

So having decided that the correct test is that in R v Galbraith, the learned trial judge properly considered the application for a direction and properly exercised his

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discretion in leaving the matter to the jury. This court refuses the applicant leave to appeal.

DPP v Caroline Van Dongeren