Court quashes two firearm convictions for lack of jury direction on mens rea but affirms one due to strong evidence.

COURT OF CRIMINAL APPEAL

08/09

O’Donnell J.

Budd J.

Herbert J.

Between:

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

IAN EBBS

APPELLANT

Judgment 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 Facts

On 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 Appeal

On 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 [1978] 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 Law

At 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 [1961] 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. The appellant was charged with an offence contrary to s.1(1) of the Act of 1953. His

defence was that he did not know that the implements were in the back of the van. In the summing up, the jury were directed that

once the prosecution had proved possession, the onus then shifted to the appellant to prove lawful authority or reasonable excuse.

This, it will be noted, was very similar to the position taken by the trial judge in the present case. The Court of Criminal Appeal of

England and Wales quashed Cugullere’s conviction. The decision of the Court was delivered by Salmon J. who concluded (at p.860)

that “[t]his court is clearly of the opinion that the words “has with him in any public place,” must mean “knowingly has with him in

any public place””.

10 Salmon J. instanced the classic case of the person who has an item slipped into their pocket:-

“If some innocent person has a cosh slipped into his pocket by an escaping rogue, he would not be guilty of having it

with him wthin the meaning of the section because he would be quite innocent of any knowledge that it had been put

into his pocket. In the judgment of this court, the section cannot apply in circumstances such as those. It is, therefore,

extremely important in any case under this section for the judge to give a careful direction to the jury on the issue of

possession. The first thing the jury have to be satisfied about – and it is always a question for the jury – is whether the

accused person knowingly had with him the alleged offensive weapon.”

11 The Court of Criminal Appeal (at p. 861) considered that the direction to the jury was wrong because:-

“[A]s far as the question of possession was concerned the onus remained throughout on the Crown to prove that the

appellant knew that the pickaxe handles were in the van.”

12 The decision in Cugullere can be seen as a routine application of the principle applied in this jurisdiction in The People v. Murray

[1977] I.R. 360, which involved the question whether on a charge of capital murder, where the mens rea for murder had been

established, it was nevertheless necessary to prove mens rea in respect of an element of the offence, namely the fact that the

victim was a member of An Garda Síochána. Henchy J. disapproved of a line of authority which appeared to suggest that if the word

“knowingly” was not used in the statute, mens rea in respect of that element would not be required. He said (at pp. 398 to 399):-

“I do not propose to analyse the judicial reasoning of those decisions… I confine myself to saying that I find the

reasoning leading to the conclusion that the element in question does not require mens rea to be of questionable origin,

weak and unconvincing. It seems to stem from the idea that, because the section did not qualify the reference to a

peace officer acting in the execution of his duty with words indicating a requirement of knowledge on the part of the

accused of that fact, the offence should be held to be one of strict liability as to that fact. I believe that to be an

incorrect method of interpreting a statutory provision imposing criminal liability. The correct rule of interpretation in

such a case is that stated by Lord Reid at p. 148 of the report of Sweet v. Parsley [[1970] A.C. 132]:-

“Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in

one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear

indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to

make criminals of persons who were in no way blameworthy in what they did. That means that whenever a

section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we

must read in words appropriate to require mens rea.””

13 Cugullere decision is clearly persuasive authority on the interpretation of the Act of 1990. Furthermore, the fact that the decision

was extant at the time the Oireachtas adopted the selfsame language in the Act of 1990 as had been interpreted in that case, might

be thought to strengthen the conclusion that a requirement of a successful prosecution under s.9(4) would be to establish that an

accused knew he had a prohibited article. However, in this appeal it was argued strongly on behalf of the Respondent that Cugullere

was wrongly decided. It was said that, while fully respecting and applying the principles in The People v. Murray and Sweet v.

Parsley, the true interpretation of the statute here, and in particular in the light of the structure of the section and the creation of

the defence of reasonable excuse, was that all questions of knowledge were matters of defence, as being matters of either lawful

justification or more probably, reasonable excuse. It was submitted on behalf of the prosecution that it was sufficient to prove that

the accused had with him the prohibited article i.e., that it was so physically close to the accused as to be properly described as

being “with him”. Thereafter any question of the accused’s knowledge was a matter going to the defence of reasonable excuse.

14 The issue raised in this case involves a survey of a contentious area of the law relating to possession of offensive weapons.

However it is arguable that on one view it is not necessary to go to the lengths of considering whether s.9(4) of the Act of 1990

requires full mens rea (i.e., proof of knowledge on the part of the accused that he had a prohibited article and an intention to have

it) or whether it creates the type of intermediate offence described by Hardiman J. in C.C. v. Ireland [2006] 4 I.R. 1 (i.e., an offence

in which it is unnecessary for the prosecution to prove mens rea but open to the defendant to avoid liability by proving that he took

all reasonable care – or in this case had lawful authority or reasonable excuse). That is because what is involved here is the logically

anterior question whether the actus reus of “having with” encompasses a minimum mental element in the same way as it has been

established that the actus reus of possession involves proof that an accused knew he had something, even if in the particular case it

is not necessary to prove that he knew that what he possessed was a specific drug, an offensive weapon, or indeed an explosive.

15 The distinction is well explained in McAuley and McCutcheon, Criminal Liability, (Dublin, 2000) at p.215:-

“While knowledge is essential to establish possession the law draws a distinction between knowledge of the existence of

the item in question and knowledge of its characteristics and qualities. The line between the two types of knowledge is

apt to become blurred but it is clearly settled that knowledge of the former type is all that is required to establish

possession. This knowledge is an element of the actus reus of the offence, not the mens rea. The importance of this

point should not be underestimated given the tendency in some jurisdictions to impose strict liability on a wide range of

possession offences. When the offence is one of strict liability the prosecution will nevertheless bear the burden of

establishing that the accused knew of the existence of the relevant item. Failing that, the accused will be held not to

have possessed the item. But once that knowledge is established any further element of knowledge is a mens rea

requirement and does not have a bearing on the question of possession.” (Emphasis added).

16 This distinction, though troublesome, is very well established. Possession is unusual in the criminal law, in that what is criminalised

is a state, rather than an activity. It is clear that the concept of possession in criminal law necessarily involves an irreducible element

of knowledge. One fixed point in the otherwise confused law of possession is that a person does not possess something of which he

or she is unaware. This distinction was well elucidated in the old Irish case of R. v. Hehir [1895] 2 I.R. 709. Gibson J. in the Court for

Crown Cases Reserved illustrated the point vividly (at p. 724) with a biblical reference:-

“When Joseph replaced in his brethren’s sacks, without their knowledge, the price of the corn they had bought, though

they had apparent dominion and control over the sacks with their contents, they were no more, before discovering it, in

possession of the money which Joseph had put in by an act of trespass, than they would have been of dynamite secretly

placed there.”

17 The point is also well illustrated in those drugs cases where it was necessary to consider whether the modern misuse of drugs

legislation made possession of a drug a strict liability offence in the sense that it was not necessary for the prosecution to prove that

the accused knew that he or she had a specific drug, or indeed a controlled drug at all. For present purposes what is significant,

however, is that it was accepted by all sides of that debate that the actus reus of possession involves knowledge that the person

possesses something. In many cases this is illustrated by the negative proposition that a person cannot be said to possess something

which is slipped into his or her handbag, pocket, or some other place over which he or she has control. Thus in Lockyer v. Gibb [1967]

2 Q.B. 243, the Court of Criminal Appeal of England and Wales was prepared to hold that possession of a drug was a strict liability

offence in that the prosecution had merely to prove possession and it was for the accused to prove reasonable excuse. In that case

Lord Parker C.J. said (at p.248) however:-

“In my judgment, before one comes to consider the necessity for mens rea or, as it is sometimes said, whether the

regulation imposed an absolute liability, it is of course necessary to consider possession itself. In my judgment it is quite

clear that a person cannot be said to be in possession of some article which he or she does not realise is, for example,

in her handbag, in her room, or some other place over which she has control. That I should have thought is elementary;

if something was slipped into your basket and you had not the vaguest notion it was there at all, you could not possibly

be said to be in possession of it.”

18 At p. 249 of the judgment he continued:-

“This sort of point, of course, arose in a case under the Explosives Act, 1883, Reg. v. Hallam [[1957] 1 Q.B. 569]. It was

there held that for a man to be in possession of explosives he must at any rate know that he has got the article, which

later turns out to be an explosive, in his car, that it had not been slipped in without his knowledge. That much is true,

but the court held that having regard to the fact that in addition to that general consideration the word “knowingly” was

used, the prosecution must prove not only that he knew he had an article which turned out to be an explosive, but also

knew that that article was an explosive.”

19 The issue was subsequently discussed in the House of Lords in the important case of Warner v. Metropolitan Police Commissioner

[1969] 2 A.C. 256. By a slender majority, the House of Lords endorsed Lockyer v. Gibb in holding that the Drugs (Prevention of

Misuse) Act 1964 created a form of absolute liability where it was not necessary to prove mens rea. But both the majority (Lord

Morris of Borth-y-Gest, Lord Guest, and Lord Pearce) and the minority (Lord Reid and Lord Wilberforce) agreed that even if the Act

created what was described as an absolute offence, it would still be necessary to prove as part of proof of possession (and therefore

the actus reus of the offence) that a person had knowledge of having something, if not necessarily knowledge of the nature of what

it was he possessed. Thus Lord Morris of Borth-y-Gest (at p.286) adopted with approval the statement from Lord Parker C.J. in

Lockyer v. Gibb set out above and said:-

“On this basis I think that the notion of having something in one’s possession involves a mental element. It involves in

the first place that you know you have something in your possession. It does not, however, involve that you know

precisely what it is that you have got.”

20 Lord Guest (at p.298) quoted with approval a judgment of Lord Coleridge C.J. in Reg. v. Ashwell (1885) 16 Q.B.D. 190 at p.225:-

“In good sense it seems to me he did not take it till he knew what he had got; and when he knew what he had got, that

same instant he stole it.”

21 Lord Pearce at p.305 of the decision said:-

“By physical possession or control I include things in his pocket, in his car, in his room and so forth. That seems to me

to accord with the general popular wide meaning of the word “possession” and to be in accordance with the intention of

the Act.

On the other hand, I do not think Parliament intended to make a man guilty of possessing something when he did not

know that he had that thing at all. And it is there that the real difficulties begin.

Lord Parker C.J. … was right (and this is conceded by both sides) in taking the view that a person did not have

possession of something which had been “slipped into his” bag without his knowledge. One may, therefore, exclude from

the “possession” intended by the Act the physical control of articles which have been “planted” on him without his

knowledge…I think that the term “possession” is satisfied by a knowledge only of the existence of the thing itself and not

its qualities, and that ignorance or mistake as to its qualities is not an excuse. This would comply with the general

understanding of the word “possess”.

22 This distinction emerges even more clearly from the dissenting judgments. Lord Guest (at p.299) quoted with approval from the

Dictionary of English Law (Earl Jowitt) (1959), at p.1367, which defined possession as having three requisites:-

“First, there must be actual or potential physical control. Secondly, physical control is not possession, unless

accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it. Thirdly,

the possibility and intention must be visible or evidenced by external signs…”

23 At p.281 Lord Reid said:-

“As a legal term “possession” is ambiguous at least to this extent: there is no clear rule as to the nature of the mental

element required. All are agreed there must be some mental element in possession but there is no agreement as to

what precisely it must be.” (Emphasis added)

24 Lord Wilberforce accepted the position that possession did not include what he described as “ignorant control”. At p.311 he said:-

“To illustrate by some examples. There is no difficulty in the case of wholly ignorant control, put by Lord Parker C.J. in

Lockyer v. Gibb… where something is slipped into a person’s custody without his knowing it is there. This is the classic

case of the money in the sacks of Joseph’s brethren brought into the law by Gibson J. in Reg v. Hehir …”

25 In this jurisdiction, in the leading case of The People (Director of Public Prosecutions) v. Byrne [1998] 2 I.R. 417, Keane J. for the

Court of Criminal Appeal held that the prosecution had first to prove possession which involved knowledge that he had something and

that then the onus would shift to the defendant to seek to prove (on the balance of probabilities) that he did not know that what he

had in his possession was a controlled drug. He held that the prosecution had to prove that each of the defendants had “and knew

that he had, the bales in his control, that they further knew that the bales contained something …”. He adopted the statement from

Archbold on Criminal Pleading, Evidence & Practice (1997 ed.) at para. 26.59:-

“The … Act places the initial burden of proving that the defendant had, and knew that he had, a package in his control

and that the package contained something upon the prosecution. That establishes the necessary possession. The

prosecution must also prove that the package contained the drug alleged. If any of these matters are unproved there is

no case to go to the jury.”

26 Similarly, in Minister for Posts and Telegraphs v. Campbell [1966] I.R. 69, it was said by Davitt P. (at p. 73) that someone “cannot

properly be said to be in control or possession of something of whose existence and presence he has no knowledge”.

27 There seems no doubt therefore that the concept of possession in law includes an element of knowledge. It was argued on this

appeal however that the term “having with” used in the Act of 1990 is not only narrower than possession in physical terms, but also

does not require any element of knowledge. All issues of the knowledge of the accused were, it was said, issues for the defence of

reasonable excuse.

28 While there is a certain conceptual neatness to this interpretation, the Court is unable to accept it. This is so for a number of

reasons. First, it seems clear that the purpose of introducing the concept of “having with” is to narrow the physical element of

possession and it would be surprising if it were also intended by the same language to make a very dramatic alteration to the

historical understanding of the nature of the possession, especially when to do so would at least potentially simultaneously expand

the potential range of the offence. It would also be surprising that such an important and significant change would have gone

unnoticed until now. Second, both the side notes to s.9 and the long title to the Act of 1990 refer to “possession” of offensive

weapons. It seems clear therefore that the Act itself does not conceive of some dramatic distinction between the concept of

possession and the formulation used in section 9(4). Perhaps more important, it was noteworthy, that s.9(5) of the 1990 Act also

makes it an offence for a person to have with them in a public place an article, in this case described as “intended by him unlawfully

to cause injury”. Section 9(6) addresses the question of proof of intent to unlawfully cause injury and states that the court or jury

“may regard possession of the article as sufficient evidence of intent in the absence of any adequate explanation by the

accused”(emphasis added). In criminal law “possession” may have a number of features, but its unvarying characteristic is knowledge

of the existence of the article in question. It seems to the Court that the legislature could not be considered to have intended such

an extraordinary result as to create an offence in s.9(5) which does not require proof of knowledge of the article and at the same

time permit proof of an essential ingredient of the same offence by reference to “possession” which implies knowledge of the article.

There is clearly nothing to indicate that the words “has with him in any public place” are to have a fundamentally different meaning in

s.9(4) from that in s.9(5). Third, the Act itself was introduced subsequent to a Law Reform Commission report on vagrancy and

related offences (LRC 11-1985). The portion of that report dealing with this change in the law refers explicitly to s.1(1) of the U.K.

Prevention of Crime Act 1953, and states (at para. 13.3) that “a new offence of possession of offensive weapons would… need to be

created”. Furthermore, the discussion in that report points out that offences involving possession of firearms were, at that time,

provided for in the Firearms Acts 1926 and 1971, as amended by the Criminal Law (Jurisdiction) Act 1976. Section 8 of the Act of

1976 inserted a new s.27(A) in the Firearms Act 1964. That section also speaks of “possession”. It would be peculiar indeed if the

criminal law were to require the prosecution to prove knowledge to establish possession of a firearm, but not in the case where an

accused was charged with having with him an article prohibited by s.9(4) of the 1990 Act. There is in truth nothing in the report that

suggests an intention to remove the requirement of knowledge.

29 Finally, the virtually identical words of the U.K. Prevention of Crime Act 1953 have never been understood to have effected an

alteration in the requirement of knowledge. In McCalla [1988] Cr App Rep 372 it was observed (at p.378) that every case of “having

with” is a case of “possessing” but not every case of “possessing” is a case of “having with”. In other words “having with” is a subset

of possession, it is not something different in its nature. In Smith and Hogan, Criminal Law 11th Edition (Oxford University Press, 2005)

p.588 it is observed that in order to prove that the accused has with him an offensive weapon it is necessary to prove “that

minimum mental element which is necessary to constitute possession as well as that ‘closer contact’ than mere possession which

the phrase implies”. (Emphasis added).

30 To this extent therefore, the trial judge’s ruling was clearly incorrect and it is not strictly necessary to go further and consider

whether Cugullere also represents the law in this jurisdiction so that the onus is on the prosecution to prove full mens rea i.e., that

the accused knew that he had and intended to have an offensive weapon. However, it is undesirable that there should be uncertainty

about the law in this regard, both from the point of view of future trials and should the Oireachtas wish to make any alteration in the

law. It is accordingly necessary to consider the issue.

31 Although Cugullere was brought to our attention by counsel on behalf of the DPP, he argued that it did not represent the law in

Ireland. He pointed out that the judgment in that case did not consider the issue in any depth, and in particular did not address the

significance of the fact that the offence is stated in terms which creates a defence of reasonable excuse, the onus of proof of which

lies on the defendant, albeit on the balance of probabilities. It was argued that the effect of creating this defence was to capture

cases where it was said the accused did not know that what he had was an offensive weapon. He also pointed out that the Act of

1990, in s.9(5), created an offence of having an article with intent to injure and then made specific provision for the proof of the

requisite intent. Accordingly, he submitted the silence of s.9(4) was deliberate and the word “knowingly” or some other word to

indicate intent should not be read into section 9(4). It was argued that s.9(4) on its true construction, creates the type of

intermediate offence discussed in the landmark case of C.C. v. Ireland [2006] 4 I.R. 1 at p.70 (Hardiman J.), where the Court adopted

the taxonomy set out by Dixon J. in the Canadian case of R. v. City of Sault Sainte Marie [1978] 2 S.C.R. 1299. Such intermediate

offences arise where it is unnecessary for the prosecution to prove mens rea but it was open to the defendant to avoid liability by

proving he took all reasonable care. As Dixon J. described it:-

“The defence would be available if the accused reasonably believed in a mistaken set of facts which if true would render

the act or omission innocent or if he took all reasonable steps to avoid the particular event.”

32 Again, there is some merit to this argument but it ultimately fails to persuade. Had the legislation here been passed after C.C.,

then this might be a more plausible argument. However in 1990 the tripartite division discussed in City of Sault Sainte Marie had not

yet been discussed in this country (which was to occur in the dissenting judgment of Keane J. in Shannon Regional Fisheries Board

v.Cavan County Council [1996] 3 I.R. 267) and the constitutional implications of the division were not really focussed upon until the

publication of Charleton McDermott & Bolger, Criminal Law in 1999 and the subsequent decision in C.C. In any event, the fact that it

is now established that there may be offences which impose upon a defendant the obligation of proof of taking all reasonable

precautions, does not mean that the courts should be too ready to find that such offences were created. The norm for criminal

offences remains the establishment of full mens rea. It would be inherently unlikely if the Oireachtas had intended to make this

distinction as of 1990 and, if it had, it could hardly have thought it wise to adopt for that purpose the identical language to that

found in the U.K. Act of 1953, particularly when such language had been interpreted in that jurisdiction to mean that mens rea was

required. Furthermore, a key feature of this argument is the existence of the defence of reasonable excuse which it is said negates

the requirements of mens rea. However, the defence of reasonable excuse deals more clearly and obviously with the type of situation

envisaged in the text books where a butcher has possession of a sharp knife on the way to his shop or perhaps where a person finds

a weapon and is bringing it to the gardaí. Fundamentally the requirement of mens rea is an important feature of the criminal law and

very clear language should be required to establish an intention on the part of the Oireachtas to remove it. In the circumstances

therefore, it appears that proof of the offence under s.9(4) of the Act of 1990 requires proof of mens rea.

33 It is clear therefore that the absence of any reference by the judge in his charge to the jury to a requirement of knowledge on the

part of the accused was incorrect and that the contrary position taken by counsel for the accused was essentially correct. Indeed,

the jury ought to have been directed that mens rea, an intent to have the prohibited article, was necessary. However, the whole

legal argument has a somewhat artificial quality in this case. In the context of the stun gun, the only evidence before the Court was

that the Appellant had reached for and activated the stun gun, and that when asked about the weapons in the car, he had said that

“Bray was a dangerous place”. Here the evidence before the Court was all one way. It is noteworthy for example that although the

minority in Warner considered that the judge’s charge was incorrect in failing to identify a requirement of mens rea, they nevertheless

would have applied the proviso on the basis that no jury properly directed could have done anything other than convict the accused,

even though the accused had given evidence that he was unaware of the presence of the drugs. Here the case was much stronger.

If the jury accepted the evidence that the accused reached into the glove compartment and took out and activated the stun gun,

(and they plainly did since that was the evidence linking him to the stun gun) then a direction on the need to establish mens rea

could not have altered the verdict since that evidence, whether on its own or together with the statement, demonstrated the

necessary knowledge and intent. It does however appear that the jury distinguished somewhat between that offence and the counts

involving the baton and the samurai sword and it is perhaps just about possible that the jury may have entertained some concern

about the extent to which it could be said that the accused was responsible for those items. On that basis, and not without some

hesitation, the Court will quash the convictions on counts 2 and 3. In respect of count 1, the Court will apply the provisions of the

proviso contained in s.3 of the Criminal Procedure Act 1993. Notwithstanding the fact therefore that the Court is of the opinion that

the legal point might be decided in favour of the appellant on count 1, it considers that no miscarriage of justice has actually

occurred and accordingly the Court will affirm the conviction of the appellant on count 1.