Court of Criminal Appeal refused certificate for Supreme Court appeal on explosives possession intent and jury trial facts.

THE COURT OF CRIMINAL APPEAL

242/04

Macken, J.

Budd, J.

White, J.

BETWEEN:

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

-AND-

JOSEPH FEE

APPLICANT

Judgment of the Court delivered on the 29th day of March 2007 by Macken, J.

1. The Applicant was tried together with another accused before the Special Criminal Court (O’Donovan, J., J. Matthews and J.

Malone), on charges arising out of events which occurred in the month of June 2003 in County Louth, one charge being possession of

explosive substances contrary to s.4 of the Explosive Substances Act 1883, the second being possession of explosives with intent to

endanger life or cause serious injury to property or to enable any other person to do so, contrary to s.3 of the same Act. Other

persons involved in the same events were tried separately.

2. Having been found guilty of both charges, the Applicant was sentenced to seven years in respect of the charge of possession, and

to ten years in respect of the charge of possession with intent, the sentences to run concurrently. His application for leave to appeal

against his conviction came on for hearing before this court which rejected the application on grounds set forth in its judgment

delivered on the 13th July 2006.

3. By notice of motion dated the 7th November 2006, the Applicant sought from this court a certificate for leave to appeal to the

Supreme Court pursuant to Section 29 of the Courts of Justice Act 1924, in respect of two questions which, it is argued, arise from

the decision of this court. The questions are the following:

a. Whether possession of an explosive substance under suspicious circumstances contrary to s.4 of the Explosive

Substances Act 1883, can of itself be sufficient to establish possession with intent for the purposes of s.3 of the said

Act;

b. In circumstances where an accused is convicted of an offence contrary to s.3 of the said Act by a Court sitting

without a jury, is it incumbent upon the Court to expressly set out the facts and any inferences therefrom upon which it

relies to ground such conviction;

4. Section 29 in the version in force at the relevant date for this application reads as follows:

“The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be

final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify

that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that

an appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the

decision of which shall be final and conclusive.”

5. This application was heard on the 15th December 2006. Mr. Burns, senior counsel on behalf of the Applicant, submitted that both

questions fall within the ambit of the above section.

6. By way of preliminary point the Court recalls that its decision of the 13th July 2006 was one refusing leave to appeal, based on the

Court’s finding that none of the grounds upon which leave to appeal was being sought had been established. On its face, the

language of s.29 of the Act of 1924 appears to provide for the possibility of a certificate for leave to appeal against such a refusal,

provided that the decision involves a point of law of exceptional public importance which the court or the Attorney General considers

should, in the public interest, be referred to the Supreme Court. While there was fairly wide ranging argument relating to the

contentions advanced on behalf of the applicant in respect of the grounds of appeal, the decision of this court remains one refusing

leave to appeal.

7. In essence the contention of the Applicant on the first question is straightforward. Mr. Burns argues on behalf of the Applicant that

since the legislature has created two independent offences, one pursuant to s.4 of the Act of 1883, and one pursuant to s.3 of the

said Act, it must be assumed that the ingredients which constitute one count do not suffice to meet the requisite ingredients of the

second count; specifically mere possession of explosives for the purposes of s.4 of the Act cannot be sufficient to constitute the

intent which is required for the purposes of the s.3 offence. The Respondent argues, as his counsel also did before this court in the

course of the application for leave to appeal, that the Applicant is incorrect when he submits that the trial court found as he

contends it did.

8. This court found, contrary to what had been and still is contended for on behalf of the Applicant, that on a correct reading of the

judgment, the trial judges did not find that mere possession of explosives was sufficient evidence of intent for the purposes of

Section 3 of the Act of 1883.

9. A review of the content of the second question suggests that this proposed question does not arise from the decision of this

court. It is well established, and repeated in the case of DPP v Eamonn Kelly, (unreported, Court of Criminal Appeal, 11th July 1996),

in the judgment delivered by Blayney, J. that it is an essential requirement that the decision of the court must involve the point of law

set out in the notice of motion. He stated:

“The first hurdle which the applicant has to cross on this application is to establish that the decision of this Court on his

application for leave to appeal involves the point of law set out in his notice of motion”. (emphasis added)

10. The Court in that judgment also referred to earlier jurisprudence on the matter, particularly the judgment in DPP v Patrick Higgins

(unreported, Supreme Court, 22 November 1985) in which Finlay, C.J. had stated:

“While, as has been held in The People v Shaw 1982 IR p. 2 this Court is not confined on the hearing of an appeal to the

point certified, it is inherent in the section that a point of law certified on these two grounds must be a point arising

before the Court of Criminal Appeal and thus involved in its decision. A point of law certified in the abstract or in terms

wider than those involved in the decision of the Court of Criminal Appeal cannot be entertained for it would be outside the

jurisdiction given to this Court by the section which is not consultative, but essentially appellate and for the purpose of

doing justice in the particular case.” (emphasis added)

11. Applying those principles to the facts in the case before it, this Court, in its judgment in DPP v Kelly supra, refused a certificate on

these grounds, counsel having made two submissions relating to fingerprint evidence, neither of which involved a decision on the point

in respect of which the certificate was sought, and stating:

“The court was not asked to make, and did not make any decision, on the question of whether any permanent record

should be made and kept of forensic tests carried out on behalf of the prosecution, and then to be disclosed for the

consideration of the Court. What the Court decided was that there was no evidence that any permanent records had

been made of the results of the fingerprint examination, and that the only evidence was that there were no such records

at the date of the trial, if they had ever existed, so there was nothing that could have been disclosed to the defence.”

12. In his grounds of appeal, so far as the second question now sought to be certified is concerned, the Applicant set out, as ground

11, the following:

“11. That the Learned Trial Court erred in law and/ or in fact in failing to identify the finding of fact relied upon by the

Court in determining intent.”

13. No factual or legal submissions were included in the written submissions of the Applicant in respect of this ground 11. In the

course of the oral hearing, counsel for the Applicant, while on the one hand arguing strongly for the contention that there was no

evidence of intent under Ground 10, on the other hand did not advance significant or relevant further argument on ground 11.

14. This court in its judgment did set out with particularity its conclusions as to the identification by the trial court of the series of

facts upon which the intent required by the Explosive Substances Act 1883 was based. For the purposes of this part of the judgment

it is not relevant that such intent could properly be inferred from those facts.

15. No issue or ground existed, or was debated, in the course of the proceedings before this Court, which involved or concerned the

wholly separate, even if related, issue found in question two, namely the role of a court sitting without a jury, or the duty in such

circumstances as to the possible obligation expressly to set out facts or inferences being drawn from them. Nor was any such issue in

any way determined by this Court in its judgment.

16. That being so, the second of the questions is not one which comes within s.29 of the Act of 1924 and is rejected as being

extraneous and not capable of being the subject matter of such a certificate, in the context of this Court’s decision and the

jurisprudence both of the Court of Criminal Appeal, and of the Supreme Court, in that regard.

17. Turning now to the first question raised, in essence the argument made on behalf of the Applicant is that no evidence was led by

the prosecution as to the likelihood of the explosive substances endangering life, and that such evidence as was led in respect of

damage to property - and found as a fact by the trial court - was in respect of glass breakage and minor property damage at a

distance of 500 metres from the explosion. Counsel for the Applicant submits that it is not clear from the trial court’s decision what

additional factors in the present case moved mere possession of explosives required to secure a conviction under s.4 of the Act of

1883, to possession with intent to endanger life or to cause serious injury to property, so as to satisfy s.3 of the Act of 1883.

18. This court, however, in its decision found that the learned trial judges had not held that mere possession of explosives was

sufficient to establish intent within the meaning of the section. The question raised in question one is a question which does arise

from the decision of this court.

19. As to the question of intent, in the course of his oral submissions counsel for the Applicant relied on the case of The People (at

the suit of the Director of Public Prosecutions) v Douglas & Hayes [1985] ILRM 25 in support of his argument that while intent may be

inferred in certain circumstances, the prosecution must establish specific intent in order for the offence to be found to be established,

and that, in the absence of such intent, the offence is not proven. Counsel for the Director does not disagree with the principles

found or applied in DPP v Douglas, supra.

Conclusions

20. This court does not agree that its decision refusing the Applicant leave to appeal to the Applicant involves a point of law of

exceptional public importance, in the terms of question 1, nor that it would be in the public interest that such a matter should be

certified for the opinion of the Supreme Court, on the grounds contended for by the Applicant. Counsel for the Applicant accepts

that, in so far as the necessary intent is concerned, the trial court was entitled to extract and to ascertain that intent indirectly,

that is to say, by inference from the Applicant’s activities, as related in the evidence, and from all appropriate surrounding

circumstances, in line with the reasoning and decision in the case of The People (DPP) v Douglas & Hayes, supra., upon which the

Applicant relies. The judgment in that case, which concerned a charge of shooting with intent to kill, confirms that such actions and

surrounding circumstances may be considered and invoked to establish the required intent, and the court in this context stated:

“Unless an accused has actually expressed an intent, his intent can only be ascertained from a consideration of his

actions and the surrounding circumstances, and a general principle with regard to establishing intention has regularly been

stated as being that every man is taken to intend the natural and probable consequences of his own acts: … although it

is noted that this form of words has been altered in the 41st ed [of Archbold], where it is stated at p.995 that in law a

man intends the consequences of his voluntary act when he foresees that it will probably happen, whether he desires it

or not.”

21. In its decision this court, with a view to ascertaining whether the learned trial judges had misdirected themselves, began its

scrutiny of the intent ground by considering the evidence in the context of the reality of the overall case. The decision then recited

the key evidence as to the Applicant’s own actions and the surrounding circumstances, which established his detailed, integral and

close involvement in the events which led to the convictions, all of which facts had been proved to the satisfaction of the trial court

beyond any reasonable doubt.

22. The list of findings which this Court set out was not an exhaustive list. It was however a very telling list from which the trial court

established - correctly, according to this court’s findings – the Applicant’s intimate involvement, with others, in the overall bomb-

making activities. Garda surveillance and actions led to the discovery of the explosive substances, both the amount found in the

Applicant’s car and the amount – being about 500 kgs – found in a premises which he had just left. It would be difficult to find

evidence which could have been any more grave and telling of his involvement in the offences with which he was charged, including

his complicity in the purchase of a necessary ingredient, namely the sugar component in the explosives, and also his role in the

provision of the essential cement mixer, which was hired by others but then left at the Applicant’s premises and later moved to the

bomb-making premises. The applicant had just come from the shed at these premises where the ingredients for the explosives were in

the course of being mixed by others, when he was apprehended.

23. In its decision, this court further found that the Applicant had not himself explicitly voiced an intent to endanger life or to cause

serious damage. Nevertheless this Court held that the trial court was fully entitled to ascertain such intent from a consideration of

the activities and actions of the Applicant in the context of all the surrounding circumstances. While counsel for the Applicant did not

rely on the judgment in The People (DPP) v Douglas & Hayes, supra., in the course of the Application for Leave, it is accepted that

this court was nevertheless entitled to have regard to those actions and circumstances.

24. This case centred on a series of findings of fact based on evidence adduced in the course of the trial by the prosecution. The

decision of this court related to very specific grounds for leave to appeal, and on such an application it was and is inappropriate for

this court to attempt to set out “omnibus general principles of law”.

25. It is wholly unreal in the circumstances of the matters referred to above, where extensive unchallenged facts, strongly indicative

of the Applicant’s nefarious role, are found to have existed, and where the amount of explosives is so large, to conclude otherwise

than as follows:

(a) that the Applicant must have intended the natural and probable consequences flowing from the making, possession

and detonation of the explosive substances in question; and

(b) that the likely consequences were as actually found by the trial court. In this regard the main argument put forward

on behalf of the Applicant was twofold: firstly that the evidence was confined to causing of minor damage rather than to

the endangerment of life; and, secondly, it was contended that there was no exploration in the judgment and no evidence

adduced, as to whether such an amount of explosives if divided into smaller amounts, would cause the necessary damage

required by Section 3 of the Act of 1883.

26 It is also unrealistic to suggest that the trial court could not reasonably and properly find, beyond reasonable doubt, the necessary

specific intention to endanger life or to cause serious injury to property, from the combination of the proven facts, several of which

were set out in this Court’s decision on the Application for Leave. The decision of this court found that on a proper reading of the

judgment of the trial court, it was not necessary for the learned trial judges to repeat all of the facts which they had set out at an

earlier point in their judgment as having been established beyond reasonable doubt. It was sufficient rather to refer to them globally.

27 The trial court found as a fact, and as satisfactorily established beyond reasonable doubt, inter alia, that the amount of explosives

involved had the capacity, if detonated, to cause damage for several hundred metres. The trial court further found, as a fact, that it

would also cause glass breakage at a distance as far away as 500 metres. It also found as a fact that the detonation of such a

quantity of explosives would cause minor property damage even at that same distance of up to 500 metres. The only reference in the

judgment to “minor” damage, upon which the Applicant now seeks to rely, is in relation to the consequences of a detonation of the

explosive substances at a distance of up to 500 metres, and then only in relation to property damage. The judgment of the learned

trial judges did not at any time qualify or describe its findings as to damage at a distance of several hundred metres as being “minor”.

Nor did the trial court qualify its findings as to damage at any lesser distances as being in any way “minor”. Nor did it at all qualify its

findings as to glass breakage even at 500 metres as being “minor”.

28 In the context of the application for leave to appeal, it was not necessary to refer to specific evidence upon which the learned

trial court had relied in that regard or as to whether it had correctly acted in placing reliance on such matters in reaching its findings

of fact. However, it is worth pointing out that the findings actually made by the learned trial judges in their judgment in relation to

the size of the bomb, described in the evidence as being a large improvised bomb, and as to its capacity for damage, were very well

and soundly based in fact. In that regard it is sufficient to mention the evidence tendered in that regard, which was unchallenged by

or on behalf of the Applicant, being the testimony of Detective Inspectors McArdle and Brooks, of the Ballistics Unit of the Garda

Siochana, as well as the evidence given in respect of the steps required to be taken for the safe disposal of the bomb by

Commandant Rooney of the Defence Forces. This court found that all the above facts were sufficient upon which the trial court was

properly entitled to come to the view which it did, namely, that the requisite statutory intent had been established. None of the

arguments put forward on behalf of the Applicant undermine those findings or raise any real issue of law in respect thereof.

29 In the above circumstances, this court concludes that the Applicant has failed to establish that there is any question of law of

exceptional public importance involved in its decision on the first question proposed, or indeed on the second question proposed, and

refuses the application for a certificate.