A man has failed in a bid to overturn his conviction for having an automatic pistol in “sinister” circumstances after arguing that a question raised by the trial judge misrepresented his defence and prejudiced the jury.
His legal team had argued it was “highly prejudicial” for the trial judge to intervene in a line of questioning and ask if it was the defence’s case that the gardaí had “planted” the weapon in the car.
The Court of Appeal however, found that this was not a case of a judge “acting as an unfair umpire” and said that the judge’s intervention “was in the obvious interests of justice”.
Jonathan O’Sullivan (42) of Barrett Buildings, Gurranabraher, Co Cork, had denied knowledge of the weapon being in his car when arrested by police on March 23rd, 2020.
He had claimed to gardaí that he was paid €500 to move an Audi A4 to Ardcullen, Holyhill, Co Cork, where he was arrested.
At Cork Circuit Criminal Cork on February 5th, 2021, Judge Seán Ó Donnabháin sentenced O’Sullivan to 10 years’ imprisonment for possession of the .38 ACB calibre Grand Power automatic pistol, contrary to Section 27 of the Firearms Act.
In sentencing O’Sullivan, the judge said: “I regard this as extremely sinister and serious. His own defence was that it was planted there by the guards which was complete nonsense. He had the key to the car. His culpability was total.”
The judge added: “This smacks of organised criminality and he knew well what he was doing. Organised criminality cannot survive and prosper without people like Mr O’Sullivan willing to give of themselves in vital steps. He was not the originator, but he took a valuable part.”
At the trial, counsel for O’Sullivan argued that her client had no knowledge of the gun when moving the car and that it was not in his line of sight.
However, gardaí who were alerted to the suspicious presence of the car gave evidence that the gun was lying in the driver’s footwell and could clearly be seen through the window.
Gardaí then searched the area and found O’Sullivan who could not account for his presence on the estate. They arrested O’Sullivan and took his car keys from him and went to the Audi.
Armed Response Unit gardaí made safe the weapon and placed it back where they found it.
O’Sullivan had claimed that the gardaí had put the weapon back in the car in a new position, making it more visible.
During the trial, Judge Ó Donnabháin intervened to ask if counsel was accusing the gardaí of “planting evidence”.
His legal team appealed on the grounds that the use of the word “planted” either misrepresented or misinterpreted the defence’s case by saying it was the defence’s case that the gun had been “planted”.
On Friday at the Court of Appeal, Vincent Heneghan SC, for the appellant, said that the judge’s intervention was “highly prejudicial” to the accused.
In denying the appeal today, Mr Justice Patrick McCarthy said that the judge’s intervention “was in the obvious interests of justice” and that it was understandable that he had to do so in “blunt” terms.
“It’s not a case of the judge acting as an unfair umpire,” he said.
He added that when the “planted” intervention arose, the trial judge was engaging solely with counsel.
Mr Justice McCarthy said the intervention was in the “normal course” of things for a trial judge to do and he was “satisfied” in was necessary to do so in the circumstances.