The High Court has dismissed Shane Donnelly’s application challenging the constitutionality of a provision in the Firearms and Offensive Weapons Act 1990 that permits a court, in specified circumstances, to treat possession of an article as evidence of an intention to cause injury, incapacitate or intimidate someone.
Mr Justice Noonan ruled that section 9(6) of the Act was not incompatible with the Constitution or the European Convention on Human Rights. He said it shifted an evidential burden, not the prosecution’s continuing obligation to prove guilt beyond reasonable doubt.
The challenge arose from a planned District Court trial over an allegation concerning a baseball bat. The judgment records that, on 8 August 2013, Garda Wayne Gilgunn saw Mr Donnelly appear to conceal an object in his sleeve before entering a restaurant on Sundrive Road, Crumlin. The Garda said he later saw him drop a long wooden object beside a tree and run away. The Garda described the object as a baseball bat. Mr Donnelly denied knowledge of it when asked about it, and was subsequently charged under section 9(5).
The District Court proceedings were adjourned and a summary trial was fixed for 22 November 2013. Mr Donnelly sought to vacate that date to bring judicial review proceedings. He argued that section 9(6) infringed the right to silence and the right to a trial in due course of law, and that “adequate explanation” was too imprecise. He also argued that an accused should be cautioned about the possible consequences of not providing an explanation.
The respondents disputed the challenge and raised preliminary objections that the judicial review was late, premature and brought without sufficient standing. They argued, among other things, that the provision concerned evidence at trial, not an obligation to account to a Garda.
The judge found that section 9(6) creates no offence and does not require a court to draw an inference or convict an accused who gives no explanation. An explanation could be offered at any time, including during trial, and could emerge through cross-examination or other means without the accused giving evidence.
Mr Justice Noonan distinguished the case from *Dokie v DPP*, where failure to provide a satisfactory explanation itself formed part of an offence. He also noted that Mr Donnelly had denied knowledge of the object when questioned, and said there was no basis to require a caution about failing to explain possession of an item he denied possessing.
Having found the provision constitutional and Convention-compatible, the judge said he did not need to decide the respondents’ objections on timing or standing. He dismissed the application; the judgment did not determine the underlying charge, which remained for the District Court proceedings.