The Court of Criminal Appeal refused Eugene Kelly leave to appeal his convictions and 10-year prison sentence for possessing a firearm and ammunition. In its judgment delivered on 29 June 2012, the court rejected the challenges to both conviction and sentence.
Kelly was convicted by the Special Criminal Court in July 2009 of possessing a Glock pistol and 50 rounds of ammunition in circumstances giving rise to a reasonable inference that he had no lawful purpose. The offences were alleged to have occurred in the car park of the Claret Pub on Castletown Road, Dundalk, on 19 July 2008. He received concurrent 10-year terms, backdated to the date of the offences.
At trial, Kelly accepted that he received the phone box containing the weapon but denied knowing what was inside. Garda officers said the box was open in the passenger footwell after the car was stopped. The trial court found beyond reasonable doubt that it had been opened before the stop, so Kelly could see its contents. It also relied on phone records showing calls and a text between Kelly and Thomas Kelly shortly before the handover, and found that Kelly had lied when he denied phone contact.
The appeal court rejected Kelly’s argument that evidence from his mobile phone should have been excluded because the Gardaí had not invoked a legal power before taking it. The court said it was unclear whether a physical search had occurred, but Kelly had handed over his property without objection after being told it was being taken for safekeeping. It held that the requirement to explain the legal basis for a search applied where the person objected. The court also declined to consider a separate argument about later forensic examination of the phone, because that point had not been raised at trial.
The court found there was ample evidence for the Special Criminal Court to refuse a direction of acquittal. It also rejected the complaint that reasons had not been given when the application was refused: the trial court explained its reasoning in its final judgment. The appeal court said the trial court had properly considered whether Kelly’s false answers had an innocent explanation and had been entitled to draw inferences from them.
On sentence, the appeal court said it was wrong to treat Kelly’s decision to contest the charges as an aggravating factor. An accused person is entitled to plead not guilty. However, the court found no error in the 10-year sentence, citing the seriousness of the offence and Kelly’s previous convictions, including murder and robbery. It refused leave to appeal against both conviction and sentence.