The Court of Criminal Appeal has quashed Michael Breen’s conviction for possession of a firearm in circumstances giving rise to an inference of an unlawful purpose, ruling that answers attributed to him at the scene should not have been admitted in evidence. The court did not order a retrial.
Breen had been convicted by a jury in the Dublin Circuit Criminal Court on 15 October 2007 and sentenced to seven years in prison. He applied for leave to appeal, raising four grounds concerning the admissibility of statements, references to his silence during questioning, whether the air pistol met the statutory definition of a firearm, and the trial judge’s directions on corroboration.
The appeal concerned a Garda operation on 15 March 2006 at a house at 61 Knocklyon Road, Templeogue. Gardaí detained Breen and two other men at the property after an apparent attempt to break in. Breen was handcuffed and lying face down when Detective Garda John Keane searched and questioned him after caution. Keane said Breen answered questions about a firearm, clothing and a car. Breen denied giving those answers at trial and said Gardaí had planted a balaclava on him.
The firearm recovered from a holdall was identified by a Garda ballistics officer as a G10 black repeater air pistol. The officer said it could not discharge pellets or darts as designed and fell within a category described in the Firearms and Offensive Weapons Act 1990.
The appeal court said the circumstances of the questioning were “highly unusual”. Breen was under physical restraint, had not been arrested and was not free to leave. Gardaí in the immediate area were openly armed. The court also noted that Keane had searched Breen and found no weapon on him before asking whether he had one.
The court concluded that the evidence of the questioning should not have been admitted. It allowed the appeal, treating the application for leave as an appeal against conviction, and quashed the conviction. Because it found for Breen on the first ground, it said it was unnecessary to consider the other three grounds. The judgment did not rule on the lawfulness of the detention.