Court reserves judgment in firearms appeal case

The court heard that Kelly, of Ashling Park, Cox's Demesne, Dundalk, Co Louth, was convicted at the Central Criminal Court in April 1992 of the murder of publican Cecil Black who was tied up during a robbery and died from his injuries.

Kelly had served 15 years of the life sentence but was released on licence in March 2007.

Gardaí testified that they placed Kelly under surveillance and intercepted him as he took possession of a mobile phone box containing an automatic pistol and a box of ammunition in a pub car-park.

Counsel for the applicant, Mr Diarmaid McGuinness SC, said the trial court incorrectly ruled that evidence relating to the seizure and subsequent analysis of Kelly’s phone was admissible in circumstances where the prosecution had “signally failed” to show any lawful basis for the seizure of the phone.

He said that while being detained Kelly was not informed under what power he was being searched and understood that he was handing his phone over to the member in charge at Dundalk garda station for “safekeeping”.

Mr McGuinness said that at the close of the prosecution case the Special Criminal Court failed to give its reasons for refusing a defence application that Kelly had no case to answer.

He said the court also erred by drawing inferences that lies told by Kelly in interview with gardaí inferred guilty knowledge and by failing to attach sufficient weight to his submission that he told lies because he was in fear for his life.

Mr McGuinness said that ultimately the court could not have found beyond a reasonable doubt that Kelly knew a firearm was contained within the box handed to him.

With regard to sentence, he said that it was not permissible for the court to treat Kelly’s decision to plead not guilty as an aggravating factor.

He said that a remark by Mr Justice John Mac Menamin that the court was entitled to take in to account the fact that Kelly had fought the case "tooth and nail" amounted to a clear error in principle.

Counsel for the State, Mr Tom O’Connell SC, told the court that gardaí had powers under both statutory provisions and common law to search an individual under arrest.

He said that Kelly made no objection to a search and voluntarily handed over his phone to the member in charge of the garda station, while a search would only prove to be unlawful if gardaí failed to provide Kelly with a reason why he was being searched when asked.

Mr O’Connell said that there was no requirement for the three judge court to articulate its reasons for refusing the defence application to dismiss the case as it was obvious that Kelly had knowledge of what was in the mobile phone box handed to him.

He said that the Special Criminal Court was also perfectly entitled to come to the conclusion that lies told by Kelly in interview inferred guilty knowledge.

Presiding Judge Mr Justice Nial Fennelly, sitting with Mr Justice Michael Moriarty and Mr Justice Michael Hanna, said the court would return judgement at a later date.