R v Gallagher
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW |
| Judgment Date | 13 June 1974 |
| Judgment citation (vLex) | [1974] EWCA Crim J0613-2 |
| Docket Number | No. 1131/B/74 |
| Court | Court of Appeal (Criminal Division) |
| Date | 13 June 1974 |
[1974] EWCA Crim J0613-2
Lord Justice Megaw
Mr. Justice Browne
and
Mr. Justice Wien
No. 1131/B/74
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. RANKIN, Q.C. and MR. J. GILCHRIST appeared on behalf of the Appellant.
MR. J. MORTIMER, Q.C. and MR. P.B. DAS appeared on behalf of the Crown.
On 4th March this year in the Crown Court at Leeds, the Appellant, Robert John Gallagher, was convicted on an indictment containing a number of counts. He was convicted of possessing explosives otherwise than for a lawful object, possessing ammunition with intent to endanger life, possessing ammunition without holding a firearms certificate, and handling stolen goods by receiving a stolen theodolite. He was sentenced to six years' imprisonment.
There were charged along with him in the indictment two other persons. One was named Michael Egan, who was found guilty of the same offences as this Appellant was found guilty of, and the other was a woman named Miss Nora McCarthy, who was found guilty of one count in respect of possessing ammunition.
The Appellant appeals against conviction by leave of the single Judge.
In the month of August 1973, Miss McCarthy was the tenant of a flat in No. 230 Lumb Lane, Bradford. She had met the man Egan, who had stayed with her at the flat. At some time – the precise dates do not matter – when Egan had access to Miss McCarthy's flat, he was induced by someone to store in that flat a suitcase, a duffle bag and a cardboard box. When those containers were found and opened by the police, it was discovered that the suitcase contained, in addition to some immaterial items, a theodolite which had been stolen in June 1972, a large number of rounds of ammunition (.30 inch and 7.62 millimetre) and 43 books of counterfoils and 70 complete books of sweepstake tickets in connection with a sweepstake run by or on behalf of the I.R.A. The duffle bag contained a further large quantity of both 7.62 millimetre and .30 inch ammunition, some of it in bandoliers and some of it in plastic bags. The box contained 62 electric copper detonators with various coloured leads and numbered tags. The detonators were objects which fell within the Explosive Substances Act.
About ten days after Egan had been living at or had access to 230 Lumb Lane, Miss McCarthy went from there to live with Egan, first of all at 3, Blenheim Road, Bradford, where Egan had been previously living. However, Miss McCarthy retained her tenancy of the flat at Lumb Lane. On a Saturday early in October 1973, Egan and Miss McCarthy moved again from 3, Blenheim Road to another address in Bradford, namely 3, Edmond Street. The Appellant Gallagher helped to move their belongings from Blenheim Road to 3, Edmond Street.
On Friday 19th October, Miss McCarthy failed to pay the rent for her flat in Lumb Lane. In consequence on 21st October the landlord of that flat arranged with two other tenants in the building to clear what were believed to be Miss McCarthy's belongings, from the room in which she had been a tenant down to the landing outside another room. The landlord wished to re-let the flat. So the suitcase, the duffle bag and the cardboard box went downstairs to the landing. In addition, one of the tenants who was helping to clear the flat, found what turned out to be further bandoliers, each containing 50 rounds of ammunition, jammed under the wardrobe in the room. These bandoliers were also moved and put inside the wardrobe on the landing.
On Monday 22nd October Egan went to collect the belongings from the flat, and he found everything lying on the landing. He took the suitcase, the duffle bag and the box. He did not apparently see the two loose bandoliers of ammunition.
A little later information reached the police about the bandoliers. The police contacted Miss McCarthy at her place of work and went with her to 3, Edmond Street, where she was then living. There in a cupboard the police discovered the suitcase, the duffle bag and the box, and discovered their contents.
The Appellant Gallagher was seen by police keeping watch to come along the street. First of all he appeared to glance into the basement of No. 3, but went on his way. Then, having bought a packet of cigarettes, he returned and was stopped by the police. After some questions he was arrested. In later questioning by the police, he admitted that the suitcase was or had been his, and he also admitted that it was he who had sold one of the sweepstake tickets of which the counterfoil was found in the suitcase. He admitted that he had sold the ticket relating to that counterfoil to his sister. As to the suitcase, when he was told of its contents, he said to the police "I haven't seen it for three weeks, so sort it out from there".
At the trial Egan gave evidence. His case was that the Appellant Gallagher was an acquaintance whom he had met at a public house a year or so previously. So far as the suitcase, the duffle bag and the box were concerned, Egan said in evidence that he had met two men in a public house. He did not know either their Christian names or their surnames. Those two men said they were going away to look for work somewhere else, and would Egan look after the property, the suitcase, the duffle bag and the box, for a few days while they were away seeking work. Egan, according to his evidence, agreed so to do, and ultimately with the help of the two men he took them to Miss McCarthy's flat in Lumb Lane.
When he was seen by the police, according to the police, Egan made a written statement. In that statement he had implicated this Appellant Gallagher as being one of the two persons who had arranged the putting of the suitcase, the duffle bag and the box in the flat at Lumb Lane. But at the trial Egan denied that he had said any of the things in his statement which implicated the Appellant Gallagher to the police. Egan admitted that he had indeed made to the police other parts of the statement which did not implicate the Appellant, but so far as the parts implicating the Appellant were concerned, he said that that was a fabrication by the police officers, and that it did not represent what he had indeed said to them or anything that could properly have been written down as being a part of his statement. In his evidence at the trial, that was the evidence that he gave.
Miss McCarthy had also made certain oral and written statements to the police, which were material to the case against her, and in part also that statement implicated the Appellant. Again, in evidence Miss McCarthy denied that she had made any part of the statement which implicated the Appellant.
The defence for the Appellant at the trial was this. He explained the suitcase, which he admitted had been his property. That explanation was put forward so as to be made available to the prosecution for the first time when the Appellant gave evidence at the trial. That of course is something which the Appellant was fully entitled to do. But the fact that this was the first time that these explanations were made known to the prosecution is not without its relevance on one of the issues which has been raised in this appeal.
In his evidence with regard to the counterfoil of the sweepstake ticket, the Appellant admitted, as he had done earlier to the police, that he sold that sweepstake ticket to his sister. He said that he had the counterfoil. He said that it arose in this way. He himself was selling dance tickets on behalf of a charity in August 1973. He met a man whom he knew as Ray, his surname not being known to him. Ray was selling these I.R.A. sweepstake tickets. He made an arrangement with Ray, by which Ray would sell some of the charity tickets which he himself was seeking to sell, and he in turn would try to sell some of the tickets which Ray was seeking to sell. The Appellant's evidence was that he had sold some of those tickets, and that was how it came about that he had the ticket which he sold to his sister of which the counterfoil appeared in the suitcase. His evidence was that in due course he had handed the counterfoils to Ray. There was, he said, a dispute between him and Ray, because Ray had sold so few of the Appellant's tickets that he was deceived, and ultimately he threw the counterfoils of the tickets which he had taken from Ray at Ray and that he and Ray departed on bad terms. In cross-examination he admitted that he had made no attempt to find out Ray's identity or get in touch with him.
As to the suitcase the Appellant said that he had not put the ammunition, explosives, counterfoil or the theodolite in his suitcase. He had not seen the suitcase for three or four weeks before he was arrested. He had, some three or four weeks earlier, taken it to an address, 6, Edmond Street, which was opposite 3, Edmond Street, where Egan and Miss McCarthy were living from early October onwards. No. 6, Edmond Street was the place where an organisation had its meeting place. That organisation was concerned in arranging for the supply of secondhand clothes, which they collected for distribution as a charity in Northern Ireland. The Appellant had put some secondhand clothes in his suitcase, taken the suitcase to No. 6, Edmond Street, and left it there. When he left it there, he had not taken the clothes out of the case, and there were there, so he said in cross-examination, three ladies at the time he left it, Mrs. Doherty, Mrs. Trotter and Mrs. Green, who were helping in the collection of the secondhand clothes.
The first ground which is taken by Mr. Rankin in this Court on behalf of the Appellant in the appeal against conviction is the ground which is set out as No. 2 in the...
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