Loaded gun found in car stopped by Limerick gardai was cocked and ‘ready to be fired’

THE most important factor in the trial of two Limerick men accused of possessing a firearm with intent to endanger life is that the gun was cocked, loaded and ready to be fired, a prosecution barrister has told the Special Criminal Court.

The three-judge court also heard that both men were “forensically aware" from the items found in their car and had taken “serious precautions” that no traces would be left on anything. 

Evidence has previously been given that the two accused men were stopped by gardai in an Alfa Romeo car which was found to contain a loaded handgun, two petrol canisters - one of which contained petrol - a pair of latex gloves, clothing and cocaine.

John O'Donoghue, 29, with an address at Cliona Park, Moyross and Paul Whelan, 25, of Dalgaish Park, also in Moyross, have pleaded not guilty to possession of a 9mm Colt, semi-automatic pistol with intent to endanger life at Park Road, Corbally on July 30, 2018.

Closing the prosecution case this Tuesday, Dominic McGinn SC told the non-jury court that it is the State's contention that a "serious incident" was planned for the evening of July 30 and this was evident from the "serious precautions" taken by the two men and the items found in their car.  

Mr McGinn submitted that the Alfa Romeo was not a stolen car as this would have "raised alarm bells" but was purchased only two days prior to the event.

It was lawfully taxed and insured so that it would not come to adverse attention "at a random stop", he said. 

The barrister said that both men were “forensically aware” from the items found in the car which included several sets of gloves and a change of clothes. They had taken precautions that there would not be traces left on anything and no “usable fingerprints” were found on the gun, he said. 

Mr McGinn argued that an inference could be drawn that there was a plan to burn out the Alfa Romeo from the petrol canister found in the footwell of the car.

There was an anticipation that any evidence had to be destroyed. He said the court could draw its own conclusion from the cocaine found in the car. 

The most important factor in the case was the way in which the firearm was loaded, said Mr McGinn. “Not only were there eight rounds of ammunition in the magazine, the firearm was cocked and there was a round in the breach,” he emphasised, adding that it was ready to be fired. 

The lawyer said that an inference can be drawn that the firearm was going to be fired by one of the occupants in the car. The firearm was not intended to be used as a threat, it was in order to injure someone and that is the inescapable conclusion from the circumstances in the case, said Mr McGinn. 

The circumstances in which both men found themselves cried out for some explanation, he said.

However both accused men chose to exercise their right to silence, he said, adding that if there had been an innocent explanation regarding the canister of petrol and the change of clothing found in the car then this was the time to give it. 

“The only inference is that they had the firearm with intention to endanger life and that is the correct charge on which they should be convicted,” he concluded. 

Defence counsel Cody Coleman SC, defending Mr Whelan, said there were a number of other possible scenarios which pointed away from the prosecutions contention that the two men had the firearm in their possession with intent to endanger life. 

Mr Cody said it had been “very emphatically” impressed upon the court that there was ammunition in the breach of the gun but there was no evidence to support the position that the firearm was cocked.

“The fact there was ammunition in the breach as opposed to in the magazine is not determinative of the issue in question,” he outlined. 

The “highly suspicious items” could have been in the car for an “alternative or different purpose” such as to carry out a robbery that evening, said Mr Cody, adding that the items seized by gardai were “equally available” for other criminal purposes. 

There was also no phone evidence or forensic evidence to associate Mr Whelan with any of the items concerned, said the defence barrister. 

Evidence has been given in the trial that Mr Whelan told gardai at Henry Street station that he had taken cocaine, Xanax and weed about two hours prior to his arrest at the scene.

“This should go into the mix in the court's assessment as to the state of mind of Mr Whelan,” submitted Mr Cody. 

The court has heard that Mr Whelan had three latex gloves inside a pocket of his grey Adidas hoodie when he was searched at the scene on the night. Mr Cody submitted to the court that this was open to a variety of interpretations and it could point to any number of other activities that the two men might have been engaged in on the night. 

In summary, Mr Cody said the prosecution had not proved the requisite intention in the case. 

Opening the prosecution case last week, Dominic McGinn SC told the court that the issue in the case was “intention rather than possession”. 

Mark Nicholas SC, defending Mr O'Donoghue, will give his closing speech to the three-judge court tomorrow morning.