Attorney General v Lawless

• Jurisdiction: Ireland
• Judgment Date: 14 March 1930
• Date: 14 March 1930
• Court: Court of Criminal Appeal (Irish Free State)

Court of Crim. App.

Attorney-General v. Lawless

ATTORNEY-GENERAL

and

JAMES VINCENT LAWLESS (1)

Criminal law - Fraudulent conversion - Secretary of County Council - Moneys received, virtute officii, from other Bodies for additional statutory duties - Subsequent agreement made by Secretary with County Council - Consolidated sum accepted to cover salary and the additional payments received - Such payments to be handed over to County Council - Validity of agreement - Whether moneys received"for or on account of" County Council - Larceny Act, 1916 (6 & 7Geo. 5, c. 50), sect. 20, sub-sect. 1 (iv) (b) - No finding by jury as to whether moneys were so received - Insufficiency of Judge's charge - Right of Attorney-General to institute proceedings - No witnesses called on behalf of accused - Right of Attorney-General to reply - 61 & 62 Vict. c. 37, sect. 83 - No. 16 of 1924, sect. 6 - No. 37 of 1924,sect. 3 - No. 44 of 1924, sect. 9, First Sch., r. 4 - No. 15 of 1928,sect. 5.

Criminal Appeal.

James Vincent Lawless, who was the secretary of the Dublin County Council, was tried on the 24th and 25th July, 1929, at the Circuit Criminal Court, City of Dublin, charged with sixteen offences. These offences were set out in the manner prescribed

by Rule 4 of the First Schedule to the Criminal Justice (Administration) Act, 1924 (No. 44 of 1924), viz.:—the charge was divided into two parts, the first being "the statement of the offence;" and the second, "the particulars of the offence."Of the sixteen offences charged, the first and second were embezzlement, and fraudulent conversion, respectively, of the sum of £1,552; but in respect of these a nolle prosequi was entered. Of the remaining offences charged, 3 to 9 inclusive were embezzlement; but in respect of these, by direction of the trial Judge, the accused was found not guilty. The tenth offence charged was as follows:—

"Count No. 10.

Statement of Offence.

Fraudulent conversion of property contra sect. 20, sub-sect. 1 (iv) (b), Larceny Act, 1916.

Particulars of Offence.

James Vincent Lawless on 16th November, 1923, in the County of the City of Dublin, fraudulently converted to his own use and benefit certain property, to wit, the sum of £200 3s. 3d., received by him as secretary to the Council of the Administrative County of Dublin, for and on behalf of the said Council from the Registration Officer of the County of Dublin in respect of the preparation of the First Electoral Register for the same county."

The remaining counts, Nos. 11 to 16, were for fraudulent conversion also, and were similar in form, the only differences being in the dates, the amounts involved, and the numbers of the Electoral Registers. The accused was found guilty on these counts for fraudulent conversion, and was sentenced to eighteen months' imprisonment in the second division. The trial Judge refused a certificate that the case was a fit case for appeal.

The accused now applied to the Court of Criminal Appeal for leave to appeal under sect. 31 (ii) of the Courts of Justice Act, 1924 (No. 10 of 1924), against the conviction and sentence, the sentence having been suspended pending the determination of the application.

The following were the grounds of the application:—

1. That there was no claim by the County Council, in whom ownership of the property was laid in this indictment, that the property was fraudulontly converted; and, in fact, the evidence was to the contrary. And there was no power for the Minister for Local Government, by statute or otherwise, to institute, or instigate, a prosecution, or bring the matter before the Attorney-General for the purpose of having a prosecution brought.

2. That the sum of £1,552 was not the property of the County Council of Dublin.

3. That the sum of £1,552 was the property of the accused.

4. That there was not, and could not have been, any contract between the accused and the County Council of Dublin in reference to this money.

5. That the accused was not under any contract of service with the said County Council, but was an independent officer, appointed under the provisions of the Local Government (Ir.) Act, 1898.

6. That any conditions purporting to be attached to such appointment were ultra vires, and of no effect.

7. That any agreement, arrangement, or declaration purporting to transfer the fees payable under the registration of voters (which were the moneys set out in the indictment) was void, and of no effect, in being contrary to public policy, andultra vires.

8. That there never was any such agreement, for at no time were the parties ad idem.

9. That the learned Judge, at the close of the prosecutor's case, should have directed the jury to acquit the accused, on the grounds hereinbefore mentioned, which were put to him by counsel.

10. That, if there was even a doubt about the ownership of the property, the learned Judge ought to have so directed.

11. That the learned Judge did not explain the distinction between theft and embezzlement.

12. That he did not explain to the jury the difference between criminal liability and civil liability.

13. That he wrongfully directed the jury on the question of"claim of right."

14. That he wrongfully directed the jury in telling them that the accused held money under an implied agreement owing to the form of his appointment.

15. That the right of counsel for the accused to address the jury last was denied to the accused.

The Secretary of a County Council formerly received, in addition to the salary paid to him by the Council, certain fees for various statutory duties performed by him by virtue of his office, such fees being paid from other sources. Subsequently it was arranged that the Council should pay their Secretary a consolidated sum to cover his salary and these fees, he agreeing to hand over the fees to the Council. This arrangement had the sanction of the Local Government Board.

The appellant was appointed Secretary under these conditions. Subsequently he was charged with fraudulently converting to his own use and benefit certain sums, viz.:—portion of the said fees, received by him as Secretary of the County Council, for and on behalf of the said Council, contrary to sect. 20, sub-sect. 1 (iv) (b), of the Larceny Act, 1916. He was convicted and sentenced. He applied to the Court of Criminal Appeal for leave to appeal.

Held, that the arrangement made for the payment of the consolidated salary was not void as being contrary to public policy, nor was it ultra vires.

Held also, that the prosecution upon indictment was rightly brought by the Attorney-General, and the consent of the County Council, as owners of the property, was not required.

Held further, that the trial was not unsatisfactory by reason of the fact that the trial Judge, notwithstanding that the accused had called no witnesses permitted counsel for the Attorney-General to reply after counsel for the accused had addressed the jury.

But held that, on a charge of fraudulent conversion under sect. 20, sub-sect. 1 (iv) (b), of the Larceny Act, 1916, the question whether money has been received by the accused "for or on account of" other persons is a fact to be decided by the jury; as it is vital, they must be expressly directed to find on the point, it is not sufficient that it has not been withdrawn from them; accordingly, as no such direction had been given by the trial Judge, the trial was unsatisfactory, and the accused must be re-tried.

R. v. Messer, [1913] 2 K.B. 421; R. v. Sheaf, 19 Cr. App. R. 46; andR. v. Smith, [1924] 2 K.B. 194, applied.

Cur. adv. vult.

Kennedy C.J.—The judgment of the Court will be read by Mr. Justice Hanna.

Hanna J.:—

The accused, Lawless, was secretary of the Dublin County Council, and on the 24th and 25th July, 1929, he was tried at the Circuit Criminal Court for the City of Dublin upon an indictment containing sixteen counts. The first two of these counts were on charges of embezzling and fraudulently converting to his own use the gross sum of £1,552, received by him for or on account of the Dublin County Council. At the trial counsel for the Attorney-General entered a nolle prosequi on these two counts. The counts in the indictment, numbered 3 to 9 inclusive, were, under sect. 17, sub-sect. 1 (b), of the

Larceny Act, 1916, for the embezzlement of seven separate sums on various dates from the 16th November, 1923, until the 4th February, 1929; and counts 10 to 16 inclusive were under sect. 20, sub-sect. 1 (iv) (b), of the Larceny Act, 1916, for fraudulently converting to his own use and benefit the above-mentioned sums received by him as secretary of the County Council, for or on behalf of the County Council. The jury found a verdict of guilty on all the counts of fraudulent conversion, but not guilty of embezzlement. The accused was sentenced to 18 months in the second division, the sentence to be suspended until the termination of the appeal, if notice thereof was served before the 30th July.

The numerous grounds of appeal set out in the notice of appeal became, at the hearing, reduced to four in number.

First—that the contract of employment between the County Council and the accused was null and void on the ground of public policy, and was ultra vires.

Second—that the only party who could prosecute was the body whose money was converted, and that the Local...