Connors v Faughnan

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 30 June 2017
• Neutral Citation: [2017] IECA 196
• Date: 30 June 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 196 Appeal No. 2016/124

[2017] IECA 196

THE COURT OF APPEAL

JUDICIAL REVIEW

Hedigan J.

Birmingham J.

Mahon J.

Hedigan J.

Neutral Citation Number: [2017] IECA 196

Appeal No. 2016/124

BETWEEN

CHRISTOPHER CONNORS

APPELLANT

-AND-

DISTRICT JUDGE JAMES FAUGHNAN

FIRST RESPONDENT

-AND-

THE DIRECTOR OF PUBLIC PROSECUTIONS

SECOND RESPONDENT

Administrative & constitutional law – Judicial review – Handling stolen property – Alleged failure to give reasons by trial judge

Facts: The appellant had been convicted of an offence of handling stolen goods in 2014. He contended the trial judge had breached natural justice and procedural fairness requirements by an alleged failure to give reasons for his decision. The High Court had dismissed his appeal and the matter now came before the Court of Appeal.

Held by Hedigan J, the other Justices concurring, that the appeal would be dismissed. Whilst there was a requirement to give reasons for decisions, there was not a need to do so where the submissions made were so weak or that the nature of the case was extremely straightforward. In the instant case, the submissions made were weak, and the failure to give reasons whilst dismissing them did not breach the requirements of procedural fairness. Kenny v Judge Coughlan and the DPP [2014] IESC 15 considered.

Appeal dismissed.

JUDGMENT of Mr. Justice Hedigan delivered on the 30th day of June 2017

1 This is an appeal against the judgment and order of the High Court (O'Regan J.) of 15th February, 2016, refusing an order of certiorari to quash the appellant's conviction of 23rd September, 2014, and the two month suspended sentence imposed upon him on 7th October, 2014, for ‘handling stolen property’. On 24th November, 2014, the appellant was granted leave to seek judicial review on the basis that the District Court judge had breached fair procedures and natural justice by:

(i) failing to give any or adequate reasons for refusing a direction to acquit;

(ii) acting in a manner tantamount to refusing to give reasons;

(iii) breaching fair procedures by indicating that he did not have to give reasons;

(iv) erred in law and acted in excess of jurisdiction by stating that he was not obliged to give reasons in the circumstances of the case.

Background

2 On 16th December, 2013, Gardaí entered the appellant's dwelling in Clanbrassil Street and located therein a stolen blue canvas holdall bag that had been taken in the course of a burglary in County Monaghan on 23rd November, 2013. The full and zipped up bag was located in a very small bedroom shared by the appellant with his partner, Bridget Kelly. On the 22nd of September 2014 she pleaded guilty to handling the stolen bag. On the 23rd of September 2014 the appellant pleaded not guilty to the handling charge but expressly accepted at the start of the District Court hearing that the bag had been stolen and that it had been found in his bedroom. Detective Garda Ryan testified that when he called to the appellant's apartment on 16th December, 2013, to execute the search warrant, it appeared to him that the appellant, who admitted him into the bedroom, had only very recently got out of bed. His partner was still in bed. A number of items were seized in the course of the search on the suspicion that they constituted stolen property taken in the course of various crimes. One of these items was the blue holdall bag the subject of this case. Sergeant Watters seized the bag because he suspected it had been stolen by the appellant. However, although the appellant was questioned at three subsequent Garda interviews, nothing probative arose to substantiate such a suspicion. Accordingly, after the injured party identified the bag as her property and when it was confirmed to be stolen, the appellant was charged with the offense of handling contrary to s. 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (‘the 2001 Act’). The appellant's defence as put to Detective Garda Ryan in cross examination was that it was his partner, Ms. Kelly, and not himself who had brought the bag into the room. Sergeant Watters described the dimensions of the bedroom and that the double bed occupied most of the room space. He had located the holdall bag on the floor of the bedroom between the bottom of the bed and the wall. The zipped up bag was full of China, cutlery and crystal glasses however no charges had been proffered in relation to the contents. After the two Garda witnesses had given their evidence and the prosecution had closed its case, the appellant applied for a direction on the basis of two very brief legal submissions.

3 These submissions were as follows:

‘I have two submissions to make very briefly in relation to this matter. The first is that I think it was Detective Garda Ryan indicated that he suspected that it was Mr Connors who stole these items and as the Court will be aware that section 17 of the Criminal Justice (Fraud Offences) Act indicated that handling has to occur otherwise than in the course of stealing. It's an alternative offence so that it can't be both. So, if the Garda was suspecting that this gentleman has in fact stolen the items, my submission is that he can't have been charged with the alternative charge of handling the items and on that basis I'm saying that this charge should be dismissed.’

Further and linked with this submission counsel for the appellant continued:

‘[C]onsidering that the section itself states that, ‘a person is only guilty of handling if otherwise in the course of stealing he or she knowingly or being reckless as to whether it was stolen dishonestly receives…’ et cetera et cetera So, it's I suppose part of the offence that it's otherwise than in the course of stealing and considering that the guard has given evidence that he suspected that it was Mr Connors who stole these items, it would seem to me that it would be a logical follow-on from that that he can't then be guilty of the handling of that particular offence or that particular piece of property.’

4 The second submission made by counsel for the appellant was as follows:

‘The second submission I have is in relation to Detective Garda Ryan's evidence where he indicated that Mr Connor's partner, Ms Kelly, has already entered a guilty plea to those matters. Obviously if the Court were to find both parties guilty, there would have to be some evidence of a joint enterprise or common design. The State have made – have led no evidence whatsoever in relation to that. So, on that basis if some other party has already entered a guilty plea to this matter, I would submit that outside of the State running a case on joint enterprise or common design that Mr Connors can't also be convicted of the same offence and that evidence certainly wasn't before the Court. So, on that basis I'm submitting that Mr Connors should not be also convicted of an offence that his partner has already admitted to.’

5 In relation to the first submission the judge indicated that he was not accepting the submission. He gave no reason. There followed a brief exchange in which the District Court judge suggested that counsel for the appellant should have pursued with the Garda the question of his suspicion of theft on the part of the appellant if that was the case that he wished to make. In relation to the second submission the District Court judge simply responded that he believed that the appellant had a case to answer. The District Court judge indicated to counsel for the appellant that he was not entitled to reasons for acceptance or rejection of the submissions. Following a brief exchange the District Court judge recited the last two lines of the charge:

‘… knowing that the property was stolen or were reckless as to whether it was stolen…’

He then stated that he was not accepting counsel's submission.

6 On 15th February, 2016, O'Regan J. delivered a short ex tempore judgment in the application as follows:

‘This is an application for an order quashing a decision of the District Court following a trial which occurred on 23rd of September 2014. And that in turn followed the finding of a blue holdall bag at the bedside of the accused's bedroom, which he shared with his girlfriend on 16th of December 2013. The offence the accused was charged with is under section 17 of the 2001 Act. Only one charge was preferred against the defendant and this was confirmed by Mr Clarke in the transcript at page 7, and the handling of the bag was the offence. During the course of evidence, a garda gave his view that he suspected the accused of having stolen the items. Following this, there was a submission on behalf of the accused, one, that because of the reference to the stealing he could not be charged with handling and two, because of the involvement of his girlfriend, she having pleaded guilty on the previous day to 23rd of September, 2014 a common design had to be established. The submission in relation to the charge of handling as opposed to stealing was made at page 9 of the transcript and the submission in relation to the involvement of the girlfriend and the subsequent necessity to establish a common design was made at page 11 of the transcript. After both submissions, the judge quoted from the charge and this appears at page 12 of the transcript.

The relief is sought on grounds relating to the manner in which the District Court addressed the arguments raised on behalf of the accused as opposed to any of the possible scenarios arising under section 17 of which the defendant was later convicted. There are two relevant decisions of the Supreme Court, namely Kenny of 2014 and O'Malley v. Ballagh of 2002. In the 2014 judgment of the Chief Justice, she reviewed prior cases including European Court cases. And in the course of the case of Ruiz v. Spain of 2001, it was held that: ‘reasons for a decision cannot be understood as requiring a detailed answer to...