Director of Public Prosecutions -v- Cunningham, [2014] IECCA 40 (2014)

Docket Number:Date of Delivery:
Party Name:Director of Public Prosecutions, Cunningham
Judge:Clarke J.


Clarke J.

Moriarty J.

Herbert J.


The People (at the suit of the Director of Public Prosecutions)Prosecutor/Respondentand

Francis CunninghamAccused/Appellant

Judgment of the Court delivered by Mr. Justice Clarke on the 27th November, 2014.

  1. Introduction

    1.1 This appeal centres on the ability of a jury to bring in a verdict of guilty under the alternative verdict provision contained in s. 9(4) of the Criminal Law Act, 1997. Leaving aside the legal form of any charge brought against the accused/appellant ("Mr. Cunningham"), the central substance of the allegation with which he was faced at his criminal trial was that he was involved by "common design" in the armed robbery of a consignment of cigarettes. Mr. Cunningham faced, at that trial, five counts being one of robbery, two of false imprisonment, one of possession of a firearm and one of unauthorised use of a mechanically propelled vehicle. Mr. Cunningham was found not guilty on one of the counts of false imprisonment. The jury disagreed on the second count of false imprisonment and also on the firearms offence. The jury convicted Mr. Cunningham on the road traffic offence and, as an alternative to the count of robbery with which he was charged, found him guilty of theft.

    1.2 In general terms, although it will be necessary to go into the detail of the case made on Mr. Cunningham's behalf shortly, it can be said that the principal focus of his appeal to this Court is based on a contention that the trial judge was incorrect in charging the jury that they could, in all the circumstances of the case, bring in an alternative verdict of guilty in respect of theft. In addition, it is said that, in the particular circumstances of the issues of fact which arose at his trial, the contention that it might be open to find him guilty of theft necessarily gave rise to a situation where he was in danger of being convicted of an offence which was, it is said, too imprecise to allow for a proper conviction. While the appeal brought on behalf of Mr. Cunningham was against conviction and sentence, the question of sentence was left over until the appeal against conviction was determined. This judgment, therefore, relates only to the appeal against conviction.

    1.3 In order to better understand the precise legal issues which arose on this appeal, it is necessary to set out the sequence of events which led to the charge to the jury with which Mr. Cunningham takes issue.

  2. The Sequence of Events at Trial

    2.1 During the course of his trial, it was alleged that Mr. Cunningham was part of a joint enterprise or common design in an armed robbery of a consignment of cigarettes. The robbery was alleged to have been committed against Mr. Joseph O’Toole and Mr. Edward Postol, a driver and a driver’s assistant working for Bond Delivery, a company who deliver large consignments of cigarettes to retailers. Evidence was adduced that, while those men were on their way to deliver a consignment of cigarettes, they stopped at a petrol station where they were approached by a man who had what appeared to be a firearm. That man was said to have forced himself into the delivery van containing the tobacco. Mr. O’Toole gave evidence that he was ordered to drive the van to the back of a public house. Mr. Postol was said to have been tied up with cable ties and evidence was given that Mr. O’Toole was ordered to go to the back of the van. In further evidence, Mr. O’Toole told that court that he was informed by the man with the firearm that there was another person around the side of the van. Mr. O’Toole stated in evidence that he observed that a white Transit van had reversed with its back doors facing the delivery van and that he was ordered to load the Transit van with the tobacco. Mr. O’Toole gave evidence that he was then tied up and locked, with Mr. Postol, in the back of the van that had contained the tobacco. The Court will turn to the alleged role of Mr. Cunningham shortly.

    2.2 At the trial, counsel for Mr. Cunningham put it to Mr. O’Toole that no robbery and no false imprisonment had taken place, and that Mr. O’Toole was in fact a participant in a scheme to steal the tobacco products with the individuals who were present in the vicinity of the public house. Counsel for Mr. Cunningham also put it to Mr. O’Toole that he did not pull into the petrol station at all, and alleged that this part of his evidence was “a charade”. Further, counsel alleged that Mr. O’Toole had driven straight to the public house “as part of some plan that was in being, and it was never intended to reach their ultimate destination that day, they were going to be stolen immediately”. Counsel for Mr. Cunningham continued on this trajectory during his cross examination of Mr. Postol, putting it to the prosecution witness that he was making up his account of events, and suggesting “that this is all a cover story for some prearranged plan whereby Bond Delivery were going to ….have their property stolen and this is just a cover story?”

    2.3 Hugo Gordan, Operations Manager at Bond Delivery, stated in evidence that he did not give anybody permission to interfere with or take the tobacco products. Additionally, the statement of Paul Maguire, Transport Supervisor at Bond Delivery, was, by agreement, read to the jury. He stated that the “did not give anyone permission to take cigarettes from any of the Bond delivery vans that morning other than the customers specified on the manifests given to the drivers”.

    2.4 Evidence was given that Mr. Cunningham was observed by Gardaí leaving Enfield by car on the morning of the alleged offence, and was subsequently observed at the petrol station and driving in the direction of the public house. A white Transit van was also observed in the vicinity. Following the commission of the alleged offence, evidence was given that Mr. Cunningham was observed by Gardaí driving his car in convoy with the white Transit van in a number of locations. Closed circuit television footage was said to confirm the location of the vehicles. The vehicles were stopped and searched by Gardaí and the tobacco products were found in the Transit van. Mr. Cunningham was arrested under s. 30 of the Offences Against the State Act 1939 (as amended) and was found to be in possession of €750 in cash. Phone record evidence presented during the trial suggested numerous connections were made on the morning of the alleged offences between one of the phones found in the possession of Mr. Cunningham when he was arrested and one of the three phones found in the possession of a Mr. Aaron O’Driscoll, the driver of the white Transit van.

    2.5 During the trial, Mr. Cunningham testified that he had arranged to meet a man (“Mr. Ryan”) at a lighting shop in Blanchardstown on the morning of the alleged offence in order to transmit plans for the development of land to a Mr. Jim Farrell, who was described as an auctioneer. Mr. Cunningham had denied any knowledge of Mr. O’Driscoll, the driver of the white Transit van, during his interviews with the Gardaí. However, at the trial he testified that he had spoken to a Mr. Eamon Kavanagh the evening before the alleged offence and had mentioned that he would be in Blanchardstown the following morning. He gave evidence that Mr. Kavanagh had called him the next morning to say that one of his drivers (a Mr. O’Driscoll) was lost and sought Mr. Cunningham’s help in directing the driver. Mr. Cunningham stated in evidence that Mr. Kavanagh told him he would pass his phone number on to his driver. However, as noted by the prosecution, the phone evidence indicated that Mr. O’Driscoll contacted Mr. Cunningham on a different phone, which had been first topped up with credit the day before the alleged offence.

    2.6 Mr. Cunningham was found not guilty of the false imprisonment of Mr. O’Toole (count 2). The jury disagreed on the charge of robbery (count 1), the false imprisonment of Mr. Postol (count 3) and the firearm charge (count 4). The trial judge gave a direction to the jury regarding the possibility of conviction in relation to theft pursuant to s. 4 of the Criminal Law (Theft and Fraud Offences) Act 2001 (“the 2001 Act”) as an alternative verdict to the charge of robbery. The trial judge stated, in his direction to the jury:-

    “You could find that one was involved, in which case if you do so, and the other wasn't, you could still bring in a verdict of robbery of the one who you say is not involved. If neither were involved, then robbery must fall by the way side— sorry, if neither— if both were involved, then robbery must fall by the way...

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