DPP (at the Suit of Garda Joe Lowney) v Florin Rostas & DPP v Maughan

• Jurisdiction: Ireland
• Judge: Mr Justice Michael White
• Judgment Date: 31 January 2012
• Neutral Citation: [2012] IEHC 19
• Court: High Court
• Docket Number: [2011 Nos. 1493 and
• Date: 31 January 2012

[2012] IEHC 19

THE HIGH COURT

[No. 1493 S.S./2011]

[No. 1494 S.S./2011]

DPP (Lowney) v Rostas

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA JOE LOWNEY)

PROSECUTOR

AND

FLORIN ROSTAS

DEFENDANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA THOMAS O'MALLEY)

JOHN MAUGHAN

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 2011 S2

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 2011 S1(2)

WOOLMINGTON v DPP 1935 AC 462

SCHOOL ATTENDANCE ACT 1926 S4

SCHOOL ATTENDANCE ACT 1926 S17(2)

SCHOOL ATTENDANCE ACT 1926 S18(2)

MISUSE OF DRUGS ACT 1977 S15

R v EDWARDS 1975 1 QB 27

R v HUNT 1987 1 AC 352

ANDREW & HIRST CRIMINAL EVIDENCE 4ED PARA 3.34

ANDREW & HIRST CRIMINAL EVIDENCE 4ED PARA 3.35

ANDREW & HIRST CRIMINAL EVIDENCE 4ED PARA 3.36

ANDREW & HIRST CRIMINAL EVIDENCE 4ED PARA 3.37

ANDREW & HIRST CRIMINAL EVIDENCE 4ED PARA 3.38

ANDREW & HIRST CRIMINAL EVIDENCE 4ED PARA 3.39

MCGRATH EVIDENCE PARA 2-30

MCGRATH EVIDENCE PARA 2-31

MCGRATH EVIDENCE PARA 2-32

MCGRATH EVIDENCE PARA 2-33

MCGRATH EVIDENCE PARA 2-34

MCGRATH EVIDENCE PARA 2-35

MCGRATH EVIDENCE PARA 2-36

MCGRATH EVIDENCE PARA 2-37

MIN FOR INDUSTRY & COMMERCE v STEEL 1952 IR 304

MCGOWAN v CARVILLE 1960 IR 330

AG v SHORTEN 1961 IR 304

CRIMINAL LAW

Evidence

Burden of proof - Shifting of burden - Lawful authority - Elements of crime - Begging - Whether burden of proving accused had no licence, permit or authorisation on prosecutor - Whether burden shifts to accused to prove contrary where prima facie case established by prosecutor - Woolmington v DPP [1935] AC 462 followed; Reg v Edwards [1975] 1 QB 27 and Reg v Hunt [1987] 1 AC 352 not followed; McGowan v Carville [1960] IR 330 applied; Attorney General (Comer) v Shorten [1961] IR 304, Minister for Industry and Commerce v Steele [1952] IR 304 and Rex v Kakelo [1923] 2 KB 793 referred to - Criminal Justice (Public Order) Act 2011 (No 5), ss 1(2) and 2 - Case stated answered in affirmative (2011/1493 & 1494SS - M White J - 31/1/2012) [2012] IEHC 19

DPP( Garda Lowney) v Rostas

Facts The two defendants herein were both charged separately with the offence of begging pursuant to s. 2 of the Criminal Justice (Public Order) Act 2011. At the close of the prosecution case in respect of both accused, the defence sought a direction to acquit on the ground that the prosecution failed to prove that the accused did not have a licence permit or authorisation to beg. District Judge William Early stated a case pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961 for the determination of a question of law. The questions essentially asked 'whether in the prosecution of an offence under s. 2 of the Act of 2011 the prosecution must adduce evidence to prove that the accused person did not act pursuant to a licence, permit or authorisation granted by or under statute, or is this something that the defence bears the burden of proving?'.

Held by White J. in answering the questions posed in the affirmative: That s. 2 of the Criminal Justice (Public Order) Act 2011 could not be construed without reference to s. 1(2) and consequently the act of begging in a public place carried out in an aggressive manner, was begging other than in accordance with a licence, permit or authorisation granted by or under an enactment. This issue of a licence, permit of authorisation was not a matter of legal defence. Consequently, in a prosecution for an offence pursuant to s. 2 of the Act of 2011, the prosecution was obliged to lead some evidence to establish a prima facie case that the begging took place without legal authorisation. Once that was established, the burden of proof transferred to the accused to establish a reasonable doubt as to the legality of the begging.

Reporter: LO'S.

1 JUDGMENT of Mr Justice Michael Whitedelivered the 31st of January 2012

2 1. These are cases stated by Judge William Early pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act 1961, for the determination of a question of law.

3 2. Both Florin Rostas and John Maughan have been charged separately pursuant to the provisions of s. 2 of the Criminal Justice (Public Order) Act 2011, which states:-

"A person who, while begging in any place -"

4 (a) harasses, intimidates, assaults or threatens any other person or persons, or

5 (b) obstructs the passage of persons or vehicles,

6 is guilty of an offence."

7 Begging is defined in s. 1(2) as follows:-

"For the purposes of this Act, a person begs if-"

8 (a) other than in accordance with a licence, permit or authorization (howsoever described) granted by or under an enactment, he or she requests or solicits money or goods from another person or other persons."

9 3. In the course of the prosecution of both accused, the defence sought a direction, as the prosecution had not proved that the accused did not have a license permit or authorisation to beg.

10 4. The question posed by the learned judge in respect of Director of Public Prosecutions v. Rostas is:-

"In all of the preceding circumstances which arise in the context of a prosecution for an offence under Section 2 of the Criminal Justice (Public Order) Act 2011 must the prosecution adduce some evidence to show that the accused person did not act pursuant to license, permit or authorisation granted by or under statute, or is this evidence that the defence bears the burden of adducing?"

11 5. In Director of Public Prosecutions v. Maughan, the question posed was similar as follows:-

"In a prosecution for an offence under Section 2 of the Criminal Justice (Public Order) Act 2011 must the prosecution adduce evidence to prove that the accused person did not act pursuant to license, permit or authorisation granted by or under statute, or is this something that the defence bears the burden of proving?"

12 6. Section 2 cannot be construed without reference to Section 1(2). The act of begging in a public place carried out in an aggressive manner, is begging other than in accordance with a license, permit or authorisation granted by or under an enactment.

The Burden of Proof

13 7. The fundamental principle is set out in Woolmington v. Director of Public Prosecutions [1935] AC 462. Viscount Sankey L.C. at p.481 stated:-

"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and...