DPP (Breen) v Valentine

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 25 June 2007
• Neutral Citation: [2007] IEHC 267
• Court: High Court
• Docket Number: [2007 No. 236 SS]
• Date: 25 June 2007

Valentine v DPP (Breen)

In the matter of Section 2 of the Summary Jurisdiction Act, 1857, as extended by Section 52(1) of

the Courts (Supplemental Provisions) Act, 1961

between

Edward Valentine

Appellant/Accused

and

The Director of Public Prosecutions (at the suit of Garda Sean Breen)

Respondents

[2007] IEHC 267

236 SS/[2007]

The High Court

CRIMINAL LAW

Theft

Ingredients of offence - No evidence of ownership - No evidence of lack of permission - Whether District Judge correct to convict - Whether sufficient evidence to support conviction question of fact or law - DPP v Nangle [1984] ILRM 171; Fitzgerald v DPP [2003] 3 IR 247 and State v Judge Ó Floinn [1968] 1 IR 245 applied; People (AG) v Harris (1957) 91 ILTR 34; People v. Cullen (1947) 81 ILTR 45; R v Langton 2 QB 296; AG v Smith [1947] IR 332 considered - Summary Jurisdiction Act 1857 (20 & 21 Vict, c 43) , ss 2 and 6 - Courts (Supplemental Provisions) Act 1961 (No 39), s 51(1) - Question answered in negative (2007/236SS - Birmingham J - 25/6/2007) [2007] IEHC 267

DPP (Breen) v Valentine

This was an appeal by way of case stated from a decision of the District Court. The appellant appeared before the District Court charged with an offence of stealing property from "Texas Homebase". A security guard at Texas Homebase gave evidence but no evidence was given of the existence of "Texas Homebase" as a legal person or that "Texas Homebase" was the owner of the articles as alleged. The opinion of the High Court was sought on the question as to whether the District Court was correct in convicting the appellant.

Held by Birmingham J. in answering the question posed in the negative that no information whatever was laid before the Court in relation to the nature of Texas Homebase or even as to its existence. Given the manner in which the charge was laid, the District Court was not correct to convict.

Reporter: R.W.

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

SUMMARY JURISDICTION ACT 1857 S2 (UK)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

DPP v NANGLE 1984 ILRM 171

FITZGERALD v DPP & AG 2003 3 IR 247

STATE (TURLEY) v O FLOINN & O'CONNOR 1968 1 IR 245

PEOPLE (AG) v HARRIS 1957 91 ILTR 34

PEOPLE v CULLEN 1947 81 ILTR & SJ 45

R v LANGTON 1876 2 QBD 296

AG v SMITH 1947 IR 332

1 judgment of Mr. Justice Birmingham delivered on the 25th day of June, 2007

2 This is an appeal by way of case stated from a decision of Judge Ann Watkin, a judge of the District Court assigned to the Dublin Metropolitan District pursuant to s. 2 of the Summary Jurisdiction Act, 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1951. The case stated is in the following terms:-

3 2 "1. At a sitting of the District Court held at Court No. 54, Richmond Hospital, North Brunswick Street, Dublin 7, on the 7th February, 2006, Edward Valentine, the Appellant herein (hereinafter referred to as the "Appellant") appeared before me to answer a charge that he committed an offence contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The particulars of the offence alleged were that the Appellant did on the 15th June, 2003 at Texas Homebase steal a rotor saw and accessories, the property of "Texas Homebase". A copy of the charge sheet which formed part of the case stated was attached at annex 1.

4 2. At the said hearing the Director of Public Prosecutions was represented by Garda Breen, the prosecuting Garda. Mr. Eoin Lawlor Barrister-at-Law represented the Appellant, instructed by Grainne M. Malone & Co., solicitors of 4 Main St., Tallaght, Dublin 24.

5 3. The prosecution case consisted of one witness, a Mr. Whelan, who gave evidence on oath that he had at the time of the incident worked as a security guard at Texas Homebase for three or four months. The witness gave evidence that on the date in question, the Appellant entered the above mentioned store, took a rotor saw and related accessories, placed them under his jacket and left the store, passing all points for payment, without paying for them. The witness also gave evidence of apprehending the Appellant, arresting him and searching him outside the store. He recovered the articles under the jacket of the Appellant. The Appellant did not go into evidence

6 4. No evidence was given of the existence of "Texas Homebase" as a legal person or that "Texas Homebase" was the owner of the articles as alleged.

7 5. At the close of the prosecution case, counsel for the Appellant sought a direction that there was no case to answer, as there had been no evidence given of the ownership of the articles alleged to have been stolen nor had there been evidence that those articles were taken without the permission of their owner. I took the view that the evidence to the effect that the witness was engaged by Texas Homebase at the Texas Homebase store, and that he was watching the Appellant walk past all points of payment and apprehended him when...