DPP v David Cooper
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 16 April 2015 |
| Neutral Citation | [2015] IEHC 240 |
| Court | High Court |
| Date | 16 April 2015 |
[2015] IEHC 240
THE HIGH COURT
BETWEEN:
AND
Property – Criminal Damage Act 1991 – Unlawful damage of property – Consultative case.
Facts: The defendant was accused of unlawful damage of a property. The District Court sought guidance regarding the necessity of filing of complaint by an injured party, evidence of ownership of the property, evidence of the costs or value of the alleged damage, and an answer to application for direction of no case to answer.
Mr. Justice Noonan proposed that it was not necessary for an injured party to file a complaint to sustain a conviction for unlawful damage to a property. The Court accepted the reliance on the judgment in Cullen v. District Judge McHugh [2013] IEHC 444 and stated that an evidence of ownership was not required in view of the mandatory presumption contained in s.7(2)(a) of the Criminal Damage Act 1991. Section 1 of the Act defines ‘property’ as a ‘thing’ capable of being damaged. The Court stated that the prosecution was not required to prove the quantum or value of the damage caused. The Court stated that an application for a direction of ‘no case to answer’ should be refused.
JUDGMENT of Mr. Justice Noonan delivered the 16th day of April, 2015
1. This matter comes before the Court by way of consultative case stated by the District Court.
2. On the 29 th of July, 2013, the defendant appeared before the District Court in Cork on foot of a charge sheet which alleged the following offence:
"On a date between the 28 th of March, 2013 and the 29 th of March, 2013 at St. Finbarr's Cemetery, Glasheen Road, Glasheen, Cork in the district court area of Cork city district number 19 did without lawful excuse damage property, to wit, deface headstones with graffiti in the cemetery belonging to another intending to damage property or being reckless as to whether such property would be damaged. Contrary to s. 2(1) of the Criminal Damage Act 1991."
3. The prosecuting Garda gave evidence before the District Court that he received a complaint that headstones in the cemetery in a place known locally as the republican plot had been defaced by graffiti. He arrested the defendant on the 4 th of April, 2013 on suspicion of causing the damage. The defendant was detained in Togher Garda Station where he was interviewed and made certain admissions in relation to the offence. The contents of the memorandum of the interview were put in evidence before the court.
4. Under cross-examination on behalf of the defendant, the prosecuting Garda agreed that there was no estimate of the value of the damage caused and when asked who the owner of the cemetery was, he said it was the people of Ireland. There was no complaint by any person purporting to be the owner of the cemetery. This concluded the prosecution evidence.
5. The defendant's solicitor therefore applied for a direction that there was no case to answer and made various legal submissions to the court. Arising out of those submissions, the District Court referred the following questions to this court for determination:
(i) In a prosecution for an offence of damaging property contrary to s. 2(1) of the Criminal Damage Act 1991, is it necessary that there be a complaint made by an injured party who owns or claims to own the property in question before a valid prosecution can be taken?
(ii) In a prosecution for an offence of damaging property contrary to s. 2(1) of the Criminal Damage Act 1991, is it necessary that the prosecution tender some evidence that the property in question was owned by another?
(iii) In a prosecution for an offence of damaging property contrary to s. 2(1) of the Criminal Damage Act 1991, is it necessary for the prosecution to tender evidence of the costs or value of the damage alleged to have been caused?
(iv) Arising from the foregoing, should I accede to the application of the defence for a direction of no case to answer?
6. Insofar as relevant to the issues that arise in this case stated, the provisions of the Act are as follows:
2 "1 - (1) In this Act-
'property' means -
(a) property of a tangible nature, whether real or personal, including money and animals that are capable of being stolen, and
(b) data.
(2) Property shall be treated for the purposes of this Act as belonging to any person-
(a) having lawful custody or control of it,
(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest), or
(c) having a charge over it.
3 2.- (1) A person who without lawful excuse damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be damaged shall be guilty of an offence…
4 7.- (2)(a) Where a person is charged with an offence under section 2, 3 or 4 in relation to property belonging to another-
(i) it shall not be necessary to name the person to whom the property belongs, and
(ii) it shall be presumed, until the contrary is shown, that the property belongs to another.
(c) Where a person is charged with an offence under section 2 in relation to such property as aforesaid, it shall also be presumed, until the contrary is shown, that the person entitled to consent to or authorise the damage concerned had not consented to or authorised it, unless the property concerned is data and the person charged is an employee or agent of the person keeping the data."
7. Counsel for the prosecutor, Mr. Dwyer BL, submitted that it was unnecessary that there be a complaint by an...
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