DPP v Derek Cooney
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 16 April 2015 |
| Neutral Citation | [2015] IEHC 239 |
| Court | High Court |
| Date | 16 April 2015 |
BETWEEN:
AND
[2015] IEHC 239
THE HIGH COURT
Property – The Criminal Justice (Theft and Fraud Offences) Act 2001 – Unlawful possession of stolen property – Consultative case.
Facts: The defendant was accused of unlawful possession of a stolen property. The Dublin Metropolitan District Court sought advice whether the Court could convict in the absence of evidence from an injured party that the property was stolen and whether the defendant had a valid defence as to his state of mind at the time of purchasing the property, or whether the evidence relating to a defendant's conduct while answering public prosecutions questions at the time the stolen property was recovered from his possession proved the mental element of the offence.
Mr. Justice Noonan proposed that the Court could convict in the absence of evidence from an injured party that the property was stolen. However, the fact that the property in question was taken without the consent of its owner had to be proved beyond reasonable doubt. The Court further proposed that the defendant's conduct while answering questions at the time the stolen property was recovered from his possession proved the mental element of the offence. The defendant's conduct was clearly highly suspicious. Further, the obliterated identification markings on the stolen property supported the suspicion. The Court stated that there was ample evidence of a circumstantial nature before the District Court to prosecute the defendant. Borrowing words from the judgment in The People (DPP) v. O'Hanlon, the Court stated that the there was no requirement for ‘irrefutable’ evidence. The standard of proof required beyond a ‘reasonable doubt’, not beyond a ‘shadow of a doubt’.
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 from the District Court.
2. On the 20 th of May, 2014, the defendant appeared before Dublin Metropolitan District Court charged with the following offence:
"An offence contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 in that at Finglas Road, Finglas, Dublin 11 in the said District Court area of Dublin Metropolitan district, did without lawful authority or excuse possess stolen property to wit a black "carrera" gent's mountain bicycle knowing that the property was stolen or were reckless as to whether it was stolen on the 27 th of January, 2014."
3. The prosecuting Garda gave evidence that on the 27 th of January, 2014, he stopped the defendant's vehicle and noticed a gent's bicycle in the rear of the van. The defendant stated firstly that it was his friend's bicycle and subsequently that he had bought the bicycle from an unknown youth for €30. On examination of the bicycle, Garda Murray found that the chassis number had been filed away. On questioning, the defendant admitted that he had reservations as to whether or not the bicycle was stolen and signed Garda Murray's notebook to this effect. This concluded the prosecution case.
4. At the close of the prosecution case, counsel for the defendant sought a direction on the basis that there was no evidence from an injured party and therefore the prosecution had not proved that the bicycle was stolen. The matter was adjourned for further legal argument to the 3 rd of June, 2014. Following further legal submissions, the court referred the following questions to this court for determination:
(i) In the prosecution of an offence contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001, can the court convict in the absence of irrefutable evidence that the property was taken without the consent of its owner at the time of the alleged offence?
(ii) Can the court take into account the admissions of the defendant as to his state of mind at the time of purchasing the property/circumstances surrounding the purchase of the property in question in determining whether or not the property was in fact stolen or does this evidence solely go towards proving the mental element of the offence?
5. Section 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 provides as follows:
2 "18.-(1) A person who, without lawful authority or excuse, possesses stolen property (otherwise than in the course of the stealing), knowing that the property was stolen or being reckless as to whether it was stolen, is guilty of an offence.
(2) Where a person has in his or her possession stolen property in such circumstances (including purchase of the property at a price below its market value) that it is reasonable to conclude that the person either knew that the property was stolen or was reckless as to whether it was stolen, he or she shall be taken for the purposes of this section to have so known or to have been so reckless, unless the court or the jury, as the case may be, is satisfied having regard to all the evidence that there is a reasonable doubt as to whether he or she so knew or was so reckless.
(3) A person to whom this section applies may be tried and convicted whether the principal offender has or has not been previously convicted or is or is not amenable to justice.
(4) A person guilty of an offence under this section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both, but is not liable to a higher fine or longer term of imprisonment than that which applies to the principal offence."
6. The interpretation section of the Act, s. 2(1) defines "stolen property" in the following terms:
"stolen property" includes property which has been unlawfully obtained otherwise than by stealing, and cognate words shall be construed accordingly;"
7. In R. v. Sbarra (1919) 13 Cr. App. R. 118, the appellant was convicted of receiving goods knowing them to have been stolen. On appeal to the Court of Criminal Appeal, he contended that there was no evidence that the goods were in fact stolen. The judgment of the court was delivered by Darling J., who noted that there was the gravest suspicion surrounding the circumstances in which the appellant had received the goods surreptitiously in the middle of the night. On this issue, the view of the court was as follows (on page 2):
"Argument of a philosophical character has been addressed to us whether knowledge that the goods were stolen goods is enough to prove that the goods were in fact stolen, and at what point belief merges into knowledge. The court desires to express the law in the following terms. The circumstances in which a defendant receives goods may of themselves prove that the goods were stolen, and further may prove that he knew it at the time when he received them. It is not a rule of law that there must be other evidence of the theft. We have come to the conclusion that the circumstances here were enough to prove that the goods had been stolen."
8. In another judgment of the English Court of Criminal Appeal in R. v. Fuschillo [1940] 2 All E.R. 489, the appellant was convicted of receiving sugar knowing it to have been stolen. The prosecution tendered no evidence as to who owned the sugar or that it was in...
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