DPP v Fowler

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 24 February 1995
• Neutral Citation: 1995 WJSC-CCA 2144
• Docket Number: [C.C.A. No. 57 of 1992],57/92
• Court: Court of Criminal Appeal
• Date: 24 February 1995

1995 WJSC-CCA 2144

THE COURT OF CRIMINAL APPEAL

O'Flaherty J.

O'Hanlon J.

Barr J.

57/92

DPP v. FOWLER

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

.V.

NOEL FOWLER

Applicant

Citations:

LARCENY ACT 1916 S33

LARCENY ACT 1990 S3

STAPYLTON V O'CALLAGHAN 1973 2 AER 782

THEFT ACT 1968 S1 UK

THEFT ACT 1968 S22 UK

LARCENY ACT 1916 S2

R V BELLMAN 1989 AC 839

R V HARRIS 1822 BARN & ALD 926

R V CHRIST 35 CAR 76

R V SHELTON 83 CAR 379

LARCENY ACT 1916 S40(5)

LARCENY ACT 1990 S4(b)

LARCENY ACT 1990 S8

LARCENY ACT 1916 S33(2)(a)

THEFT ACT 1968 S3(1) UK

Synopsis:

Larceny

Handling - Indictment - Counts - Alternatives - Trial judge - Jury - Charge - Omission - Failure to inform jury that handling must be otherwise than in course of stealing - Larceny Act, 1916, ss. 1, 2, 33, 40 - Larceny Act, 1990, ss. 3, 4, 8, 9 - (57/92 - Court of Criminal Appeal - 24/2/95) 1995 1 I.R. 294 1995 1 ILRM 546

|The People v. Fowler|

1 Judgment of the Court delivered on the 24th day of February, 1995 by O'Flaherty J.

2 On the 5th May, 1992 Noel Fowler stood trial on an indictment that contained two counts. Count no. 1 charged that he did on the 26th August, 1991 steal a Black and Decker saw valued £43 the property of Patrick Devitt and count no. 2 charged that on the 27th August, 1991 he handled stolen property, to wit one Black and Decker saw, knowing or believing the same to have been stolen property.

3 The following are the outline facts of the case. Black and Decker have a DIY shop in Parliament Street, Dublin, where Mr. Patrick Devitt is in charge. At the relevant time there were for sale a number of reconditioned, second-hand or otherwise disposable (other than new) items of machinery in a particular basket at their premises.

4 On the 26th August, 1991, during lunch hour, there was a skeleton staff only on duty at the shop, namely, Mr. Robin Jackman and Ms. Carol Mooney. The accused and another man entered the shop. Mr. Jackman thought that they were acting rather suspiciously and they did not strike him as the usual DIY type persons. Between them Mr. Jackman and Ms. Mooney kept a good watch on the two. It seems that the accused inquired about the possibility of buying some part for a machine. They were certainly in the vicinity of the basket where these machines were kept at one stage and then the other person (not identified or apprehended) left rather hurriedly first, followed by the accused; they each had jackets of some description over their arms which had the implication that they, or one of them, could have carried property from the shop concealed under their jackets.

5 The following day, the 27th August, Mr. Fowler presented himself at the premises again and offered to sell a saw, which is a type of machine. Mr. Patrick Devitt identified it as one of the machines that had been in the basket ready for sale. Suffice it to say that he was very certain that it was a machine that his firm had got in for repair from a particular customer; the customer did not pay for it and, so, it was put up for sale. He was able to identify it to a certainty and clearly there was enough evidence to go to the jury that this was a saw that was on the premises on the 26th August and was presented to Mr. Devitt for sale by Mr. Fowler on the next day.

6 Mr. Fowler in the course of the statement that he made to the gardai said that the machine had been with his family for about six months; that it was his brother's property. He had given a different version to Mr. Devitt, repeated to the gardai, too, and that was that he had bought it at a car boot sale in Ashbourne, Co. Meath some months previously.

7 At the close of the prosecution case, the learned trial judge granted a direction on the larceny charge and withdrew it from the jury's consideration but allowed the count under section 33 of the Larceny Act, 1916 to go to the jury.

8 Mr. Fowler was convicted on this count and was sentenced to one years imprisonment.

9 Counsel for the applicant's essential submission before us is to say that since the judge had withdrawn the case of larceny from the jury there was no evidence of larceny of the implement in question to ground a handling charge. The Court rejects this submission as not having any basis but he puts a more viable alternative submission to this effect: that since there was evidence that the accused was in the premises on the previous day and had acted suspiciously the jury might have been left with the impression that he was, indeed, guilty of larceny and that the judge, in his charge, did not make sufficiently clear to them that before the accused could be convicted of handling the stolen goods the jury would have to be satisfied that he was not the thief.

10 It is clear from a perusal of the judge's charge that he never, in so many words, told the jury that before the accused could be found guilty of the handling charge they had to be satisfied not only that the saw was stolen; that he had handled it knowing or believing it to have been stolen but that before he could be found guilty of the offence of handling they had to be satisfied that it had been stolen by someone else. Here, undoubtedly, the jury could have reached the conclusion that if they found that the other man had stolen the saw (in the sense that he was the one who physically took it out of the shop) that, nonetheless, it was a joint enterprise.

11 Section 33 of the Larceny Act, 1916 (as inserted by section 3 of the Larceny Act, 1990) provides:-

12 (1) A person who handles stolen property knowing or believing it to be stolen property shall be guilty of felony and shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years or to a fine or to both.

13 (2) For the purposes of this Act -

14 (a) a person handles stolen property if (otherwise than in the course of the stealing), knowing or believing it to be stolen property, he dishonestly -

15 (i) receives the property, or

16 (ii) undertakes or assists in its retention, removal, disposal or realisation by or for the benefit of another person, or

17 (iii) arranges to do any of the things specified in subparagraph (i) or (ii) of this paragraph;

18 (b) where a person -

19 (i) receives stolen property, or

20 (ii) undertakes or assists in its retention, removal, disposal or realisation by or for the benefit of another person, or

21 (iii) arranges to do any of the things specified in subparagraph (i) or (ii) of this paragraph,

22 a in such circumstances that it is reasonable to conclude that he knew or believed the property to be stolen property, he shall be taken to have so known or believed 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 so knew or believed;

23 and

24 (c) believing property to be stolen property includes thinking that such property was probably stolen property.

25 (3) A person to whom this section applies may be indicted and convicted whether the principal offender has or has not been previously convicted or is or is not amenable to justice.

26 The Court is of the view that there was evidence of both larceny and receiving (as an alternative) fit to be considered by the jury and that it was the jury's proper province and function to decide on which, if either, count the accused could be found guilty.

27 The treatment of alternative counts in an indictment is a matter that must always be approached with great care. In this regard some observations by the English courts are of assistance. In Stapylton ....