DPP v Francis Cunningham

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 27 November 2014
• Neutral Citation: [2014] IECCA 40
• Docket Number: [Appeal No: 265/12]
• Court: Court of Criminal Appeal
• Date: 27 November 2014

[2014] IECCA 40

THE COURT OF CRIMINAL APPEAL

Clarke J., Moriarty J., Herbert J.

[Appeal No: 265/12]

Between/

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

Francis Cunningham

Accused/Appellant

Criminal procedure – Appeal against conviction – Theft – Appellant seeking to quash his conviction for theft – Whether the trial judge was correct to allow the offence of theft to go to the jury

Facts: The appellant, Mr Cunningham, was faced with the allegation of being involved by common design in the armed robbery of a consignment of cigarettes. Mr Cunningham faced, at his criminal trial, five counts being one of robbery, two of false imprisonment, one of possession of a firearm and one of unauthorised use of a mechanically propelled vehicle. Mr Cunningham was found not guilty on one of the counts of false imprisonment. The jury disagreed on the second count of false imprisonment and also on the firearms offence. The jury convicted Mr Cunningham on the road traffic offence and, as an alternative to the count of robbery with which he was charged, found him guilty of theft. Mr Cunningham contended on appeal to the Court of Criminal Appeal that a conviction for theft simpliciter is bad where that conviction concerns theft from an unknown entity and with no details given as to what, where or when that offence allegedly occurred. The DPP submitted that there would be no purpose for a provision which allows alternative verdicts if such a provision required a very specific drafting of a detailed count of the possible alternative crime to be included in the issue paper or indictment. Mr Cunningham argued that he should not have been convicted of the offence of theft by a jury in the Circuit Court under s. 9(4) of the Criminal Law Act 1997 in circumstances where a charge of theft had previously been struck out in the District Court at the request of the DPP and the charge substituted for one of robbery contrary to s. 14 of the Criminal Law (Theft and Fraud Offences) Act 2001. The DPP submitted that the striking out of the charge of theft could not be said to relate to the merits of the substantive case in any way and could not, it was said therefore, cause unfairness or prejudice. Mr Cunningham submitted that the learned trial judge was either incorrect in his finding that he was required to permit the jury to come to an alternative verdict pursuant to s. 9(4) of the 1997 Act, or, if the trial judge was correct in his interpretation of that section, that the section in question is unconstitutional. The DPP argued that the trial judge did not err in relation to charging the jury in relation to s. 9(4) of the 1997 Act with regard to the alternative verdict of theft, and that ultimately it was a matter for the jury to decide whether Mr Cunningham was guilty of the alternative offence.

Held by Clarke J that the fact that an offence of theft was included in the original charges laid before the District Court, but was dropped at that stage of the criminal process on the application of the DPP, did not preclude a trial judge in principle from properly directing a jury that a verdict of guilty in respect of theft is available to them under s. 9(4) of the 1997 Act as an alternative to a count of robbery. Furthermore, Clarke J was satisfied that, in the circumstances of the case, it was clear as to the nature and details of the offence of theft which was being left to the jury; it was also clear that the offence of theft was included within (for the purposes of s. 9(4)) the offence of robbery in respect of which the indictment was laid. Likewise, Clarke J held that there was no unfairness or potential unfairness, on the run of the case, in allowing the offence of theft to go to the jury. In those circumstances the Court of Criminal Appeal was satisfied that the trial judge was correct to allow the offence of theft to go to the jury and correctly directed the jury on the proper approach to be adopted. It did not, therefore, appear to Clarke J that the question of whether the trial judge had or had not got a discretion in that regard truly arose on the facts of the appeal for the approach adopted by the trial judge was, in the Court's view, the correct one in the circumstances of the case.

Clarke J held that he would dismiss Mr Cunningham's appeal against his conviction of the alternative offence of theft; the Court of Criminal Appeal would hear counsel further on whether there were any remaining aspects of the appeal which required being heard.

Appeal dismissed.

Mr. Justice Clarke

Judgment of the Court delivered by Mr. Justice Clarke on the 27th November, 2014.

1 1. Introduction

1.1 This appeal centres on the ability of a jury to bring in a verdict of guilty under the alternative verdict provision contained in s. 9(4) of the Criminal Law Act, 1997. Leaving aside the legal form of any charge brought against the accused/appellant ("Mr. Cunningham"), the central substance of the allegation with which he was faced at his criminal trial was that he was involved by "common design" in the armed robbery of a consignment of cigarettes. Mr. Cunningham faced, at that trial, five counts being one of robbery, two of false imprisonment, one of possession of a firearm and one of unauthorised use of a mechanically propelled vehicle. Mr. Cunningham was found not guilty on one of the counts of false imprisonment. The jury disagreed on the second count of false imprisonment and also on the firearms offence. The jury convicted Mr. Cunningham on the road traffic offence and, as an alternative to the count of robbery with which he was charged, found him guilty of theft.

1.2 In general terms, although it will be necessary to go into the detail of the case made on Mr. Cunningham's behalf shortly, it can be said that the principal focus of his appeal to this Court is based on a contention that the trial judge was incorrect in charging the jury that they could, in all the circumstances of the case, bring in an alternative verdict of guilty in respect of theft. In addition, it is said that, in the particular circumstances of the issues of fact which arose at his trial, the contention that it might be open to find him guilty of theft necessarily gave rise to a situation where he was in danger of being convicted of an offence which was, it is said, too imprecise to allow for a proper conviction. While the appeal brought on behalf of Mr. Cunningham was against conviction and sentence, the question of sentence was left over until the appeal against conviction was determined. This judgment, therefore, relates only to the appeal against conviction.

1.3 In order to better understand the precise legal issues which arose on this appeal, it is necessary to set out the sequence of events which led to the charge to the jury with which Mr. Cunningham takes issue.

2 The Sequence of Events at Trial

2.1 During the course of his trial, it was alleged that Mr. Cunningham was part of a joint enterprise or common design in an armed robbery of a consignment of cigarettes. The robbery was alleged to have been committed against Mr. Joseph O”Toole and Mr. Edward Postol, a driver and a driver”s assistant working for Bond Delivery, a company who deliver large consignments of cigarettes to retailers. Evidence was adduced that, while those men were on their way to deliver a consignment of cigarettes, they stopped at a petrol station where they were approached by a man who had what appeared to be a firearm. That man was said to have forced himself into the delivery van containing the tobacco. Mr. O”Toole gave evidence that he was ordered to drive the van to the back of a public house. Mr. Postol was said to have been tied up with cable ties and evidence was given that Mr. O”Toole was ordered to go to the back of the van. In further evidence, Mr. O”Toole told that court that he was informed by the man with the firearm that there was another person around the side of the van. Mr. O”Toole stated in evidence that he observed that a white Transit van had reversed with its back doors facing the delivery van and that he was ordered to load the Transit van with the tobacco. Mr. O”Toole gave evidence that he was then tied up and locked, with Mr. Postol, in the back of the van that had contained the tobacco. The Court will turn to the alleged role of Mr. Cunningham shortly.

2.2 At the trial, counsel for Mr. Cunningham put it to Mr. O”Toole that no robbery and no false imprisonment had taken place, and that Mr. O”Toole was in fact a participant in a scheme to steal the tobacco products with the individuals who were present in the vicinity of the public house. Counsel for Mr. Cunningham also put it to Mr. O”Toole that he did not pull into the petrol station at all, and alleged that this part of his evidence was ‘a charade’. Further, counsel alleged that Mr. O”Toole had driven straight to the public house ‘as part of some plan that was in being, and it was never intended to reach their ultimate destination that day, they were going to be stolen immediately’. Counsel for Mr. Cunningham continued on this trajectory during his cross examination of Mr. Postol, putting it to the prosecution witness that he was making up his account of events, and suggesting ‘that this is all a cover story for some prearranged plan whereby Bond Delivery were going to ….have their property stolen and this is just a cover story?’

2.3 Hugo Gordan, Operations Manager at Bond Delivery, stated in evidence that he did not give anybody permission to interfere with or take the tobacco products. Additionally, the statement of Paul Maguire, Transport Supervisor at Bond Delivery, was, by agreement, read to the jury. He stated that the ‘did not give anyone permission to take cigarettes from any of the Bond delivery vans...