DPP v Gilligan (Nos. 1 and 2)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1993
• Date: 01 January 1993
• Docket Number: [C.C.A Nos. 1 and 2 of 1991]
• Court: Court of Appeal (Ireland)

Court of Criminal Appeal

[C.C.A Nos. 1 and 2 of 1991]

The People (Director of Public Prosecutions) v. Gilligan

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

and

John Gilligan

Case mentioned in this report:—

R. v. Galbraith [1981] 1 W.L.R. 1039; [1981] 2 All E.R. 1060; (1981) 73 Cr. App. R. 124.

Criminal law - Application for leave to appeal conviction and sentence - Offence of receiving stolen goods - Application for direction at close of prosecution's case - Role of trial judge or tribunal - Court must be satisfied as to existence of prima facie case - Whether court required to accept or reject any particular piece of evidence in deciding whether prima facie case made out.

Statute - Interpretation - Construction - Whether offence of receiving stolen goods in existence at time of trial - New offence of handling stolen goods - Whether substitution is a "repeal" - Larceny Act, 1916 (6 & 7 Geo.5, c. 50), s. 33 - Interpretation Act, 1937 (No. 38), s. 21 (1) (e) - Larceny Act, 1990 (No. 9), s. 3.

Criminal law - Sentence - Whether Special Criminal Court erred in principle in imposing a sentence of four years penal servitude in respect of the offence of receiving stolen goods.

Criminal Appeal.

The applicant applied for leave to appeal against conviction and sentence in the Special Criminal Court on the 7th November, 1990, on a charge of receiving stolen goods contrary to s. 33, sub-s. 1 of the Larceny Act, 1916.

At the commencement of the application for leave to appeal, counsel for the applicant applied for an order pursuant to the Data Protection Act, 1988, s. 8, for the production of the records of previous convictions of the co-accused for the purpose of comparison. This application was refused.

The application with regard to conviction was heard on the 16th December, 1991, and judgment was reserved. Judgment affirming the conviction was delivered on the 20th December, 1991, whereupon the Court then heard the application for leave to appeal severity of sentence.

Section 3 of the Larceny Act, 1990, which came into force on the 16th August, 1990, provides inter alia as follows:—

"3. The principal Act is hereby amended by the substitution for section 33 of the following section:—

• 33. (1) A person who handles stolen property knowing or believing it to be stolen property shall be guilty of felony . . ."

Section 21, sub-s. (1) (e) of the Interpretation Act, 1937, provides as follows:—

"21. (1) Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears, such repeal shall not—

• (e) prejudice or affect any legal proceedings, civil or criminal, pending at the time of such repeal in respect of any such right, privilege, obligation, liability, offence, or contravention as aforesaid."

The applicant was convicted on the 7th November, 1990, by a Special Criminal Court of receiving stolen goods. The circumstances were that a break-in took place on the night of the 27th/28th January, 1989, in a retail premises in Enniscorthy called Bolger's Hardware and a large quantity of hardware goods were stolen. The following night the gardai mounted a surveillance on a premises in Clondalkin, County Dublin in the course of which they observed the applicant off-load goods from a lorry into a van. The goods had price tags bearing the legend "Bolgers Hardware" on them and at the trial the goods were identified by Mr. Bolger as having come from his premises. The owner of the Clondalkin premises, a Mr. Griffin, who was called by the prosecution, gave evidence that the goods in question had been brought to his premises long before the night of the burglary of the Bolger premises. Counsel for the applicant applied for a direction at the close of the prosecution's case on the basis that there was an inconsistency in the prosecution's case. This application was refused. The applicant was convicted and sentenced to four years penal servitude.

The applicant applied to the Court of Criminal Appeal for leave to appeal his conviction and sentence. Counsel for the applicant argued that this refusal to grant a direction amounted to a mistrial and that the evidence against the applicant was circumstantial and therefore the question was whether it was capable of excluding anything except the guilt of the accused.

Counsel submitted that the court in refusing the application must have rejected the evidence of Mr. Griffin and accepted the evidence of Mr. Bolger and a trial judge sitting with a jury could not reject such evidence since the matter of the credibility of witnesses was for the jury to decide.

The applicant also appealed in relation to the offence of receiving stolen property contrary to s. 33, sub-s. 1 of the Act of 1916. It was argued that at the date of the trial and conviction of the applicant the offence of receiving was an offence unknown to law because s. 3 of the Act of 1990 had by that time substituted the offence of handling stolen property for that of receiving.

Counsel for the applicant argued that by the use of the word "substitution" in the Act of 1990, the offence of receiving was abolished and had been replaced by the new offence of handling. It was submitted that the applicant, having been convicted of receiving, had been convicted of an offence unknown to law at the date of the trial. Counsel stated that a "substitution" was not a "repeal" pursuant to s. 21 of the Interpretation Act, 1937, and therefore s. 21...