DPP v Hawkins

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 29 October 2014
• Neutral Citation: [2014] IECCA 36
• Court: Court of Criminal Appeal
• Date: 29 October 2014

In the matter of section 63 of the Courts of Justice Act 1924

Between/

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

Prosecutor/Respondent

and

Carol Hawkins

Accused/Appellant

[2014] IECCA 36

Charleton J, Moriarty J, Kelly J

Bill number 0321DU of 2011 Appeal number 342 of 2012

AN CHÚIRT ACHOMHAIRC CHOIRIÚIL THE COURT OF CRIMINAL APPEAL

Criminal law - Theft of cheques - s. 4 Criminal Justice (Theft and Fraud Offences) Act 2001 - Appeal against conviction - Housekeeper - Cheque signatory - Position of trust - Abuse of position – Disclosure - Exclusion of witnesses - Production orders - Directions to jury - Whether sufficient evidence - Safety of conviction

Facts The appellant, Carol Hawkins, was found guilty by a jury in the Dublin Circuit Criminal Court of 181 counts of theft of cheques valuing €2.8 million during the years of 2006-2008. She was sentenced to 7 years imprisonment. The statement of offence in each count was alleged to be theft contrary to s.4 Criminal Justice (Theft and Fraud Offences) Act 2001. She sought to appeal her conviction relying on the following grounds of appeal: 1. That inadequate disclosure was made by the prosecution in the context of the burden being faced by the defence in testing the evidence adduced in support of the charges; 2. That the main prosecution witness was allowed to hear other prosecution evidence prior to giving his own testimony and should have been excluded from court and that leading questions were asked of him; 3. That production orders necessary to inquire into and adduce evidence of the appellants bank accounts was improperly obtained; 4. That an admission of other wrongdoing by the appellant to the main prosecution witness, her employer Mr Adam Clayton, had been improperly admitted; 5. That a direction should have been granted at the end of the prosecution case as the chain of evidence in respect of the documentary exhibits supporting the charges had not been properly proven; 6. That the charge was not properly founded in law; and lastly 7. That there was insufficient evidence to put before the jury and therefore the conviction was unsafe.

Held The judge stressed disclosure had already been made of all the relevant documents. These were documents uplifted from the appellant”s and Adam Clayton”s bank accounts; the accounting software operated by the appellant within Adam Clayton”s home; all documents seized in a search of the appellant”s house; all relevant cheque stubs and bank statements; copies of all computer hard drives taken from the laptops of the appellant; the forensic analysis conducted on behalf of the prosecution as to the expenditure resulting from the money going into the appellant”s accounts; documents in the possession of the accountants of Adam Clayton and their analysis; and the documents in relation to the litigation between Adam Clayton, the appellant and a firm of accountants on the issue of how this had not been spotted. The judge said the disclosure was more than adequate and, approving the statement in R v Brown [1995] Cr App R 191, he refused to grant unnecessary and oppressive requests for disclosure. In terms of cross-examination, the judge said had it been the case that counsel had instructions that, for instance, Adam Clayton had made a definite decision to reward the appellant on occasions by suggesting that she could pay many thousands of euros into her accounts and could expend these in such way as she wished, then this would have been put during the course of the cross-examination of Adam Clayton by counsel appearing on behalf of the appellant. This was not done. Counsel”s instructions were limited and thus the cross-examination was properly conducted on that basis. The judge reiterated that the defence had nothing to do with the technical proof of the transition of monies from the two accounts of Adam Clayton to the accounts of the appellant. That expenditure was not, in itself, ever challenged. Hence, the defence being mounted had nothing to do with any chain of proof relating to the transmission of money. The judge said there could therefore have been no harm in Adam Clayton hearing such evidence. The judge agreed with the decision of the trial judge and stated he had not fallen into error when considering the exclusion of witnesses. The judge went on to reject the further grounds of appeal regarding production orders, leading questions and the alleged absence of proof in the chain of evidence as to the documentary exhibits. The judge concluded stating he was satisfied that the appropriate charge was applied to the facts of the case and that all the elements of an offence under s.4 of the 2001 Act were properly proven in front of the jury. –The judge ruled there was sufficient evidence upon which the jury could convict the appellant of the offences.

Mr Justice Charleton

Judgment of Mr Justice Charleton delivered on the 29th day of October 2014

1 1. After an 18 day trial, the appellant was found guilty by a jury in the Dublin Circuit Criminal Court of 181 counts of theft of cheques having a value of €2.8 million approximately between 2006 and 2008. On the 6 July 2012 she was sentenced to seven years imprisonment in respect of these offences by the trial judge, His Honour Judge McCartan. She now appeals against that conviction. The statement of offence in each count was alleged to be theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. As a sample, the particulars of offence as stated in count number 49 operate as a template for all of the other counts in the indictment. This reads:

Carol Hawkins did, on or about the 21st day of March 2007 in the County of the City of Dublin, did steal property, to wit, Bank of Ireland cheque number 000963, drawn on bank account number [redacted] in the name of “Adam Clayton Fitzwilliam Account” drawn in favour of J. Hawkins in the amount of €21,748.16, the property of Adam Clayton.

2 Grounds of Appeal

3 2. Each ground of appeal will be dealt with separately. In summary it has been comprehensively argued on behalf of the appellant:

That inadequate disclosure was made by the prosecution in the context of the burden being faced by the defence in testing the evidence adduced in support of the charges;

That the main prosecution witness was allowed to hear other prosecution evidence prior to giving his own testimony and should have been excluded from court and in addition that leading questions were asked of him;

That the production orders necessary to inquire into and adduce evidence of the appellant”s bank accounts was improperly obtained;

That an admission of other wrongdoing made by the appellant to the main prosecution witness, her employer, had been improperly admitted;

That a direction should have been granted at the end of the prosecution case because the chain of evidence in respect of the documentary exhibits supporting the charges had not been properly proven;

4 That the charge is not properly founded in law as fitting the facts alleged; and

That there was no sufficient evidence to put before the jury and that the conviction is therefore unsafe.

5 Background

6 3. The main prosecution witness in this case, and the victim of the thefts, is a musician called Adam Clayton.

7 4. In 1992, Adam Clayton was on holiday over the Christmas vacation and visited an island in the Caribbean. There, he stayed at a resort that consisted of an island with about a dozen cottages on it. The people running the hotel were the appellant Carol Hawkins and her husband John Hawkins. At that time, they had two young children. Falling into conversation with them, it became apparent that they wished to return from the Caribbean and to live somewhere in Europe so that they could bring up their children, and, in particular, find an appropriate place to educate them. Adam Clayton lived on his own at a house in the Rathfarnham area of south Dublin. Because he was doing so much touring with the band U2, he habitually found that on his return he might have failed to pay bills for such things as electricity or telephone and that his house would be cold, cut off from its heating supply, or that the telephone would not work because it had been taken off service. After thinking about it for some time, he decided to employ the Hawkins couple; the appellant to act as his housekeeper, and her husband because of his experience as a chef, to prepare meals occasionally if he had people to dinner and to drive him to the airport the odd time. Over several years, the services which they gave were regarded by him as highly satisfactory. They lived in an annex separate to his house. In the early days, while he was travelling away, he would sign cheques to cover the costs of various household expenses. Eventually, this was seen by him as him as impractical. In consequence, the appellant was given signing rights on two sets of accounts on dates between 2000 and 2008. One of these was called the Danesmoate Farm”s account, and the other was called the Fitzwilliam account. The Danesmoate Farm”s account had a credit card attached to it, which the appellant also had the use of, and a laser card was attached to the Fitzwilliam account which the appellant was also entitled to use. Of the 181 counts in the indictment, 84 were in respect of the Danesmoate Farm”s account and 97 were in respect of the Fitzwilliam account. No charges were brought in respect of the credit card or laser card associated with either account. Instead, every count was in respect of the theft of a cheque. Adam Clayton had a management company which ran all of his touring, studio dates and recording negotiations and the collection of royalties. He employed two accountants in turn, and their job was to oversee his accounts and expenditure. As time went on the appellant was given extra responsibilities beyond her...