DPP v Larkin
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 21 January 2019 |
| Neutral Citation | [2019] IEHC 16 |
| Docket Number | [2017 No. 956 S.S.],[2017 No. 956 SS] |
| Court | High Court |
| Date | 21 January 2019 |
[2019] IEHC 16
THE HIGH COURT
Allen J.
[2017 No. 956 S.S.]
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICATION ACT, 1857 AS EXTENDED BY SECTION 21 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
Prosecution – Case stated – Possessing stolen property – District Court seeking to state a case for the opinion of the High Court – In a prosecution for an offence under s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 is the prosecution always required to prove beyond a reasonable doubt that the accused did not steal the relevant items
Facts: The accused/respondent, Mr Larkin, on 10th January, 2017, came before the Dublin Metropolitan District Court to answer a charge of possessing stolen property, to wit a Kindle and a Samsung mobile phone, contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001. At the close of the prosecution case, counsel for the accused, citing People (Director of Public Prosecutions) v Peter O’Neill (Unreported, Court of Criminal Appeal, 24th July, 1995) applied for a dismissal on the ground that the prosecution had not proved beyond reasonable doubt that the accused was in possession of the items “otherwise than in course of stealing”. The District Court judge dismissed the charge but, on the application of prosecutor/appellant, the Director of Public Prosecutions, stated a case for the opinion of the High Court on the following questions: (i) In a prosecution for an offence under s. 18 of the 2001 Act is the prosecution always required to prove beyond a reasonable doubt that the accused did not steal the relevant items? (ii) If yes, was she correct in law in determining that the prosecution had not discharged the burden in this case? (iii) Was she correct in dismissing the charge? The first question asked by the District Court judge was effectively answered by the Court of Appeal in a judgment given on 15th May, 2018 in a case of the People (Director of Public Prosecutions) v Daniel Connors [2018] IECA 144 which explained that although for a possession offence to have been committed the possession relied upon must have been “otherwise than in the course of stealing”, it does not preclude a thief from also being convicted of being in possession of stolen goods provided that the theft has been completed at the time of the act of possession relied upon as representing the actus reus of the offence of possession of stolen goods. When the case stated came on for hearing on 12th November, 2018 it was agreed that the answer to the first and third questions was “no” and that the second question did not arise. By then the District Court Judge had been appointed as judge of the Circuit Court and the only issue left to be decided was whether the case could (or if it could, whether it should) be remitted to the District Court to a judge other than the judge who had stated and signed the case stated.
Held by the High Court that a re-trial would single out the respondent from the many others in the same position who were acquitted on the same point of law but whose acquittals were not appealed.
The High Court held that it would not remit the matter to the District Court.
Judgment approved.
This case raises an interesting question of law which, although previously discussed in a number of cases, does not appear to have been finally decided.
On 10th January, 2017 Stephen Larkin (‘ the accused’) came before District Court Judge Kathryn Hutton sitting at the Dublin Metropolitan District Court to answer a charge of possessing stolen property, to wit a Kindle and a Samsung mobile phone, contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.
The accused, by counsel, admitted that the property was stolen. The evidence established that the accused had been found in possession of the items. The prosecuting Garda accepted in cross-examination that the accused was suspected of stealing them. At the close of a prosecution case, counsel for the accused, citing People (Director of Public Prosecutions) v. Peter O'Neill (Unreported, Court of Criminal Appeal, 24th July, 1995) applied for a dismiss on the ground that the prosecution had not proved beyond reasonable doubt that the accused was in possession of the items ‘ otherwise than in course of stealing’.
The District Court judge dismissed the charge but, on the application of the Director of Public Prosecutions, stated a case for the opinion of the High Court on the following questions:
(i) In a prosecution for an offence under s. 18 of the Criminal Justice (Theft and Fraud) Offences Act, 2001 is the prosecution always required to prove beyond a reasonable doubt that the accused did not steal the relevant items?
(ii) If yes, was I correct in law in determining that the prosecution had not discharged the burden in this case?
(iii) Was I correct in dismissing the charge?
The first question asked by the District Court judge was effectively answered by the Court of Appeal in a judgment given on 15th May, 2018 in a case of the People (Director of Public Prosecutions) v. Daniel Connors [2018] IECA 144 which explained that although for a possession offence to have been committed the possession relied upon must have been ‘ otherwise than in the course of stealing’, it does not preclude a thief from also being convicted of being in possession of stolen goods provided that the theft has been completed at the time of the act of possession relied upon as representing the actus reus of the offence of possession of stolen goods.
When the case stated came on for hearing on 12th November, 2018 it was agreed that the answer to the first and third questions was ‘ no’ and that the second question did not arise. By then Her Honour Judge Hutton had been appointed as judge of the Circuit Court and the only issue left to be decided was whether the case could (or if it could, whether it should) be remitted to the District Court to a judge other than the judge who had stated and signed the case stated.
Section 2 of the Summary Jurisdiction Act, 1857 provides:
‘After the hearing and determination by a Justice or Justices of the Peace of any information or complaint which he or they have power to determine in a summary way, by any law now in force or hereafter to be made, either party to the proceeding before the said Justice or Justices may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing within three days after the same to the said Justice or Justices, to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of one of the Superior Courts of Law to be named by the party applying;…’
Section 6 of the Summary Jurisdiction Act, 1857 provides:
‘The Court to which a case is transmitted under this Act shall hear and determine the question or questions of law arising thereon, and shall thereupon reverse, affirm, or amend the determination in respect of which the case has been stated, or remit the matter to the justice or justices, with the opinion of the Court thereon, or may make such other order in relation to the matter, and may make such orders as to costs, as to the Court may seem fit; and all such orders shall be final and conclusive on all parties: …’
Section 9 of the Act of 1857 provides that:
‘After the decision of the Superior Court in relation to any case stated for their opinion under this Act, the justice or justices in relation to whose determination the case has been stated, or any other justice or justices of the peace exercising the same jurisdiction, shall have the same authority to enforce any conviction or order, which may have been affirmed, amended, or made by such Superior Court, as the justice or justices who originally decided the case would have had to enforce his or their determination if the same had not been appealed against; …’
Section 51(1) of the Courts (Supplemental Provisions) Act, 1961 provides:
‘Section 2 of the Summary Jurisdiction Act, 1857, is hereby extended so as to enable any party to any proceedings whatsoever heard and determined by a justice of the District Court (other than proceedings relating to an indictable offence which was not dealt with summarily by the court) if dissatisfied with such determination as being erroneous on a point of law, to apply in writing within fourteen days after such determination to the said justice to state and sign a case setting forth the facts and the grounds of such determination for the opinion thereon of the High Court.’
In Director of Public Prosecutions v. Galvin [1999] 4 I.R. 82 the respondent had been acquitted by direction of the District Court judge of a charge of drunken driving. The Director of Public Prosecutions applied for a case stated but before the case stated was signed the judge had been appointed as a judge of the Circuit Court. Mr. Justice Geoghegan struck out the case stated on the ground that s. 51(1) of the Courts (Supplemental Provisions) Act, 1961 required that the judge who heard the case should still be a judge of the District Court at the time of signing the case stated.
The judgment turned on the fact that the District Court judge who had heard the case was not still such a judge of that court when he signed the case stated but Geoghegan J. examined the scheme of the legislation and such limited authority as was available.
Mr. Justice Geoghegan looked first at the decision in Kean v. Robinson [1910] 2 I.R. 306. That was a case which had been decided by three Justices of the Peace. The request for a case stated appears to have been made to all three but two of them died before it was signed: one before it had been approved,...
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...judge. 33 . The principles underlying an appeal by way of case stated were discussed in a recent judgment of Allen J. in DPP v. Larkin [2019] IEHC 16. There, a District Court judge had dismissed a charge under s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001, but on the app......