DPP v Michael Byrne

JudgeKeane C.J.
Judgment Date07 June 2000
Neutral Citation2000 WJSC-CCA 2426
CourtCourt of Criminal Appeal
Date07 June 2000

2000 WJSC-CCA 2426

The Court of Criminal Appeal

Keane C.J.

Lavan J.

O'Donovan J.

75 of 1999
The People at the Suit of the Director of Public Prosecutions


Michael Byrne


LARCENY ACT 1916 S33(1)


DPP V MYERS 1964 2 AER 881







Criminal Law

Evidence; hearsay; handling; applicant had been convicted of handling a motor car knowing or believing it to be stolen; applicant seeking leave to appeal against conviction on the grounds inter alia that the trial judge had wrongfully admitted hearsay evidence; whether the trial judge erred in law in ruling that the prosecution in the circumstances were not obliged to produce a certificate under s. 6, Criminal Evidence Act, 1992 in order to render evidence admissible; whether the trial judge was correct in not withdrawing the case from the jury at the close of the prosecution's case; whether the trial judge was wrong in law in not recharging the jury in respect of a number of requisitions raised by counsel; whether the trial judge had made it clear to the jury that it was not enough for the prosecution to establish that the applicant had received the stolen vehicle and that the onus was on them to prove beyond a reasonable doubt that the vehicle had been received by the applicant knowing or believing it to have been stolen; s.33(1), Larceny Act, 1916; s.3, Larceny Act, 1990; ss. 5 & 6, Criminal Evidence Act, 1992.

Held: Leave to appeal refused.

D.P.P. v. Byrne - CCA: Keane C.J.- 07/06/2000 - [2001] 2 ILRM 134

The applicant had been convicted of a handling offence and was sentenced to three years imprisonment. The applicant had been refused leave to appeal and appealed that refusal. The applicant argued that the trial judge had wrongfully admitted hearsay evidence and had not correctly charged the jury. Keane CJ, delivering judgment, held that the evidence in question had been correctly admitted and a certificate under section 6 of Criminal Evidence Act, 1992 was not required. The jury had been correctly charged by the trial judge and in the light of the directions received from the trial judge must have been aware of the correct standard in relation to the onus of proof. The application would therefore be refused.


JUDGMENT of the Court delivered on the 7th day of June 2000 by Keane C.J.

Keane C.J.

The applicant was charged with two counts of stealing a motor car or in the alternative of handling the motor car knowing or believing it to be stolen contrary to s.33 (1) of the Larceny Act, 1916 as substituted by s. 3 of the Larceny Act1990. He was tried in the Circuit Court (Midland Circuit) at Longford by His Honour Judge Anthony Kennedy and a jury. The jury unanimously found him guilty on the charge of handling and he was sentenced by the learned trial judge to three years imprisonment, the sentence to be suspended for three years on his entering into a bond of £100, and sums to other person. An application for leave to appeal having been refused, the applicant has now appealed from that refusal.


The circumstances giving rise to the prosecution were as follows. The applicant was at the relevant time the proprietor of a firm called"Michael Byrne Motors", who were dealers in motor vehicles and carried on business on the Sligo Road, Longford.


At the trial, one Gerard Mulvihill gave evidence that, in January 1996, he bought a white Peugeot 306 van, the registration number of which was 96 LD 346, from Michael Byrne Motors. On the 11th February 1996 he was involved in a collision while driving the car and it was, as a result, written off. He said that the car was collected by Michael Byrne Motors on the evening of the accident by arrangement with one Patrick Byrne (a brother of the applicant) and was subsequently traded in by him to Michael Byrne Motors.


In December 1996, one Seamus Quinn purchased a white 306 Peugeot van from one Gerard Sherlock, the registration number of which was 96 D34596. Evidence was given of examinations of this car at the trial from which the jury were invited to infer that it consisted of the chassis of the crashed vehicle 96 LD 346 and the body shell of another vehicle which had been stolen from the forecourt of Lough Owel Motors in Mullingar, where it was on display in the forecourt. Mr. Sherlock in his evidence said that he had purchased the car number 96 D 34596 from Michael Byrne Motors, that he had paid for it by cheque in the sum of £7,750 which he gave to the applicant on the 9th January 1997 and that, at the request of the applicant, he had made the cheque payable to "John Fox". An officer of the Revenue Commissioners, James Hennessy, gave evidence that he had received a letter from Michael Byrne Motors, purporting to be signed by Michael Byrne, requesting that the vehicle 96 LD 346 be"de-registered". The letter also said that the vehicle, before it was delivered to a customer, developed an engine problem and this was the reason for having it de-registered.


A number of witnesses gave evidence as to the importation of a white Peugeot 306 van via Rosslare and of its delivery to Lough Owel Motors. The witnesses also gave evidence as to the chassis number/engine number of this vehicle and the jury were invited to infer that this was the vehicle the shell of which was attached to the chassis of the crashed vehicle, which was then sold by Michael Byrne Motors to Gerard Sherlock.


At the close of the prosecution's case, counsel on behalf of the applicant applied for a direction. The application was granted in respect of the charge of stealing, but was refused in respect of the charge of handling, by the learned trial judge. The applicant then gave evidence, in which he denied having written the letter asking for the"de-registration" of the vehicle with the registration number 96 D 34596 to Mr. Sherlock: that transaction had been effected by his brother, Patrick Byrne.


Mr. Patrick Byrne also gave evidence and said that he was responsible for writing the letter concerning the de-registration of the van to which he said he had forged the applicant's signature. He said that he had bought the shell from a Mr. Scott Lafferty (who also gave evidence) and that he understood that he in turn had got it in Northern Ireland. He said that the applicant played no part whatever in repairing the vehicle and selling it to Mr. Sherlock.


The jury having been charged by the learned trial judge, as already noted unanimously found the applicant guilty. The application for leave to appeal, as argued in this court, was based on the following grounds:-


(1) That the trial judge wrongfully admitted hearsay evidence relied on by the prosecution for the purpose of proving the importation of the allegedly stolen vehicle, its delivery to and subsequent removal from Lough Owel Motors and the utilisation of the shell of that vehicle in the manner already referred to;


(2) The refusal of the trial judge to grant a direction at the close of the prosecution's case;


(3) The failure of the trial judge to recharge the jury in respect of certain matters when requested so to do;


(4) What was said to be an erroneous direction by the trial judge to the jury as to the nature of the offence of handling.


These grounds will be considered in turn.


The evidence which was objected to on behalf of the applicant as being hearsay can be summarised as follows.


Mr. Jackie O'Brien said that in April 1996 he was employed by National Vehicle Deliveries Limited to check cars when they came into Rosslare Port for damage and to fill in a form with the chassis number, colour, key code etc. These are all new cars. The chassis number was also sometimes referred to as the Vehicle Identification Number or VIN for short. He produced a form with his signature relating to an examination carried out by him on a vehicle on the 23rd April 1996, which was a white Peugeot 306 XAD van. He recorded the chassis number as VF 37 SD9 B231166197 and the engine number as 6001992.


Mr. John Flaherty, a lorry driver, gave evidence that in the month of May 1996 he was employed as a lorry driver transporting vehicles to different parts of the country. He said there were certain records taken in relation to his vehicle, called NVD daily transport sheets. He said that the transport sheet for the 18th May 1996 recorded the collection by him of a Peugeot 306 XAD with chassis number 31166197 in white from Rosslare. He transported that vehicle on the 18th May 1996 to Lough Owel Motors in Mullingar. He said that it was his signature on the sheet. He said that, because the form was not big enough, they sometimes put in only the last four numbers of the chassis number.


Mr. Alan Graham said that on the 18th May 1996 he was employed by Lough Owel Motors in Mullingar and was present when a vehicle was delivered to the premises by Mr. Flaherty. He said that he examined the vehicle to ensure that it was not damaged and, having inspected it, signed a form acknowledging receipt of the vehicle. He identified a form produced to him relating to a Peugeot 306 XAD white van with a chassis number 31166197. He had checked the chassis number personally himself to make sure that it was the same as the number on the form. The number was stamped on the inside of the bonnet. He had put that particular vehicle on display in the forecourt of the premises on the 1st June 1996. That was a bank holiday weekend. When he came back to work on the following Tuesday, the van was missing.


Evidence was given by Sergeant P. J. Gallagher, who had special training in the identification of stolen vehicles, that he had examined the vehicle with the registration number 96 D 34596. He said...

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