DPP v Murphy

• Jurisdiction: Ireland
• Judge: Kennedy J.
• Judgment Date: 01 March 2019
• Neutral Citation: [2019] IECA 63
• Court: Court of Appeal (Ireland)
• Docket Number: [90/2016]
• Date: 01 March 2019

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

JOHN CORNELIUS MURPHY

APPELLANT

[2019] IECA 63

Kennedy J.

Birmingham P.

McCarthy J.

Kennedy J.

[90/2016]

THE COURT OF APPEAL

Conviction – Theft – Honest appropriation – Appellant seeking to appeal against conviction – Whether the trial judge erred in fact and in law in directing the jury that there was no basis in the evidence for the defence for honest appropriation to be invoked

Facts: The appellant, Mr Murphy, on the 3rd March 2016, following a trial which had lasted two days, was convicted of four counts of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. Subsequently, he was sentenced to a term of three years’ imprisonment, which sentence was suspended on terms. He appealed to the Court of Appeal against his conviction on the grounds that the trial judge erred in fact and in law in: (i) directing the jury that there was no basis in the evidence for the defence for honest appropriation to be invoked; (ii) directing the jury that in effect, there was no defence, and that this amounted to an impermissible direction to convict; (iii) finding against the defence and refusing to requisition the jury on the issue of “dishonest appropriation”; (iv) refusing to requisition the jury on the application of the defence, supported by the prosecution on the issue of the origin of certain items of evidence relied upon by the defence; (v) refusing the defence application for a direction at the close of the prosecution case.

Held by the Court that, concerning grounds (i) and (ii), as there was no evidence sufficient to put in issue the question of honest belief, there was no basis upon which to leave the issue for the jury’s consideration. Concerning ground (iii), the Court held that the trial judge was correct in refusing to recharge the jury; he had already addressed the issue in his charge and the matter remained with the jury for their assessment. Concerning ground (iv), the Court was not satisfied that the judge erred in his charge on that aspect of the evidence. Concerning ground (v), the Court was satisfied that this issue was an issue four-square within the province of the jury; the Court found no error in the trial judge’s decision to refuse the application.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 1st day of March 2019 by Kennedy J.

1 On the 3rd March 2016, following a trial which had lasted two days, the appellant was convicted of four counts of theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. Subsequently, he was sentenced to a term of three years' imprisonment, which sentence was suspended on terms. He now appeals his conviction.

2 The four counts of theft occurred on diverse dates in June and July 2010. The prosecution's case was that the appellant drew four cheques in the aggregate amount of €18,643 from the account of a charity, namely; Children To Lapland Appeal Limited, and then lodged each of the four amounts to his own personal account.

3 The appellant was a director of the above-mentioned company, which charity organised trips for terminally ill and sick children to visit Santa in Lapland. The prosecution alleged that in 2010 four cheques from the charity were written and signed by the appellant and that he then lodged these cheques to his own personal bank account. The appellant also operated a travel company, Manor Castle Limited trading as United Travel, and the defence put forward by the appellant was that Manor Castle Limited, The Children To Lapland Appeal Trust and the appellant each funded the other and indeed on occasion subsidised the other and that as the appellant was involved in both companies; he had not acted dishonestly in lodging the cheques to his personal bank account.

4 Following the opening speech by prosecution counsel, counsel for the appellant made certain concessions regarding the documentary proofs in the trial, specifically: -

(1) that each cheque was a true copy and was signed by the appellant;

(2) that the copy bank statement in each instance was a true copy of The Children To Lapland Appeal bank statement;

(3) that the lodgement dockets in each instance related to the relevant cheque; and

(4) that the copy bank statement was a true copy of the appellant's personal bank account showing the relevant lodgement in each instance.

5 The admissions were made by the defence pursuant to s. 22 of the Criminal Justice Act 1984.

6 Whilst 5 grounds of appeal were filed, in truth, the substance of the appeal, as fairly and properly agreed by counsel for the appellant, Mr Reynolds BL, concerned grounds 1 and 4. The issue for this Court was whether the trial judge had failed to direct the jury properly or at all on the defence.

Grounds

7 Five grounds of appeal are advanced and it is accepted that grounds 1 and 4 advance a similar argument. They are as follows:

(i) Ground 1:

The learned trial judge erred in fact and in law in directing the jury that there was no basis in the evidence for the defence for honest appropriation to be invoked;

(ii) Ground 4:

The learned trial judge erred in fact and in law in directing the jury that in effect, there was no defence, and that this amounted to an impermissible direction to convict;

(iii) Ground 2:

The learned trial judge erred in fact and in law in finding against the defence and refusing to requisition the jury on the issue of ‘dishonest appropriation’;

(iv) Ground 3:

The learned trial judge erred in fact and in law in refusing to requisition the jury on the application of the defence, supported by the prosecution on the issue of the origin of certain items of evidence relied upon by the defence;

(v) Ground 5:

The learned trial judge erred in fact and in law in refusing the defence application for a direction at the close of the prosecution case.

Grounds 1 and 4

8 Detective Garda Davoren gave evidence, inter alia, that in September 2011 he received the aforementioned documents from the AIB Bank, Morehampton Road, Dublin 4 relating to the bank account in the name of The Children To Lapland Appeal Charity Account ending in the digits 006. He said that the documents showed four debits from The Children To Lapland Appeal Limited charity account specifically €6,998, €6,500, €4,000 and €1,145. In April 2012, the witness received documents from the AIB bank in Stillorgan relevant to the appellant's personal bank account which he held in that branch, which account showed credits in the respective amounts. Prior to obtaining the documents in each instance the witness obtained an order pursuant to s. 52 of the 2001 Act on foot of sworn information, thus enabling him to obtain documents from the bank. The combined value of the four transactions was €18,643.

9 The jury received the certificate of incorporation of The Children To Lapland Appeal Limited and a certified copy of Form B.10 confirming that the appellant and two other persons were directors of the charities since 2002 and also a certified copy confirming that the charity was placed into liquidation in March 2012. On behalf of the appellant, Mr Reynolds BL relied on aspects of cross examination where the witness agreed that the appellant's personal bank account was used to defray wages and expenses on behalf of a company known as Manor Castle Limited. Manor Castle Limited was the appellant's travel business and had a trading name of United Travel. It is necessary to quote the extracts from the transcript relied upon by the defence which were put forward as the “high water mark” of the evidence on this issue: -

‘Q…You are aware that that bank account was used to pay wages and expenses on behalf of Manor Castle, aren't you?

A. I presume it would have been, yes.

Q. No, no no, no. You're giving evidence now as to what you know and the results of your investigation. I am putting it to you that you know that it was used to defray wages and expenses; isn't that correct?

A. Yes, I would have known. Yes, I suppose I would have known, Judge, yes, from time to time he may have paid staff, yes.

Q. No, he did.

A. Okay.’

Detective Garda Davoren was recalled to give evidence of the appellant's interviews and in cross examination the following exchange took place: -

‘Q. And in that…now, this is…this is the bank account that you referred to yesterday as being personal, non-business, non-commercial, but we corrected that, didn't we, because it is a business account or was used for business transactions?

A. He does use it from time to time…

Q. Yes?

A. …for paying employees of the Manor Castle.

Q. And this is the account that those famous four cheques were lodged to; isn't that correct?

A. That's correct, yes.’

10 The charity's bookkeeper, Mr. Joseph Reid, gave evidence that he regularly signed blank cheques from the charity and that the appellant co-signed the cheques, the purpose being to pay the expenses of the charity as they became due. The bookkeeper for Manor Castle Limited trading as United Travel, Mr Victor Matoud, gave evidence that he never lodged cheques on behalf of the travel company into the personal account held by the appellant.

11 In considering grounds (i) and (iv) of the grounds of appeal, it is important to consider the content of the interviews conducted by the Gardaí with the accused. The following is an extract from the interview conducted at Dun Laoghaire Garda Station on the 24th April 2013:-

‘Question: I'm now showing you exhibit DB 11, a cheque for €1,145 made out to pay you from the Children to Lapland Appeal. Is that your signature?

Answer: Yes, that's my signature and that's my writing.

Question: What's it for?

Answer: I've no idea.

Question: Either does Joe Reid, the other director. We want a better explanation than that?

Answer: If I had the cheque book I'd know.

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