DPP v Noonan

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 16 December 2002
• Neutral Citation: 2002 WJSC-HC 2210
• Court: High Court
• Docket Number: [No. 1327 S.S/2002]
• Date: 16 December 2002

2002 WJSC-HC 2210

THE HIGH COURT

[No. 1327 S.S/2002]

DPP v. NOONAN

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT,1961.

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

and

PASCAL NOONAN

Accused

Citations:

LARCENY ACT 1916 S33

LARCENY ACT 1990 S3

DPP, PEOPLE V O'SHEA 1983 ILRM 592

DPP, PEOPLE V GILLIGAN 1992 ILRM 769

R V GALBRAITH 1981 2 AER 1060

PROES V REVENUE CMMSR 1998 4 IR 182

DONAGHY V WALSH 1914 2 QB 261

DPP V NANGLE 1984 ILRM 171

Abstract:

Criminal law - Evidence - Larceny - Case stated - Whether error tendered in evidence warranted dismissal of charges - Jurisdiction of District Court - Summary Jurisdiction Act, 1857.

The accused had been charged and convicted of handling stolen property in the District Court. The accused stated a case for the opinion of the High Court. It was contended that there had been an error relating to the evidence tendered by the prosecution witnesses relating to the dates on which they, the owners of the property, had identified their property at the local Garda station. The District Court judge had indicated at the trial that the prosecution witnesses had erred with regard to the naming of dates but that the error was not sufficient to justify a direction to dismiss the charges.

Held by Ò Caoimh J in answering the case stated. The learned judge of the District Court was entitled to conclude that the witnesses had been mistaken as to the dates on which they inspected their property at the Garda station. The learned judge was entitled to find that there was a case to answer, to refuse to dismiss the charges and find the accused guilty of the charges.

Judgment of

Mr. Justice Aindrias Ó Caoimh

1 This is an appeal by way of case stated from a decision of Judge Mary O'Halloran, a judge of the District Court assigned to District No 13, on appeal by the accused Pascal Noonan of Coolfree, Ballyorgan, County Limerick from decisions of the District Court convicting the appellant of handling stolen property, to wit two portable bulk milk tanks, the property of Mike Kelliher and Joe Walsh respectively, on the 1^st March 2000, knowing or believing the same to have been stolen, contrary to s. 33 of the Larceny Act, 1916 as amended by s. 3 of the Larceny Act, 1990.

2 The case stated recites the facts as admitted or agreed as found by the judge of the District Court to be as follows:

3 (a) The appellant, having been put on his election, elected to be tried summarily by the District Court and pleaded not guilty to the two charges against him.

4 (b) Michael Kelliher gave evidence in relation to the matter and stated that sometime in February 2000 he was spreading stone on a roadway on his farm. A bulk tanker was at the back of the milking parlour on one of his farms, visible from the road. In between drawing two loads of stone from his farm, he noticed that the bulk tank was missing and he reported it missing to Boherbue Garda Station. He stated that on the 18^th February, 2000 he attended at Bruff Garda Station to inspect a bulk tanker there. He identified it as his on the basis that there was a wheel on the rear left hand side which was bigger than the other three wheels and there was a hole on one of the mudguards. This witness was asked by the prosecuting member of An Garda Síochána, Superintendent O'Keeffe, if he was sure of the date on which he identified his property at Bruff Garda Station to which he replied that he was not sure. He indicted, however, that the identification of his property took place sometime after he discovered it missing. The witness identified the bulk tank by reference to photographs shown to him by the superintendent.

5 (c) On cross examination the witness again stated that the date of his inspection at the Garda Station was the 18^th February, 2000.

6 (d) Joseph Walsh gave evidence of owning a bulk tanker which he loaned to a neighbour of his. The neighbour reported this to be missing some time in February, 2000. He stated that he went to Bruff Garda Station on the 18^th February, 2000 and identified his bulk tank there. He was asked by Superintendent O'Keeffe as to the time when he identified his property at the Garda Station, and whether it was before or after he reported it missing. He replied that it was sometime after he reported it missing.

7 (e) Garda Patrick Kelly, a member of An Garda Síochána stationed at Kilfinane, County Limerick gave evidence. He stated that as a result of information which he had received, he proceeded to investigate the complaints of stolen bulk tanks and in the course of this investigation he swore an information at Shanagolden District Court and obtained warrants from Judge O'Halloran to search the property of the appellant at Coolfree, Ballyorgan, Kifinane and Coolevehy, Kilfinane. As a result he searched the premises of the appellant at Coolfree, Ballyorgan, Kifinane and Coolevehy, Kilfinane and took possession of two bulk tanks which he found at the appellant's premises and he transported them to Bruff Garda Station. He indicated that the date on which he secured the search warrants was the 1^stMarch, 2000 and that the searches were conducted on that day and that he took possession of the tanks and transportation of the tanks to Bruff Garda Station was on that date.

8 (f) Garda Timothy Hartnett gave evidence of accompanying Garda Patrick Kelly to the appellant's premises at Coolfree, Ballyorgan, Kilfinane, County Limerick on the 1^st March, 2000, and speaking to the appellant who denied that there was anything on his property which did not belong to him. He said that during the search on the property he found a milk tank in the farmyard and there were traces of diesel oil on the ground around the milk tank. He cautioned the appellant who told him that he thought this was a tank which a neighbour of his had dropped back to him after having a loan of it and then he stated that it was not his tank because his tank was a single axle tank. The appellant stated that it was in his yard a week or two. The witness confirmed that Garda Kelly arrested the appellant and took him to Bruff Garda Station and that Garda Kelly took possession of the bulk tank at Coolfree and at Coolavehy and had them transported to Bruff Garda Station. Under cross examination the witness confirmed this date of the 1^st March, 2000, as being the date of attending at the appellant's premises and taking possession and transportation of the bulk tanks to Bruff Garda Station.

9 At this point an application was made to Judge O'Halloran to dismiss the charges against the appellant on the basis that the evidence of the owners of the bulk tanks was that they each identified their respective tanks on the 18^th February, 2000 being almost two weeks before the date of securing the search warrants by Garda Kelly on the dates of the alleged...