DPP v Wallace

 
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1982 WJSC-CCA 2998

THE COURT OF CRIMINAL APPEAL

O'Higgins C.J.

McWilliam J.

Ellis J.

Nos. 88 and 90/1981
D.P.P. v. WALLACE
DIRECTOR OF PUBLIC PROSECUTIONS
.v.
PATRICK WALLACE and GERARD WALLACE.
1

Judgment of the Court delivered on 22nd day of November 1982

2

Patrick Wallace, Gerard Wallace and a third brother, Brendan Wallace, were convicted by a jury in the Dublin Circuit Court of the larceny of leather jackets and two suits at Thurles, Co. Tipperary, on 26th February, 1981, and of an attempt to steal clothing at the same place on 10th March, 1981. Patrick Wallace and Gerard Wallace were each sentenced to five years penal servitude in respect of the first offence and to five years imprisonment in respect of the second offences, the sentences to run concurrently. Brendan Wallace was given a suspended sentence of eighteen months and he has not appealed.

3

Mr. Patrick Stakelum owns a men's outfitters shop in Thurles and, adjoining it, is a ladies' outfitters shop owned by his father, Robert Stakelum. At the back of the two shops is a communicating passage between them. All members of the staff are related to the owners and the staff of each shop worked in the other shop from time to time.

4

After lunch on 26th February, 1981, Miss Joan Bergin was alone in charge of the men's shop when two men came into the shop and went down to that back where there were men's suits and jackets hanging on display. Miss Bergin asked could she help them as they were flicking through the clothes but they said that they were just looking. One of them had a cardboard box with selotape on it held against his chest. At this stage a third man entered the shop and was attended by Miss Bergin at the other end of the Shop. He said he wanted a white shirt with a peaked collar. Mrs. Kitty Stakelum saw the first two men from the ladies shop and sent Mrs. Mary Stakelum to help Miss Bergin. Mrs. Mary Stakelum went into the men's shop but did not see that two men with the box and it may be assumed that they had left before she arrived. She assisted Miss Bergin to produce shirts for the third man but he was not satisfied with the shirts he was shown and said he was not going to buy a shirt and also left the shop. Some short time later Mr. Patrick Bergin came back to the men's shop and found that six leather jackets and two suits were missing although there had been no sales since he had examined them before lunch.

5

On 10th March, 1981, Mr. Patrick Stakelum, was in the men's shop with his wife, Mrs. Mary Stakelum, when two men came into the shop carrying a similar box in a similar manner as the men had done during the episode ten days earlier. These men also went to the part of the shop where the suits and jackets were hanging. Mr. Stakelum followed them but they said they were just looking. At this stage a third man entered the shop and went to the shirt counter and Mr. Stakelum asked his wife to attend this man. He also asked for a shirt with a peaked collar and Mrs. Stakelum showed him some shirts while Mr. Stakelum remained with the other two men. After a while those two men left and were followed by the third men. None of them purchased anything. Mr. Stakelum watched the men for a short time from his shop and after about ten minutes went out on to the street in the direction the men had gone and met them coming back and then went and notified the guards. In the meanwhile Mrs. Kitty Stakelum had followed the men from the ladies shop and saw them enter another men's shop and eventually followed them to Quinsworth where she pointed them out to the guards.

6

In the District Court the accused were charged with stealing the clothes on 26th February. The book of evidence dealt with both incidents and a count of attempting to steal on 10th March was included in the indictment.

7

A number of submissions have been made on behalf of the appellants.

8

1. Exception is taken to the addition of the second count on the ground that the accused were not given any opportunity to plead to it in the District Court. As the only pleas open to them were those of guilty or not guilty it is difficult to understand this objection because these two pleas could adequately be made in the Circuit Court on arraignment. It is not proposed to consider this argument, which was not supported by any authority, any further.

9

2. Although the prosecution is entitled to add counts, only counts relating to the same incident may be added.

10

3. The second count should not have been added because this allowed evidence of system and only two episodes could not establish a system.

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4. The two counts should not have been tried together because different issues arose on each count. The issue on the first count was that of the visual identification of the accused and the issue on the second count was that of evidence of an attempt to steal. Therefore the accused must be greatly prejudiced as the jury would associate the clear identification of the accused on the second count with the alleged visual identification of the accused on the first count and would associate the undoubted theft in the first incident with the alleged attempt to steal in the second incident.

12

5. That the trial judge in his charge did not deal properly with the question of identification in that he did not direct the attention of the jury to the evidence relevant to the identification of the accused on the first count although he did warn the jury about the dangers when dealing with evidence of visual identification.

13

6. Generally, the trial judge did not direct the jury to consider the evidence relevant to each count separately and did not, himself, when dealing...

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