O'Leary v Cunningham

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 28 July 1980
• Date: 28 July 1980
• Docket Number: [S.C. No. 145A of 1979]

O'Leary v. Cunningham

Denis O'Leary

Complainant

and

Michael Cunningham, Defendant

[S.C. No. 145A of 1979]

Supreme Court

Criminal law - Appeal - Jurisdiction - Alternative charges - Robbery and receiving stolen goods - Conviction by court of trial on second charge on insufficient evidence - No adjudication on first charge - Equivalent to acquittal on first charge - Evidence on appeal sufficient to support conviction on first charge - Appellate court unable to confirm conviction or to convict on first charge - Courts of Justice Act, 1928 (No. 15). s. 18.

The defendant was arrested by the police shortly after a robbery had taken place late at night at a petrol station. The defendant was charged in the District Court with having robbed the station attendant of a sum of money, contrary to s. 23 of the Larceny Act, 1916, and with having received that sum of money on the same occasion knowing that it had been stolen, contrary to s. 33 of the Act of 1916. The charges were tried summarily by the District Justice. He convicted the defendant on the receiving charge and sentenced him; but the District Justice made no order in respect of the robbery charge. At the hearing in the Circuit Court of the defendant's appeal against his conviction for receiving stolen goods, the evidence established that the defendant had taken an active part with others in the robbery and showed, consequently, that the defendant's conviction on the receiving charge was erroneous. The Circuit Court judge stated a Case in which he asked the Supreme Court to determine whether, having found that the defendant was a principal in the robbery, the judge could convict the defendant on the receiving charge and, if not, whether the judge could convict the defendant on the robbery charge.

Held by the Supreme Court (O'Higgins C.J., Griffin and Kenny JJ.), in answering the questions in the negative, 1, that, as the evidence established that he was guilty of the robbery of money on the occasion mentioned in the charges, the defendant could not be convicted of having received that money on the same occasion, knowing it to have been stolen.

The People (Attorney General) v. Carney [1955] I.R. 324 considered.

2. That, in the circumstances, the failure of the District Justice to make an order in respect of the robbery charge must be deemed to be equivalent to an acquittal of the defendant on that charge and that, accordingly, the Circuit Court had no power to set aside that acquittal.

The People (Attorney General) v. Kennedy [1946] I.R. 517 mentioned.

Cases mentioned in this report:—

¹ R. v. Melvin [1953] 1 Q.B. 481.

² R. v. Evans (1916) 12 Cr. App. R. 8.

³ R. v. Coggins (1873) 12 Cox C.C. 517.

⁴ R. v. Perkins (1852) 2 Den. 459.

⁵ R. v. Christ (1951) 35 Cr. App. R. 76.

⁶ Walters v. Lunt [1951] 2 All E.R. 645.

⁷ The Attorney General (Lambe) v. Fitzgerald [1973] I.R. 195.

⁸ The State (McLoughlin) v. Shannon [1948] I.R. 439.

⁹ The State (Attorney General) v. Connolly [1948] I.R. 176.

¹⁰ R v. Seymour [1954] 1 W.L.R. 678.

¹¹ The People (Attorney General) v. Earls [1969] I.R. 414.

¹² R. v. Gamble (1847) 16 M. & W. 384.

¹³ The Minister for Supplies v. Connor [1945] I.R. 231.

¹⁴ The People (Attorney General) v. Carney [1955] I.R. 324.

¹⁵ The Attorney General v. Finegan [1933] I.R. 292.

¹⁶ R. v. Dyer (1801) 2 East P.C. 767.

¹⁷ R. v. Atwell (1801) 2 East P.C. 768.

¹⁸ Connelly v. Director of Public Prosecutions [1964] A.C. 1254.

¹⁹ R. (McDonnell) v. Justices of Tyrone [1912] 2 I.R. 44.

²⁰ R. v. Barron [1914] 2 K.B. 570.

²¹ The People (Attorney General) v. Kennedy [1946] I.R. 517.

²² Benson v. Northern Ireland Road Transport Board [1942] A.C. 520.

Case Stated.

On the 18th January, 1978, the defendant was convicted by District Justice Seán Delap of having received the sum of £47.30, the property of Cornelius O'Mahony, knowing it to have been stolen, contrary to s. 33 of the Larceny Act, 1916. The defendant was sentenced to six months imprisonment. The defendant had also been charged with having robbed Cornelius O'Mahony of that sum on the same occasion, contrary to s. 23 of the Act of 1916; but the District Justice did not make an order relating to that charge.

The defendant appealed to the Circuit Court against his conviction and, on the hearing of the appeal, the evidence adduced by the complainant established that on the night of the 8th November, 1977, the defendant and two others had taken by force the sum of £47.30 from a petrol station in Dorset Street, Dublin. A short time later on the same night they were stopped by the police while travelling in a car. They were taken in a police car to a police station and, on their leaving the car, sums of money were found there. Some of the money was wrapped in a note which the petrolstation attendant identified as having been in his possession with the money that had been taken from him earlier that night.

At the close of the evidence adduced by the complainant, counsel for the defendant submitted to the Circuit Court judge that the appeal should be allowed on the ground that the evidence before the court proved the robbery charge and, therefore, could not support the charge of receiving the same sum of money, knowing it to have been stolen. He also submitted that the court had no power to substitute for the conviction on the receiving charge a conviction for larceny or robbery, and that the only order before the court was the order recording the conviction and sentence for receiving. He referred to R. v. Melvin¹ [1953] 1 Q.B. 481.; the reference to R. v. Evans² (1916) 12 Cr. App. R. 8. at p. 316 of Archbold's Criminal Pleading, Evidence and Practice (32nd ed.); and s. 5 of the Criminal Appeal Act, 1907.

On behalf of the complainant it was submitted that, while it was not possible to convict of larceny and receiving yet, where the larcener remained in possession of the goods for any length of time, it would be open to the court to convict of either offence. The judge then adjourned the matter for further legal argument.

On the further hearing of the appeal, counsel for the defendant renewed his submissions and referred to R. v. Coggins³ (1873) 12 Cox C.C. 517.; R. v. Perkins⁴ (1852) 2 Den. 459.; R. v. Christ⁵ (1951) 35 Cr. App. R. 76.;Walters v. Lunt⁶ [1951] 2 All E.R. 645. in support of his submission that facts which established the participation of an accused as a principal in a robbery could not support his conviction for receiving the goods robbed, unless at some stage the goods robbed had left his possession. He referred to s. 18 of the Courts of Justice Act, 1928, and submitted that the court was not concerned with the robbery charge.

In reply, the complainant submitted that the Circuit Court could convict the defendant of robbery and he referred to The Attorney General (Lambe) v.Fitzgerald⁷ [1973] I.R. 195. and to s. 1, sub-s. 1, of the Criminal Justice (Verdicts) Act, 1976.

On the 25th July, 1979, the Circuit Court judge (His Honour Judge John Gleeson) on the application of the complainant stated a Case pursuant to s. 16 of the Courts of Justice Act, 1947, and thereby referred certain questions of law for determination by the Supreme Court. The questions so referred by the Circuit Court judge were:—

"(a) Has the Court, on finding on the facts that the appellant was a principal in the robbery, and that the goods have been in his possession since the robbery, power to convict the appellant of receiving?

(b) If the answer to (a) be in the negative, may the Circuit Court in the above circumstances convict the appellant of robbery?"

Section 23, sub-ss. 1 and 2, of the Larceny Act, 1916, provides:—

"(1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any...