People (Attorney General) v Ruttledge

• Jurisdiction: Ireland
• Judgment Date: 01 January 1978
• Date: 01 January 1978
• Court: Supreme Court

The People v. Ruttledge

The People (Attorney General)

and

Ruttledge

Simon Ruttledge and Thomas J. Davidson were tried in July, 1946, in the Dublin Circuit Court before His Honour Judge Connolly and a jury on a charge of unlawful possession of goods stolen outside Ireland contrary to s. 33, sub-s. 4, of the Larceny Act, 1916, as amended. The particulars of the offence charged, as set out in the indictment, were that the accused had "in the city of Dublin and in the county of Tipperary without lawful excuse knowing the same to have been stolen or obtained in any way whatsoever in such circumstances that if the act had been committed in Ireland and the person committing it would have been guilty of felony or misdemeanour, had in their possession a Bedford motor lorry . . . the property of the Northern Ireland Transport Board, so stolen or obtained outside Ireland." Both accused were found guilty on that charge and were sentenced to terms of imprisonment with hard labour.

Both accused applied to the Court of Criminal Appeal for leave to appeal, basing their applications substantially on two grounds:—(i) that, as the evidence showed that the lorry had left the possession of its lawful owners in Belfast, there was no evidence to support the allegation that the initial offence had been committed outside Ireland, and (ii) that the convictions were bad for duplicity, in as much as s. 33, sub-s. 4, of the Act of 1916 created two distinct offences, one a felony and one a misdemeanour, and it could not be determined from a conviction on the indictment whether the jury had intended to convict of the felony or of the misdemeanour. Their applications for leave to appeal were heard on the 22nd-24th October, 1946.

The judgment of the Court of Criminal Appeal (Gavan Duffy P., Black and Haugh JJ.) was delivered by Black J. on the 29th October, 1946, and it entirely rejected the first ground. The court held that the effect of s. 3 of the Adaptation of Enactments Act, 1922, had been to take the expression "the United Kingdom" out of s. 33, sub-s. 4, of the Larceny Act, 1916, as applicable to the State, and to replace it by the expression "Saorstát Éireann" éireann"and that the effect of s. 2 of the Constitution (Consequential Provisions) Act, 1937, had been to take the expression "Saorstát Éireann" éireann" out of the said sub-section and to replace it by the expression "Ireland," but that the interpretation of the expression "Ireland" had been limited by the provisions of s. 2, sub-s. 2, of the Act of 1937 which prevented the term "Ireland" from being applied to any area which, for the time being, is not within the area and extent of application of the laws enacted by the Oireachtas.

With regard to the second ground, the Court of Criminal Appeal held that, while the particulars of offence contained in the indictment were bad for duplicity in that they failed to make it clear whether the accused were being charged with a felony or a misdemeanour, the convictions were none the less indubitable in their intended meaning, in as much as the learned trial judge had clearly told the jury that they must be satisfied that the lorry was stolen and that the accused men knew it to have been stolen, and that the alternative other than knowledge of theft was not a real or practical issue in the case. Accordingly, the Court of Criminal Appeal dismissed the appeal pursuant to the proviso to s. 5, sub-s. 1(a) of the Courts of Justice Act, 1928, which states that the Court of Criminal Appeal "may notwithstanding that they are of opinion that a point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred."

The accused, Ruttledge, obtained a certificate from the Court of Criminal Appeal, pursuant to s. 29 of the Courts of Justice Act, 1924, certifying that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be brought to the Supreme Court.

The appeal of the accused was heard by the Supreme Court (Maguire C.J., Murnaghan, Geoghegan, O'Byrne and Davitt JJ.) on the 3-5th March and the 6-8th May, 1947. The accused relied on the same grounds as had been advanced on his behalf in the Court of Criminal Appeal. The judgment of O'Byrne J., with which the other members of the Supreme Court agreed, was delivered on the 16th May, 1947.

O'Byrne J. 16th May, 1947

In the transitory provisions contained in the Constitution of Saorstát éireann éireann, it is provided that, subject to the Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Saorstát at the date of the coming into operation of the Constitution shall continue to be of full force and effect until the same, or any of them, shall have been repealed or amended by enactment of the Oireachtas. One of the laws in force in the Saorstát at that date was s. 33, sub-s. 4, of the Larceny Act, 1916, and it was, accordingly, adopted as part of the law of the Saorstát. In my view, the effect was the same as if the sub-section were passed as a statute by the Oireachtas in the identical terms in which it appears in the Act of 1916. Accordingly, the sub-section became binding on the Saorstát and its citizens (including persons living here under the protection of the State) and, if any such citizen were found in the State knowingly and without lawful excuse in possession of property stolen or improperly obtained outside the United Kingdom so that the act, if committed within the United Kingdom, would have constituted a felony or misdemeanour, the person so in possession of...