People (Attorney General) v Duggan
| Jurisdiction | Ireland |
| Court | Court of Criminal Appeal |
| Judgment Date | 05 April 1958 |
| Date | 05 April 1958 |
Court of Criminal Appeal.
Criminal law - District Court - Charge sheet containing seven charges against accused including charge of receiving stolen goods - Informations received in respect of four charges - Entry by District Justice of the words "N.A. strike out" in respect of receiving charge - Entry interpreted by District Justice, at request of Court of Criminal Appeal, to mean "No Appearance. Strike out" - Whether entry equivalent to a refusal of informations in respect of charge - Whether charge of receiving properly included in indictment - Whether Circuit Court had jurisdiction to try accused upon receiving charge - Whether trial Judge misdirected jury as to onus of proof generally in criminal cases and in particular in respect of charge of receiving - Whether comment by trial Judge on failure of accused to make a statement when charged and cautioned amounted to a misdirection.
M. D., was charged on indictment in the Circuit Criminal Court with one,P. C., inter alia, with the offences of storebreaking and larceny of cigarettes and, in the alternative, with receiving the cigarettes knowing them to have been stolen. The charge sheet upon which M. D., was charged in the District Court contained seven charges and showed that the District Justice, having taken depositions, received informations in respect of four of them. In respect of the charge of receiving the cigarettes, knowing them to have been stolen, the District Justice made the entry "N. A. strike out." M. D.,was acquitted on the charge of storebreaking and larceny and convicted on the charge of receiving. The trial Judge, in instructing the jury as to the essential ingredients of the offence of receiving goods, knowing them to have been stolen, did not tell them specifically that one essential ingredient of the offence was that the goods had to be stolen by some person other than the accused. He did tell them that the charges of storebreaking and larceny and receiving were alternative charges and that if they convicted on the first charge then the second charge did not arise and if they acquitted on the first charge they must consider the charge of receiving. He told them also that to succeed on the storebreaking and larceny charge the prosecution had to prove that the store was broken into, that the goods were stolen, and that they were stolen by the accused. On the receiving charge they had to be satisfied that the goods were stolen; that they were received by the accused, and that at the time he got them he knew that they were stolen.
In the course of summarising the evidence of the witnesses for the prosecution, the trial Judge referred to the fact that Sergeant Devitt was present at the Bridewell on the 19th October where he saw the accused and told him of the investigations he was making. He warned the accused that he was not obliged to say anything unless he wished to do so but anything he did say might be taken down in writing and used in evidence. The trial Judge then said: "He was under no obligation to say anything, but what he did say, of course, is important. If he was an honest man merely carrying these goods to the kiosk surely that was the time—when he was in the Bridewell—to tell the guards. What he did say was: 'I know nothing about it. All I remember is being brought here by a young guard. I was very drunk last night.' When the accused man is charged he had nothing to say. Again I repeat he is not bound to say anything, but if his story is correct that he is an innocent man doing his public duty, surely he would have been very indignant and would have said: 'I was only carrying them to let you know they were there, I had nothing to do with them.' Instead of that you have him saying: 'When first stopped by Guard Woulf I said they were fruit.' Next day his explanation is, 'I know nothing about it. All I remember is being brought here by a young guard. I was very drunk last night.'" The trial Judge then referred to the evidence of the accused as to how he came by the cigarettes and said:"If that was the explanation—it is a matter for you—surely if that was
the explanation the night of the 18th October was the time to tell the guards that, and not today."M. D., applied to the Court of Criminal Appeal for leave to appeal on the grounds, inter alia, 1, that the trial on the count of receiving was without jurisdiction in that the District Justice refused to receive informations in relation to the said charge or to send the accused forward for trial on said charge. 2, that the learned trial Judge misdirected the jury in law on the onus of proof in criminal cases and in particular on a charge of receiving, 3, that the learned trial Judge misdirected the jury in law by stating that the fact that the accused made no statement when charged and cautioned in respect of the offences alleged was a matter which the jury could take into account in assessing the weight of the prosecution's case against him.
Held, by the Court of Criminal Appeal 1, that the entry on the charge sheet was not capable of being interpreted as a refusal of informations on the receiving charge but seemed rather to suggest that the District Justice did not investigate the charge at all and in the circumstances he had no power to make such an order as "strike out" and the entry must be regarded as a nullity. The accused was properly before the Circuit Criminal Court; there was a valid preliminary investigation of certain charges in the District Court; there was a valid receipt of informations upon them and a valid sending forward for trial upon these charges. The count of receiving was properly included in the indictment, as it was supported by evidence, and the Circuit Criminal Court had full jurisdiction to try the accused upon it. The State (Cannon) v. Kavanagh[1937] I. R. 428, discussed and considered. The Attorney General v. Boggan [1958] I. R., distinguished. 2, that the instruction to the jury as to the ingredients of the offence of receiving goods knowing them to have been stolen and as to the onus of proof resting on the prosecution generally and in respect of the charge of receiving was proper and adequate; 3, that the comments of the trial Judge on the fact that the accused made no statement when charged and cautioned must be considered as a misdirection.
The Court was of opinion that the misdirection was...
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