People (Attorney General) v Carney and Another

• Jurisdiction: Ireland
• Judgment Date: 21 October 1955
• Date: 21 October 1955
• Court: Supreme Court

The People (Attorney General) v. Carney and Another.

THE PEOPLE (at the suit of the ATTORNEY GENERAL)

and

HENRY CARNEY and PATRICK MULCAHY (1)

Court of Criminal Appeal.

Supreme Court.

Criminal law - Shop-breaking and larceny - Alternative count of receiving - Whether jury properly directed on charge of receiving - Two persons tried jointly - Application for separate trials - Credibility of witness - Accomplice - Whether witness an accomplice or not a matter for judge or jury - Corroboration - Whether charge to jury on danger of convicting on uncorroborated evidence of accomplice adequate - Larceny Act, 1916 (6 & 7Geo. 5, c. 50), s. 26, sub-s. 1; s. 33, sub-s. 1.

C. and M. were tried jointly on charges of shop-breaking and larceny and receiving stolen goods. They were acquitted on the count of shop-breaking and larceny and convicted on the count of receiving. The trial Judge refused to grant them certificates that their cases were fit for appeal. They applied to the Court of Criminal Appeal for leave to appeal on the grounds, inter alia, 1, that the trial Judge should have granted an application for separate trials; 2, that the finding of the jury on the count of receiving was inconsistent with their finding on the count of shop-breaking and larceny; 3, that the trial Judge failed adequately to direct the jury on the charge of receiving; 4, that the trial Judge mis-directed the jury in relation to the evidence of a witness, M. K., and in particular by the way in which he introduced to the jury the consideration of this evidence and commented thereon; 5, that the trial Judge failed adequately to direct the jury on the danger of convicting on the uncorroborated evidence of an accomplice; and 6, that the trial Judge should not have left it to the jury to say that a witness, J. K., was not an accomplice.

Held by the Court of Criminal Appeal:—

1, That the trial Judge in refusing the application for separate trials had not failed to exercise his discretion judicially merely because he did not accept the statement of counsel that in his opinion his client would be prejudiced by a joint trial. In the opinion of the Court a trial judge should have clearly placed before him all the points upon which improper prejudice may or may not be created.

2, That there was open on the evidence a rational hypothesis that some person other than the accused stole the property.

3, That in the particular circumstances of the case the direction to the jury on the charge of receiving was adequate.

4, That the trial Judge was entitled to comment upon the evidence of the witness, M. K., having made it clear to the jury that the credibility of witnesses was a matter for them.

5, That the trial Judge's direction to the jury on the danger of convicting on the uncorroborated evidence of an accomplice was correct and adequate.

6, That the question whether the witness, J. K., was an accomplice was properly left to the jury.

On appeal to the Supreme Court, pursuant to certificates granted by the Attorney General, it was

Held by the Supreme Court (O'Byrne, Lavery, Kingsmill Moore, Haugh and Dixon JJ.):—

1, That possession of goods, recently stolen is a fact from which a jury may infer, in the absence of a reasonable explanation by the accused, either that he stole the goods or that he received them knowing them to have been stolen. To sustain a conviction it must be proved that the goods were stolen in fact, and that they were found in the possession of the accused within a period which can be described as recently after the theft. It is for the jury, on the evidence, to decide whether the accused was the thief or whether

he received the goods knowing them to have been stolen. If the time when the goods are proved to be in the possession of the accused is so closely related to the time when the goods are proved to have been stolen as reasonably to exclude the possibility of some other person having been involved, there is no evidence on which a jury could properly convict the accused of receiving and the case should go to the jury merely on a charge of larceny. Where the theft is established and it is shown that the accused was in possession of the goods at a time which may reasonably be described as "recently" after the theft and no reasonable explanation is offered, it is for the jury to say, according to the circumstances, whether he is guilty of larceny or receiving.

2, That both charges were put before the jury in the most express terms. The direction might well have been amplified but the nature and extent of the direction must depend on the circumstances of each case. A clear distinction was drawn between larceny and receiving and the distinction between the offences seemed to have been brought to the minds of the jury. It was clearly involved in the direction that before the jury could convict on the count of receiving, they should be satisfied that some person other than the accused stole the goods and that the accused subsequently received the goods knowing them to have been stolen. The jury were not in any way misled, the elements necessary to constitute the charge of receiving were sufficiently brought to their notice, and they appreciated what facts it was necessary for them to find before they could convict on the charge of receiving.

3, That there was nothing in the case to show that the discretion of the trial Judge was exercised on any erroneous basis or that the refusal to direct separate trials had resulted in a miscarriage of justice. To give effect to the contention that the trial Judge should have acted on the representation of counsel that he would be seriously embarrassed by a joint trial without any indication of the nature or cause of that embarrassment would be tantamount to substituting the discretion of counsel for that of the trial Judge.

4, That there was no substance in the contention that the trial Judge misdirected the jury with reference to the evidence of M. K.

Held further by the Supreme Court (O'Byrne, Lavery, Kingsmill Moore and Haugh JJ.; Dixon J. dissenting) that the trial Judge should not have left it to the jury to say whether the witness, J. K., was an accomplice and, accordingly, the warning as to the danger of acting on his evidence should have been absolute and not conditional.

The Supreme Court accordingly allowed the appeals and quashed the convictions, but, inasmuch as there was ample evidence to justify a conviction, the Court ordered a re-trial on the second count.

Attorney-General v. Finegan, [1933] I. R. 292; Attorney-General v. Joyce and Walsh.[1929] I.R. 526; Attorney-General v. Linehan,[1929] I.R. 19and the judgments of Pollock C.B. and Blackburn J., in R. v. Langmead,1 Le. & Ca. 427, at pp. 439-441, approved.

R. v. Lincoln, [1944] 1 All E. R. 604, distinguished.

Criminal Appeal.

The appellants, Henry Carney and Patrick Mulcahy, were tried together at the Central Criminal Court on the 2nd, 3rd and 4th days of February, 1953, before Mr. Justice Maguire and a jury. The indictment charged them with the offences of shop-breaking and larceny contrary to s. 26, sub.-s. 1, of the Larceny Act, 1916, in that on the 10th or 11th February, 1951, they broke and entered the shop of Monument Creameries Limited at 25 Lower Camden Street, Dublin, and stole therein one safe, the sum of £3,963 1s. 7d. in money, a number of cheques and documents and one two-wheeled truck, the property of the Monument Creameries Limited, and with the offence of receiving these goods knowing them to have been stolen, contrary to s. 33, sub-s. 1, of the Larceny Act, 1916. They were acquitted on the count of shop-breaking and larceny and convicted on the count of receiving. Mulcahy was represented by counsel and solicitor at the trial and on the hearing of the appeals. Carney was not professionally represented. From the evidence given at the trial it appeared that on the evening of Saturday the 10th February, 1951, the premises of the Monument Creamery at 25 Lower Camden Street were closed at about 8 o'clock. There was a safe on the premises, which, on that evening, contained £3,963 1s. 7d., in cash consisting of £10 notes, £5 notes, £1 notes, 10s. notes and some silver and copper, and a number of cheques and other documents. The safe was locked by two employees on the said evening and these two employees brought home with them their respective keys when they left the premises. On the morning of Sunday, the 11th February, 1951, it was discovered that the premises had been broken and entered during the night, that the safe was missing and also a hand-truck which had been kept on the premises. It appeared from evidence tendered at the trial that a few days after the breaking and entering and the larceny of the safe (viz., on or about the 14th February, 1951), Carney and Mulcahy called at 108 Summerhill, where Mrs. Maureen Kelly, the wife of one, John Kelly, whom she had married on the 30th January, 1951, carried on a dairy and grocery business. John Kelly was a lifelong friend of Carney but Maureen Kelly had seen Carney on only a few occasions prior to this visit. Neither of the Kellys knew Mulcahy. When Carney and Mulcahy called to the shop they asked Maureen Kelly if her husband was there and as he was not there she invited them into a room at the rear of the shop to await her husband's return. Maureen Kelly was attending to her shop but she went into the room on two occasions. On one of these occasions she saw that they were counting money and had two large bundles of notes. She indicated to the jury the size of the bundles and stated that the notes seemed to be larger than one pound notes. The accused left the shop at about five o'clock and told her that they would be back again. They returned at about six o'clock and shortly afterwards John Kelly arrived. Mulcahy was sitting in a car outside the shop and Carney and Kelly went out of the shop and when outside Carney asked Kelly if he could...