People v Shanahan

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.
• Judgment Date: 11 December 1978
• Neutral Citation: 1978 WJSC-CCA 3640
• Date: 11 December 1978
• Court: Court of Criminal Appeal
• Docket Number: (19-1978)

PEOPLE v. SHANAHAN

THE PEOPLE

v.

PATRICK SHANAHAN

1978 WJSC-CCA 3640

(19-1978)

COURT OF CRIMINAL APPEAL

1 Judgment of the Court delivered this 11th day of December 1978.O'HIGGINS C.J.

O'HIGGINS C.J.

2 Patrick Shanahan, the applicant in this motion for leave to appeal, was on the 21st day of February 1978 convicted in the Circuit Criminal Court before His Honour Judge Roe and a jury of the offence of obtaining goods by false pretences contrary to Section 32(1) of the Larceny Act 1916. The charge related to a cheque for £5,670 drawn by the applicant in favour of Keane Mahony and Smith, Auctioneers, on the Allied Irish Bank, Maynooth, which cheque was given by him to one Fritz Rearden in payment for two tractors which he had purchased and which cheque was dishonoured. Having been so convicted, and having made restitution by way of payment for the two tractors, the applicant was on the 28th February 1978 fined the sum of £250 with 12 months' imprisonment in default. He seeks leave to appeal against this conviction.

3 Mr. Morris who appeared for the applicant relied on three grounds of appeal.

4 In the first place he urged that the case should never have gone to the jury and that the trial Judge should have acceded to his application to direct an acquittal. Mr. Morris in support of this submission asserted that the onus on the prosecution was to prove that at the time of the issuing of the cheque by the Defendant he had a fraudulent intent in that he was aware that the cheque would not be met if and when presented.

5 Mr. Morris conceded that where the prosecution established the issuing of a cheque and the total absence of funds or of any permitted overdraft facility to meet it that that would be a discharge of the onus of establishing a fraudulent intent as a prima facie proof. He contended, however, that in this particular case the evidence showed more than the mere drawing of a cheque and the absence of funds to meet it. It shows, he submitted, that contemporaneously with the presentation of the applicant's cheque there was lodged by him a cheque drawn in his favour by a Mr. Coen for the sum of £5,500. Had this cheque been honoured, which it was not, it would have put the applicant's account into sufficient funds to provide for the payment of the cheque which he had issued. Accordingly, Mr. Morris submitted that there was in this case a further onus upon the prosecution in establishing a prima facie case to prove the circumstances of the dishonouring of the cheque issued by Mr. Coen and the fact that the accused was aware of its worthlessness at the time he issued his own cheque.

6 In the judgment of the Court this submission falls. The Court accepts the general submission that in a case where the crime charged is that of obtaining money or goods by false pretences and where the false pretence is the issuing of a cheque which is not met the onus remains upon the prosecution at all times to establish beyond a reasonable doubt that at the time of the issuing of the cheque the accused was aware that it was not likely to be met out of the account upon which it was drawn.

7 In this case the accused was asked by Garda Burke during subsequent investigations for an explanation as to why the cheque issued by him had been dishonoured. He stated that he himself had stopped the cheque, and clearly implied to the Guard that the dishonouring of the cheque was due to his own stopping of it by reason of a dispute with the drawee arising from the non-delivery by the drawee of documents associated with the tractors purchased. This statement was actively untrue and involved also a total concealment of or failure to mention the situation which gave rise to the first dishonouring of the cheque issued by the accused, that is to say, the failure of the bank to clear the cheque issued to the accused by Mr. Coen which he had lodged to his account.

8 The Court is satisfied that the evidence of Guard Burks as to what was stated to him by the accused upon his investigation coupled with the evidence submitted by the...