State (Foley) v Carroll

• Jurisdiction: Ireland
• Judgment Date: 01 January 1980
• Neutral Citation: 1978 WJSC-HC 2651
• Date: 01 January 1980
• Docket Number: 422 S.S./1978,[1978 No. 422 SS.]
• Court: High Court

STATE (FOLEY) v. CARROLL

THE STATE (CHRISTOPHER FOLEY)

.v.

THE DIRECTOR OF PUBLIC PROSECUTIONS AND DISTRICT JUSTICE CARROLL

1978 WJSC-HC 2651

422 S.S./1978

THE HIGH COURT

1 Judgment of the President delivered the 23rd day of July 1979.

2 This is an application to make absolute notwithstanding cause shown a Conditional Order of Certiorari made on the 24th of October 1978 in respect of a conviction of the prosecutor in the District Court of Cork on the 11th of November 1977.

3 The prosecutor was on that date convicted on a charge of larceny contrary to Section 2 of the Larceny Act 1916 the subject matter of the larceny being:

"A quantity of corrugated plastic sheeting to the value of £880 the property of Niall Sparks"

4 On the affidavits before me on the hearing of this application it was established that Miall Sparks was at all material times i.e. between the 1st of September 1977 and the 1st of November 1977 a Manager in the employment of Ward and Gladstone Limited and that that firm was the owner of the plastic sheeting. The prosecutor was at all material time and in particular at the time of the commission of the offence in the employment of the same firm namely Ward and Gladstone Limited.

5 The submission made on behalf of the prosecutor is that these facts which were established at the hearing of the charge indicate that the accused had committed an offence under Section 17 of the Larceny Act 1916 and that accordingly Section 2 of the Larceny Act 1916 which relates to offences in respect of which no special punishment is provided under that Act or any other Act for the time being in force is inapplicable and it is contended that the conviction is therefore bad.

6 Section 2 of the Larceny Act 1916 provides as follows:

"Stealing for which no special punishment is provided under this or any other Act for the time being in force shall be simple larceny and a felony punishable with penal servitude for any term not exceeding five years"

7 It has been decided by the Supreme Court in the State James P. Simmons .v. The Governor Portlaoise Prison unreported but delivered on the 25th of Jun 1968 that this Section does not create an offence. In the Judgment of the Court delivered by Chief Justice O Dalaigh it is stated as follows:-

"Simple larceny is not an offence created by Statute. It is an offence at common law. All that Section 2 does is to designate the punishment for common law larceny.

The addition of the words "contrary to section 2 of the Larceny Act 1916" does not render the indictment bad. Indeed as has been observed in the Court of Criminal Appeal in England the reference to the Section is unobjectionable and indeed convenient as it serves to direct attention to the fact that the charge is not one of compound or aggravated larceny and to the punishment which the offence charged carries. See practice point...