High Court 

In re the Courts (Supplemental Provisions) Acts 1961 to 1991; 

Director of Public Prosecutions and Hogan v Byrne

1998/870 SS

17 November 1998 

MORRIS P: 

This is a consultative Case Stated sent forward to the High Court by the Learned Trial Judge, Judge Delap, a Judge of the Dublin Metropolitan District. 

I have been informed by Counsel on behalf of the Director of Public Prosecutions that the Chief State Solicitor's Office was not consulted in relation to the drafting of the Case Stated. 

The Accused appeared before the Learned District Judge accused that he did "steal property to wit cash and vouchers valued £1,210.07 the property of Tony St Ledger, Manager . . . contrary to Section 2 of the Larceny Act, 1916 as amended by Section 9 of the Larceny Act 1916 (sic) as amended by Section 9 of the Larceny Act 1990." 

The Director of Public Prosecutions consented to summary trial. The Accused pleaded not guilty and was tried before Judge Delap. 

In the Case Stated the facts upon which the prosecution is based are set out in full and they can be summarised as follows: 

On the 27 December 1997 fifteen bags containing cash were checked and placed in a safe in an inner office of the cash office of Dunnes Stores in the Northside Shopping Centre. 

On the 28 December it was discovered that one bag was missing and that some time earlier on that day the Accused who was an employee of a security firm had called to the cash office for change for the reception desk of the store. The missing bag contained approximately £700 cash and vouchers. 

A search of the store was carried out and all persons who had access to the cash office on that day were searched as were their cars. Nothing was found. 

After the store closed the Security Manager carried out a further search and the missing bag and its contents were found on the floor of a room to which only the security staff had access. The seal on the bag was missing and the zip was open but all the contents were intact. The contents of the bag were removed and replaced with newspapers. Surveillance was mounted. 

On the 29 December the Accused entered the room and took possession of the bag. He was confronted by the Security Manager. He said he was sorry. He walked to the Manager's Office and pulled the bag from inside his trousers. 

When confronted by the Guards the Accused said that when he went to the cash office for change on the 28 December, he was given an extra bag of money which he realised he should not have and he left it in the security room. He said that he called to the security office on the 29 December with the intention of bringing the bag to the men's changing room and stating to the Manager that he found it there. 

On these facts the Learned District Judge said (at paragraph 8 of the Case Stated) 'I was of the opinion that as the Accused was aware at an early stage that he should not have the money, he concealed it and did not disclose its whereabouts. When a search was called he intended to keep it and I intended to convict him.' 

The Learned District Judge says that he was unsure whether he should convict the Accused of the charge on the charge sheet or an alternative charge or an amended charge and he says that he was unsure whether he should request (Misprinted as "resist" in the Case Stated) the consent of the Director of Public Prosecutions to amend the charge. 

The Learned District Judge then poses the following questions for the opinion of the High Court: 

(I) 'Was the Accused guilty of any offence under the Larceny Act 1990 in view of the provisions of Section 7 of that Act or of an attempt to commit an offence? 

(II) If the answer to question (I) is 'yes' should the charge be amended to read 'the contents of bag, the property of Dunnes Stores' or similar wording instead of the words 'cash or vouchers valued £1,210.11.' 

(III) If it were an appropriate case to substitute an alternative charge under Section 8 of the Larceny Act 1990 would I again request the consent of the DPP before adopting that course.' 

In my view the appropriate way to deal with this Case Stated is to express my views on the case generally without expressing specific views on the questions stated. 

It should be recognised that the Accused is charged with an offence under Section 2 of the Larceny Act 1916 as amended and it would appear to me that the function of the Learned District Judge is to try the Accused of that offence. It may well be that the facts which emerge in the case could give rise to a conviction of the Accused of a different offence. However, I am of the view that it is not the function of the District Court to seek the consent of the DPP to alter the offence with which the Accused is charged so as to ensure that the Accused is convicted of some offence. I would envisage that the initiative for the substitution of another offence for that charged would come from the Director of Public Prosecutions and that the Learned District Judge being confronted with an application by the Director of Public Prosecutions should rule on this application. 

Accordingly, it does not seem to me that the question of requesting the consent of the DPP to amend the offence charged by the Learned District Judge arises. The request must have its origin with the DPP. 

In the present case it would appear that the Solicitor representing the DPP, Mr Shaw indicated that 'the DPP had no view on the matter.' It therefore appears that there is no request before the Learned District Judge and in these circumstances the question of substituting or altering the charge does not arise. 

With regard to the query as to the Accused guilt of an offence under the Larceny Act the following appears to me to be the position: The guilt or innocence of the Accused of the offences which he is charged is naturally an issue to be determined by the Learned District Judge and by him alone. It would, in my view, be inappropriate for this Court to interfere with the Learned District Judge in carrying out this function. However, the findings made by the Learned District Judge in the Case Stated would appear to make the following matters relevant to the present case. 

Section 1(1) of the Act of 1916 provides that a person can be guilty of stealing notwithstanding that he has lawful possession of the goods if 'being a bailee or part owner thereof, he fraudulently converts the same to his own use or to the use of any person other than the owner.' 

On the date of this alleged occurrence namely the 28 December 1997, the Accused came into possession of the bag and its contents. From the finding of the Learned District Judge it would appear that the Accused only became aware of the fact that he should not have the money 'at an early stage.' From that I gather that the Learned District Judge is making a finding that the Accused only acquired this knowledge at a point in time after he had actually received the bag. 

The definition of bailee in Chitty on Contracts (specific contracts) at paragraph 2641 provides that 'any person is to be considered as a bailee who otherwise than as a servant either receives possession of a thing from another or consents, to receive or hold possession of a thing for another upon an undertaking with the other person either to keep and return or to deliver to him the specific thing or to (convert and) apply the specific thing according to the directions antecedent or future of the other person.' 

In the present case the Accused was not an employee or servant of the owner of the cash. 

In the circumstances the Learned District Judge may be of the view that Section 1(1) of the Act which provides that a person may be guilty of stealing if 'being a bailee' thereof he fraudulently converts the same to his own use . . .' 

It is a question of fact therefore as to whether the Accused in the circumstances of this case did 'convert' the bag and its contents to his own use on the date with which he is charged. 

The facts appear to disclose that the Accused brought the bag and its contents to the room used by the security staff. This is not an area to which he had exclusive access. He left it on the floor of the room. 

It may well be that the Learned District Judge would consider this act to be an act of conversion to his own use or on the other hand he may consider that in view of the fact that there was general access to the room by other members of the security staff that there was not an act of conversion. As I have said this is a matter for the Learned District Judge and he alone to decide. 

The events which occurred on the 29 December, 1998 are not relevant to the present charge save and insofar as they may throw some light on the general case. The Accused is not charged with an offence on that date.