Neutral Citation:  IEHC 239
THE HIGH COURT
[2014 No. 1311 SS]
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA THOMAS MURRAY)
JUDGMENT of Mr. Justice Noonan delivered the 16th day of April, 2015
2. On the 20th of May, 2014, the defendant appeared before Dublin Metropolitan District Court charged with the following offence:
4. At the close of the prosecution case, counsel for the defendant sought a direction on the basis that there was no evidence from an injured party and therefore the prosecution had not proved that the bicycle was stolen. The matter was adjourned for further legal argument to the 3rd of June, 2014. Following further legal submissions, the court referred the following questions to this court for determination:
(ii) Can the court take into account the admissions of the defendant as to his state of mind at the time of purchasing the property/circumstances surrounding the purchase of the property in question in determining whether or not the property was in fact stolen or does this evidence solely go towards proving the mental element of the offence?
5. Section 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 provides as follows:
(2) Where a person has in his or her possession stolen property in such circumstances (including purchase of the property at a price below its market value) that it is reasonable to conclude that the person either knew that the property was stolen or was reckless as to whether it was stolen, he or she shall be taken for the purposes of this section to have so known or to have been so reckless, unless the court or the jury, as the case may be, is satisfied having regard to all the evidence that there is a reasonable doubt as to whether he or she so knew or was so reckless.
(3) A person to whom this section applies may be tried and convicted whether the principal offender has or has not been previously convicted or is or is not amenable to justice.
(4) A person guilty of an offence under this section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both, but is not liable to a higher fine or longer term of imprisonment than that which applies to the principal offence.”
7. In R. v. Sbarra (1919) 13 Cr. App. R. 118, the appellant was convicted of receiving goods knowing them to have been stolen. On appeal to the Court of Criminal Appeal, he contended that there was no evidence that the goods were in fact stolen. The judgment of the court was delivered by Darling J., who noted that there was the gravest suspicion surrounding the circumstances in which the appellant had received the goods surreptitiously in the middle of the night. On this issue, the view of the court was as follows (on page 2):
9. In Noon v. Smith  3 All E.R. 895, the appellant was stopped by a police constable who noted him to be carrying a raincoat wrapped around a cushion. When asked where he got the raincoat, he replied “it’s my mother’s” and when it was pointed out to him that it was a man’s raincoat he said “so what, why can’t my mother wear a man’s raincoat?”. He also said that the cushion belonged to his mother. Whilst this conversation was taking place, two tea towels, one of which still bore a price tag, fell to the ground from under the appellant’s coat and when the Constable asked him where they had come from he replied “you’ve just found them on the floor.” This encounter took place at half past midnight.
10. At the conclusion of that evidence, it was submitted on behalf of the appellant that there was no case for him to answer as the burden of proof lay on the prosecution and the prosecution had not proved that the goods mentioned in the charge were stolen or that the appellant stole them. The appellant did not call any evidence and was duly convicted of stealing a raincoat, a cushion and two tea towels, the property of some person or persons unknown.
11. The Magistrate stated a case for the opinion of the Queen’s Bench Division of the High Court, which considered that there was ample evidence which would justify the conclusion reached by the Magistrate. In delivering the judgment of the court, Ashworth J. said (at p. 897):
For my part I have not the slightest doubt that there was ample material before the magistrate which would justify that conclusion.”
These authorities are summed up in the following passage in Archbold on Criminal Pleading Evidence and Practice (1997) (at para. 21.295):
‘Where an accused, upon being questioned by the police about certain goods, admits that he purchased them and that at the same time he believed them to have been stolen, such an admission, in the absence of any other evidence, is not sufficient to permit an inference by the jury that the goods were stolen goods: R v. Porter  Crim. L.R. 58, R v. Marshall  Crim. L.R. 106…
The general evidential principle upon which these decisions are based is that an accused person’s admissions are only evidence against him where it appears that he had personal knowledge of the facts admitted: Surujpaul v. R, 42 Cr. App. R. 266 P.C.; Comptroller of Customs v. Western Electric Ltd  AC 367, P.C.’ ”
17. Turning to the facts of the instant case, in order to sustain a conviction under s. 18 of the 2001 Act, the prosecution must establish four essential ingredients of the offence. It must establish first that the accused was in possession of property, second that the property was stolen, third that he or she had no lawful authority or excuse for possessing the property and fourth that he or she knew that the property was stolen or was reckless as to whether it was stolen. As the authorities discussed above demonstrate, it is clearly insufficient to establish the fourth element only in the absence of the second. Thus, as Fennelly J. pointed out in McHugh, the accused’s erroneous belief that the property is stolen cannot constitute an offence.
18. In the present case, if the only evidence against the defendant was that he had reservations as to whether or not the bicycle was stolen, that would not be a sound basis for sustaining a conviction. Without more, it would not amount to satisfactory proof beyond a reasonable doubt that the bicycle was stolen.
19. However, it seems to me that the evidence in this case goes significantly further. When challenged, the defendant gave mutually contradictory accounts of his possession of the bicycle, the latter of which was clearly highly suspicious i.e. that he had purchased the bicycle from an unknown youth for €30. In addition to that, there was objective evidence that the bicycle was highly likely to have been stolen at some point having regard to the fact that the identification markings on it had been deliberately obliterated.
20. In my view, there was more than ample evidence of a circumstantial nature before the District Court which could justify any reasonable person in coming to the conclusion that the property in question was in fact stolen. To borrow the words of O’Flaherty J., that fact does not have to be proved to a mathematical certainty and therefore there is no requirement for “irrefutable” evidence as suggested by the first question. The standard of proof is beyond a reasonable doubt, not beyond a shadow of a doubt.
21. Accordingly, I propose to answer the questions posed by the District Court as follows: