THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.142/16
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
JUDGMENT of the Court delivered on the 20th day of March 2017 by Mr. Justice Birmingham
1. On the 29th April, 2016, the appellant was convicted in the Dublin Circuit Court of the offence of possession of stolen property, a caravan, contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001. He was sentenced to a term of three years imprisonment and has now appealed against his conviction and the severity of the sentence. This judgment deals with the conviction aspect only.
2. The background facts are that a number of caravans were stolen in Holland on the 24th May, 2012. The Circuit Court heard evidence from Mr. Bernardus Velthuis by video link, that he was alerted by staff members to the fact that a break in had occurred at his business premises and on investigation it emerged that three new caravans had been stolen. This was reported to the Dutch police and they commenced an investigation. The prosecution case at trial was that included among the three caravans taken was the caravan at the centre of the present proceedings.
3. On the 18th July, 2012, gardaí conducted a search of a halting site at Cloverhill Road and there, at Bay 14, located a caravan. The VIN (Vehicle Identification Number) had been altered by the changing of the second last digit from a 9 to an 8. The alteration was described as “obvious”. The caravan was seized on that date by gardaí. By reference to the identification/registration number, which appears at two locations on the caravan, it was established that the caravan at Bay 14 was one of the three caravans stolen in May 2012, in the Netherlands.
4. Subsequently the appellant attended voluntarily for interview at Ronanstown garda station on the 31st August, 2012. He indicated that he had purchased the caravan a month and a half prior to its seizure from a person that he named as Patrick McDonagh and had done so for €14,000, paid in cash. He received no paperwork with the caravan at the time, but there was an assurance from Mr. McDonagh that it would be sent on to him. However, Mr. McDonagh had “gone back to England”. The appellant indicated that he felt that the value of the caravan new was €19,700.
5. A significant portion of the trial was devoted to a voir dire concerning the admissibility of the evidence obtained in the course of the search. Indeed really the main issue at trial was the validity of the search warrant which authorised gardaí to carry out the search. It is now one of the two points that are raised on this appeal. The other relates to criticisms of the judge in respect of his charge and certain other remarks made by him to the jury.
The search
6. The evidence on this issue was that in April, 2012 Garda Inspector O’Malley directed Sergeant Dempsey to follow up on information received from a Covert Human Intelligence Source (CHIS) that caravans stolen in mainland Europe were to be found at St. Oliver’s Park, Cloverhill Road. It seems the CHIS also provided the family name of the party alleged to be keeping the caravan. Sergeant Dempsey conducted some inquiries of his own, establishing who resided at this site and also establishing that there were caravans there which by appearance were mainland European as distinct from British or Irish. On the 13th July, 2012, he applied for a warrant to Judge Halpin in the District Court in Blanchardstown. Questions were put by the judge to which the Garda Sergeant responded and a warrant issued.
7. On the morning of the 18th July, 2012, Sergeant Dempsey with others went to the site, knocked on the door of the caravan and when it was opened produced the warrant to the appellant. The caravan was subsequently seized and towed away and it was later confirmed that it had been stolen in Holland.
8. The challenge to the warrant seems to have raised the following issues.
(i) Sergeant Dempsey, the applicant for the warrant, did not personally know the confidential informant. The submissions refer to the notion of “dúirt bean liom, go ndúirt bean lei”.
(ii) The judge in the District Court was not informed that the caravan in question was a family home.
(iii) No evidence was adduced before the judge of the District Court that theft was an offence in the Netherlands and that if it was an offence there, that the penalty was five years imprisonment or higher.
(iv) That the definition of “place” as set out by s. 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001 included a tent or caravan and that therefore because a caravan was a place, it could not be a “thing”. So while the search of the place was authorised, there was no authorisation to seize a caravan it not falling within the definition of a thing capable of seizure under a warrant pursuant to s. 48.
9. The implicit criticism of the CHIS system is without merit. Indeed the evidence before the Court indicated that the fact that the informant and his information had got into the CHIS system was indicative of a degree of quality control. In the Court’s view the information put before the judge, both as to information within the CHIS system and the further inquiries that the sergeant had carried out himself, which went some distance to support the information that was coming through, meant that the judge was entitled to take the view that there were reasonable grounds for suspecting that a stolen caravan was to be found at the halting site. The fact that the caravan was, it appears, being lived in did not render the caravan immune from seizure and the Court does not see substance in the complaint that the judge was not told explicitly that the caravan was a dwelling, though in any event this may well have been apparent to him. The suggestion that a caravan is not a thing, and so not something capable of being seized is risible.
10. The Court is not persuaded that expert evidence was required to establish that as a matter of law theft was an offence in the Netherlands. There was in fact some evidence touching on this topic from the caravan owner, albeit not expert evidence. That theft is a crime is a universal truth. That theft is a crime in the Netherlands is so widely known that it did not require formal evidence by way of evidence from a Dutch lawyer whether tendered by way of a document pursuant to s. 60 of the 2001 Act or otherwise.
11. There remains for consideration the argument that the search was not authorised by the warrant as no information was put before the District Court, and indeed for that matter before the Circuit Court, that the offence carried a penalty of five years or more in the Netherlands. In this Court’s view this is the only point of any real substance in relation to the validity of the warrant. The Court will turn to that issue presently. However before doing so, the Court will deal with the criticisms of the trial judge.
The judge’s charge
12. The appellant is critical of aspects of the judge’s charge. He says that the judge trespassed upon the function of the jury in a most fundamental way to the extent of indicating what facts the evidence had established. On behalf of the appellant it is submitted that the charge has to be deemed objectively unfair in the mind of a reasonable bystander and that it calls into question the fairness of the trial with a knock on effect upon the public perception of the administration of justice.
13. The appellant says that the concerns that exist are heightened by remarks made by the judge during the course of the sentencing phase of the trial where the judge made reference to another trial that had been listed before him which had its origin at the same location and involved an accused with the same surname. Reading the charge as a whole, which is a fairly brief one, the Court is not persuaded that the trial judge went beyond the limits of legitimate comment. It seems that the judge may have been prompted to comment more than he might otherwise have done by certain observations made by defence counsel in the course of his closing speech. Specifically the judge took issue with defence counsel who had told the jury that the only evidence that they had in the area of the case that was concerned with the state of mind of the caravan purchaser was what his client had said when interviewed by the gardaí, as well as a comment by counsel at another stage that there was no evidence that theft is an offence in Holland. While some of the comments made by the judge may have been unwelcome from the defence perspective the Court is not persuaded that the charge renders the trial unsatisfactory. The remarks made at the sentencing stage, while they could have been left unsaid, do not render the trial unsatisfactory.
Penalty for the offence in the Netherlands
14. The Court turns now to the question raised about the absence of evidence that this offence carried a penalty of five years or more in the Netherlands.
15. The relevant statutory provisions are to be found in s. 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001:-
“48(1) This section applies to an offence under any provision of this Act for which a person of full age and capacity and not previously convicted may be punished by imprisonment for a term of five years or by a more severe penalty and to an attempt to commit any such offence.
(2) A judge of the District Court, on hearing evidence on oath given by a member of the Garda Síochána, may, if he or she is satisfied that there are reasonable grounds for suspecting that evidence of, or relating to the commission of, an offence to which this section applies is to be found in any place, issue a warrant for the search of that place and any persons found therein.
(3) A warrant under this section shall be expressed and shall operate to authorise a named member of the Garda Síochána, alone or accompanied by such other persons as may be necessary –
(a) to enter, within 7 days from the date of issuing of the warrant (if necessary by the use of reasonable force), the place named in the warrant,
(b) to search it and any persons found there,
(c) to examine, seize and retain any thing found there, or in the possession of a person present there at the time of the search, which the member reasonably believes to be evidence of or relating to the commission of an offence to which this section applies, and
(d) to take any other steps which may appear to the member to be necessary for preserving any such thing and preventing interference with it.”
16. Section 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001, so far as material provides:-
“18(1) A person who, without lawful authority or excuse, possesses stolen property (otherwise than in the course of the stealing), knowing that the property was stolen or being reckless as to whether it was stolen, is guilty of an offence.
. . .
(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.”
17. Section 16(1):-
“16(1) In this Part “principal offender”, for the purposes of ss. 17 and 18, means the person who has stolen or otherwise unlawfully obtained the property alleged to have been handled or possessed, and cognate words shall be construed accordingly.”
18. “Stolen property” is defined at s. 2(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001 as follows:-
‘ “stolen property” includes property which has been unlawfully obtained otherwise than by stealing, and cognate words shall be construed accordingly.’
19. Section 20(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 provides as follows:-
Submissions
20. On behalf of the appellant it is contended that the entitlement of a judge of the District Court to issue a warrant is limited to cases involving the investigation of offences in respect of which a person might be punished by imprisonment for a term of 5 years imprisonment. That provision, it is urged, has to be seen in the context of s. 18 which provides that a person convicted of possession of stolen property is liable to a term of 5 years’ imprisonment but not to a term greater than is applicable to the principle offender. It is said that from this, it follows that even if the Court was prepared to proceed on the basis that theft was an offence in the Netherlands, that a warrant could not be issued unless the judge to whom the application was made had been satisfied that the thief in the Netherlands, was liable to a sentence of 5 years imprisonment or more. It is said that no such information was put before the District Court.
21. On the other hand the respondent says that the focus on applicable penalties in the Netherlands was misconceived. The information that was available to the gardaí when they sought the warrant was that caravans had been stolen in the Netherlands or Germany. Depending on which side of the German/Dutch border a theft occurred different penalties would apply. Again, depending on the precise manner in which the caravan was taken, different penalties might apply just as in Ireland different penalties might apply depending on whether the taking of the caravan involved a theft simpliciter, a burglary, an aggravated burglary, a robbery and so-on.
Conclusion
22. The point is an interesting one. Having given the matter careful consideration the Court is of the view that the judge of the District Court had jurisdiction to issue the warrant – the offence of possession of stolen property is one for which a person of full age and capacity and not previously convicted may be punished by imprisonment for a term of 5 years. The stipulation that the possessor is not liable to a higher fine or longer term of imprisonment than the principle offender is one which is relevant at sentencing if that stage is reached. At that sentence stage information ought to be put before the Court in relation to the range of penalties applicable in the country where the theft occurred. However, at the stage at which the warrant was sought, it was being sought in respect of a suspected offence for which a person of full age and capacity, not previously convicted was liable to a sentence of 5 years imprisonment. That being so the warrant was validly issued and so the Court rejects this ground of appeal. As the Court has earlier rejected the other grounds of appeal relied on, the Court will dismiss the appeal against conviction.
