THE COURT OF CRIMINAL APPEAL [Appeal No: 265/12]
Clarke J.
Moriarty J.
Herbert J.
The People (at the suit of the Director of Public Prosecutions) Prosecutor/Respondent Accused/Appellant
Judgment of the Court delivered by Mr. Justice Clarke on the 27th November, 2014.
1. Introduction
1.1 This appeal centres on the ability of a jury to bring in a verdict of guilty under the alternative verdict provision contained in s. 9(4) of the Criminal Law Act, 1997. Leaving aside the legal form of any charge brought against the accused/appellant ("Mr. Cunningham"), the central substance of the allegation with which he was faced at his criminal trial was that he was involved by "common design" in the armed robbery of a consignment of cigarettes. Mr. Cunningham faced, at that trial, five counts being one of robbery, two of false imprisonment, one of possession of a firearm and one of unauthorised use of a mechanically propelled vehicle. Mr. Cunningham was found not guilty on one of the counts of false imprisonment. The jury disagreed on the second count of false imprisonment and also on the firearms offence. The jury convicted Mr. Cunningham on the road traffic offence and, as an alternative to the count of robbery with which he was charged, found him guilty of theft.
1.2 In general terms, although it will be necessary to go into the detail of the case made on Mr. Cunningham's behalf shortly, it can be said that the principal focus of his appeal to this Court is based on a contention that the trial judge was incorrect in charging the jury that they could, in all the circumstances of the case, bring in an alternative verdict of guilty in respect of theft. In addition, it is said that, in the particular circumstances of the issues of fact which arose at his trial, the contention that it might be open to find him guilty of theft necessarily gave rise to a situation where he was in danger of being convicted of an offence which was, it is said, too imprecise to allow for a proper conviction. While the appeal brought on behalf of Mr. Cunningham was against conviction and sentence, the question of sentence was left over until the appeal against conviction was determined. This judgment, therefore, relates only to the appeal against conviction.
1.3 In order to better understand the precise legal issues which arose on this appeal, it is necessary to set out the sequence of events which led to the charge to the jury with which Mr. Cunningham takes issue.
2. The Sequence of Events at Trial
2.1 During the course of his trial, it was alleged that Mr. Cunningham was part of a joint enterprise or common design in an armed robbery of a consignment of cigarettes. The robbery was alleged to have been committed against Mr. Joseph O’Toole and Mr. Edward Postol, a driver and a driver’s assistant working for Bond Delivery, a company who deliver large consignments of cigarettes to retailers. Evidence was adduced that, while those men were on their way to deliver a consignment of cigarettes, they stopped at a petrol station where they were approached by a man who had what appeared to be a firearm. That man was said to have forced himself into the delivery van containing the tobacco. Mr. O’Toole gave evidence that he was ordered to drive the van to the back of a public house. Mr. Postol was said to have been tied up with cable ties and evidence was given that Mr. O’Toole was ordered to go to the back of the van. In further evidence, Mr. O’Toole told that court that he was informed by the man with the firearm that there was another person around the side of the van. Mr. O’Toole stated in evidence that he observed that a white Transit van had reversed with its back doors facing the delivery van and that he was ordered to load the Transit van with the tobacco. Mr. O’Toole gave evidence that he was then tied up and locked, with Mr. Postol, in the back of the van that had contained the tobacco. The Court will turn to the alleged role of Mr. Cunningham shortly.
2.2 At the trial, counsel for Mr. Cunningham put it to Mr. O’Toole that no robbery and no false imprisonment had taken place, and that Mr. O’Toole was in fact a participant in a scheme to steal the tobacco products with the individuals who were present in the vicinity of the public house. Counsel for Mr. Cunningham also put it to Mr. O’Toole that he did not pull into the petrol station at all, and alleged that this part of his evidence was “a charade”. Further, counsel alleged that Mr. O’Toole had driven straight to the public house “as part of some plan that was in being, and it was never intended to reach their ultimate destination that day, they were going to be stolen immediately”. Counsel for Mr. Cunningham continued on this trajectory during his cross examination of Mr. Postol, putting it to the prosecution witness that he was making up his account of events, and suggesting “that this is all a cover story for some prearranged plan whereby Bond Delivery were going to ….have their property stolen and this is just a cover story?”
2.3 Hugo Gordan, Operations Manager at Bond Delivery, stated in evidence that he did not give anybody permission to interfere with or take the tobacco products. Additionally, the statement of Paul Maguire, Transport Supervisor at Bond Delivery, was, by agreement, read to the jury. He stated that the “did not give anyone permission to take cigarettes from any of the Bond delivery vans that morning other than the customers specified on the manifests given to the drivers”.
2.4 Evidence was given that Mr. Cunningham was observed by Gardaí leaving Enfield by car on the morning of the alleged offence, and was subsequently observed at the petrol station and driving in the direction of the public house. A white Transit van was also observed in the vicinity. Following the commission of the alleged offence, evidence was given that Mr. Cunningham was observed by Gardaí driving his car in convoy with the white Transit van in a number of locations. Closed circuit television footage was said to confirm the location of the vehicles. The vehicles were stopped and searched by Gardaí and the tobacco products were found in the Transit van. Mr. Cunningham was arrested under s. 30 of the Offences Against the State Act 1939 (as amended) and was found to be in possession of €750 in cash. Phone record evidence presented during the trial suggested numerous connections were made on the morning of the alleged offences between one of the phones found in the possession of Mr. Cunningham when he was arrested and one of the three phones found in the possession of a Mr. Aaron O’Driscoll, the driver of the white Transit van.
2.5 During the trial, Mr. Cunningham testified that he had arranged to meet a man (“Mr. Ryan”) at a lighting shop in Blanchardstown on the morning of the alleged offence in order to transmit plans for the development of land to a Mr. Jim Farrell, who was described as an auctioneer. Mr. Cunningham had denied any knowledge of Mr. O’Driscoll, the driver of the white Transit van, during his interviews with the Gardaí. However, at the trial he testified that he had spoken to a Mr. Eamon Kavanagh the evening before the alleged offence and had mentioned that he would be in Blanchardstown the following morning. He gave evidence that Mr. Kavanagh had called him the next morning to say that one of his drivers (a Mr. O’Driscoll) was lost and sought Mr. Cunningham’s help in directing the driver. Mr. Cunningham stated in evidence that Mr. Kavanagh told him he would pass his phone number on to his driver. However, as noted by the prosecution, the phone evidence indicated that Mr. O’Driscoll contacted Mr. Cunningham on a different phone, which had been first topped up with credit the day before the alleged offence.
2.6 Mr. Cunningham was found not guilty of the false imprisonment of Mr. O’Toole (count 2). The jury disagreed on the charge of robbery (count 1), the false imprisonment of Mr. Postol (count 3) and the firearm charge (count 4). The trial judge gave a direction to the jury regarding the possibility of conviction in relation to theft pursuant to s. 4 of the Criminal Law (Theft and Fraud Offences) Act 2001 (“the 2001 Act”) as an alternative verdict to the charge of robbery. The trial judge stated, in his direction to the jury:-
“You could find that one was involved, in which case if you do so, and the other wasn't, you could still bring in a verdict of robbery of the one who you say is not involved. If neither were involved, then robbery must fall by the way side— sorry, if neither— if both were involved, then robbery must fall by the way side, which also brings into question the question of whether or not there was a firearm at the scene at all. And if you find that the two, that's Mr O'Toole and Mr Postol, are in some way involved, either individually or as a pair, then it would seem to me that it would certainly query the veracity of the firearm aspect of things. But if either or - if either of them was not involved, then that may well stay alive, that's for you to determine. And, equally, the same would apply in relation to the use of the van. But if - if you find that there was no robbery, it is still open to you to bring in a verdict, remember we defined what robbery was, robbery is stealing with violence, or threat of violence. If there is no violence or no threat of violence, it is still open to you to bring in a verdict of stealing, if that is what the evidence proves.”
2.7 The trial judge was of the opinion that s. 9(4) of the 1997 Act compelled him to direct the jury in relation to the possibility of an alternative verdict of theft. The trial judge stated to counsel, on day 13 of the trial:-
“But that’s a matter of law though… there’s no way that we can evade the provisions of the statute. The statute is clear where on a trial on indictment for any offence ‘the evidence does not warrant a conviction for the offence specifically charged in the indictment but the allegations in the indictment amount to or include expressly or by implication an allegation of another offence that person may be found guilty of that other offence.’ Now, this of course raises the old issue of what does ‘may’ mean because Mr. Justice McCarthy said that may means must…it is what I am constrained by statute to do.”
2.8 The jury subsequently found Mr. Cunningham guilty of theft. The trial judge stated, upon receipt of the issue paper:-
“In the box recording verdict it says "disagree", and underneath the box is written the single word "theft" and an arrow "guilty", which was the alternative which was given. I don't expect juries to say theft contrary to x y and z of a, b and c, or anything of that nature. They have recorded in accordance with the instructions which they were given.”
2.9 A charge of theft under s. 4 of the 2001 Act brought against Mr. Cunningham had previously been struck out in the District Court at the request of the Prosecutor/Respondent ("the D.P.P."). This was substituted for a charge of robbery contrary to s. 14 of the 2001 Act when Mr. Cunningham was returned for trial in the Circuit Court.
3. The Grounds of Appeal and the Response of the Director
3.1 The grounds of appeal can be broadly arranged into three categories. First, counsel for Mr. Cunningham contended that a conviction for theft simpliciter is bad “where that conviction concerns theft from an unknown entity and with no details given as to what, where or when that [offence] allegedly occurred”, particularly in circumstances where Mr. Cunningham was being tried for robbery, and all the prosecution evidence and Mr. Cunningham’s defence was directed to the allegation that he had committed the offence of robbery from Mr. O’Toole and Mr. Postol in circumstances where they were described as the “owners” of the goods for the purposes of the legislative provision invoked by the prosecution. Counsel for Mr. Cunningham further complained that the theft conviction lacked any specifics as to what exactly was stolen and from whom it was stolen.
3.2 On this point, counsel for the D.P.P. submitted that there would be no purpose for a provision which allows alternative verdicts if such a provision required a very specific drafting of a detailed count of the possible alternative crime to be included in the issue paper or indictment. The D.P.P. further argued that the nature of the alternative verdict is that it relates to what was described as “a "lesser" offence contained within the ingredients of the count drafted on the indictment”.
3.3 Secondly, counsel for Mr. Cunningham argued that Mr. Cunningham should not have been convicted of the offence of theft by a jury in the Circuit Court under s. 9(4) of the Criminal Law Act 1997 ("the 1997 Act") in circumstances where a charge of theft had previously been “struck out” in the District Court at the request of the D.P.P. and the charge substituted for one of robbery contrary to s.14 of the 2001 Act.
3.4 In response to these submissions, counsel for the D.P.P. submitted that the “striking out” of the charge of theft could not be said to relate to the merits of the substantive case in any way and could not, it was said therefore, cause unfairness or prejudice. Counsel for the D.P.P. further asserted that, if the fact that the theft charge was struck out in the District Court was decisive of the issue of the theft, then the robbery charge would be fatally flawed as one of its constituent ingredients would have already being decisively determined. Further, counsel for the D.P.P. argued that, as the prosecution is entitled pursuant to s. 4 of the Criminal Procedure Act, 1967 (as inserted by Criminal Justice Act, 1999) to amend, substitute or add counts to an indictment where the accused has been sent forward for trial, the striking out of the theft charge in the District Court is irrelevant.
3.5 Third, counsel for Mr. Cunningham submitted that the learned trial judge was either incorrect in his finding that he was required to permit the jury to come to an alternative verdict pursuant to s. 9(4) of the 1997 Act, or, if the trial judge was correct in his interpretation of that section, that the section in question is unconstitutional. Mr. Cunningham initiated separate proceedings in the High Court challenging the constitutionality of this section.
3.6 Counsel for the D.P.P. argued that the trial judge did not err in relation to charging the jury in relation to s. 9(4) of the 1997 Act with regard to the alternative verdict of theft, and that ultimately it was a matter for the jury to decide whether Mr. Cunningham was guilty of the alternative offence. In this regard, counsel for the D.P.P. drew attention to the specific charge given by the trial judge and urged that the charge did not in any way bind the jury or usurp their function.
4. The Issues
4.1 In order to understand the precise issues which arose on this appeal it is necessary to look briefly at the background to those issues arising from the trial itself. As will be seen from the brief account of the submissions made, the issues before the Court were all concerned with different aspects of the circumstances in which the trial judge directed the jury that they could bring in an alternative verdict of guilty in respect of an offence of theft. As will be seen from the passage from the direction of the trial judge already cited, the context of the trial judge's direction in that regard was very closely based on the case made on behalf of Mr. Cunningham at his trial. As the trial judge pointed out there were differing questions of fact squarely placed before the jury concerning the alleged involvement of both Mr. O'Toole and Mr. Postol in the events which lay behind the alleged offences. It is clear from that passage from the direction of the trial judge that the jury were invited to consider the issue raised by the defence as to whether Mr. O'Toole and/or Mr. Postol were involved in some form of prearranged attempt to ensure that the relevant cigarette consignment did not reach its true destination. As the trial judge pointed out to the jury, if the jury came to the view that both were involved in such a scheme, then there could be no question of the robbery charge being sustained for the count of robbery that was brought against Mr. Cunningham involved an accusation of robbery directed against Mr. O'Toole and Mr. Postol. If both of them were involved in a scheme to ensure that the cigarettes did not arrive at their proper destination, then there could have been no question of robbery from them.
4.2 However, it must be recalled that Mr. Cunningham's case was not just one based on an allegation that Mr. O'Toole and Mr. Postol were themselves up to no good. His case was based on an assertion that he was entirely innocent of any involvement in the relevant events and that his connection with the scene of the crime and its aftermath was entirely coincidental arising out of his seeking to give assistance to Mr. O'Driscoll. Clearly, if the jury or a sufficient number of them had accepted that account (or, indeed, had taken the view that there was sufficient credibility in that account to conclude that Mr. Cunningham's involvement could not have been established beyond reasonable doubt), then Mr. Cunningham would have to have been acquitted of all offences connected with the cigarettes or at a minimum there would have to have been at least a disagreement in respect of all such offences had a sufficient number of members of the jury remained unpersuaded as to Mr. Cunningham's criminal involvement beyond reasonable doubt.
4.3 It is against that background that the question of the trial judge's direction to the jury to the effect that they could bring in an alternative verdict of guilty of theft needs to be viewed. In that context three issues arise:-
(a) Was the trial judge correct to take the view that he was obliged to allow the offence of theft go to the jury;
(b) Was, in the circumstances, the offence of theft which was left to the jury too imprecise; and
(c) Did the fact that an offence of theft had been struck out and replaced with one of robbery when the case was before the District Court in any way prevent the trial judge from directing the jury that they could bring in an alternative verdict of guilty of theft.
4.4 As each of those issues derive from the possibility, permitted by s. 9(4) of the Criminal Law Act 1997, to bring in an alternative verdict it is necessary to start by analysing that provision.
5. The Alternative Verdict Provision and the Relevant Offences
5.1 Section 9(4) of the 1997 Act provides:-
"(4) Where, on a person's trial on indictment for any offence except treason, murder to which section 3 of the Criminal Justice Act, 1990 , applies or murder, the evidence does not warrant a conviction for the offence specifically charged in the indictment, but the allegations in the indictment amount to or includes (expressly or by implication) an allegation of another offence, that person may be found guilty of that other offence or of an offence of which he or she could be found guilty on an indictment specifically charging that other offence."
5.2 The statutory requirements for an alternative verdict in accordance with that section are, first, that the relevant person is being tried on indictment for an offence other than those excluded by the section. Mr. Cunningham was being tried on indictment for the offence of robbery and, thus, that part of the requirement set out in the section is met. Second, it is necessary that the evidence not warrant conviction for the offence charged. Clearly, by failing to convict on the offence of robbery, the jury were so satisfied. However, thirdly, and most importantly so far as this case is concerned, it is necessary that the "allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence".
5.3 Thus, in order for the jurisdiction to convict of an alternative offence to arise, the alternative offence must meet that test. The alternative offence must be one which can properly be said to be included or present, expressly or by implication, within allegations contained in the indictment.
5.4 Against that background it is necessary to look at the specific offences involved in this case and the allegations made in the indictment.
5.5 The offence of robbery is set out in s. 14 of the 2001 Act in the following terms:-
5.6 Section 4 of the 2001 Act contains the offence of theft:-
“(1) Subject to section 5, a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.
…
(5) In this section—
“appropriates”, in relation to property, means usurps or adversely interferes with the proprietary rights of the owner of the property;
“depriving” means temporarily or permanently depriving."
5.7 Count 1 of the indictment, which relates to “robbery contrary to section 14 of the Criminal Justice (Theft and Fraud) Act, 2001”, states, in the particulars of that offence:-
“Francis Cunningham, on the 14th day of March , 2007, at Blanchardstown, in the County of the City of Dublin, did rob Joseph O’Toole and Edward Postol of an assortment of cigarettes and tobacco products to the value of Euro 314,916.42.”
5.8 It is in that context that the trial judge's direction to the jury to the effect that they could convict of theft must be viewed.
5.9 That question must also be seen in the context of the way in which the trial judge directed the jury. It must be recalled that the trial judge drew attention to the fact that the offence of robbery necessarily carried with it either a finding of violence or a threat of violence. The trial judge directed the jury to the effect that, if there was no violence or threat of violence, it was still open to them to bring in a verdict of stealing "if that is what the evidence proves". Clearly that aspect of the direction needs to be seen in the context of the case as made at trial on behalf of Mr. Cunningham which centred on the suggestion that Mr. O'Toole and Mr. Postol were complicit in the events on the occasion in question. There were at least three possibilities. First, the jury might have accepted the evidence of Mr. O'Toole and Mr. Postol and rejected the evidence of Mr. Cunningham and thus accepted that there was a robbery in which Mr. Cunningham played a part. The jury obviously did not come to that conclusion for they did not find Mr. Cunningham guilty of robbery.
5.10 Second, the jury might have concluded that Mr. Cunningham's explanation for his presence on the occasion in question as being entirely innocent was either accepted or created a sufficient doubt to prevent it being established to the criminal standard that Mr. Cunningham was involved with whatever wrongdoing occurred. In such an eventuality Mr. Cunningham would have to have been entitled to be acquitted in respect of all the offences concerning the incidents relating to the cigarettes. It might, of course, in respect of some or all of those matters, have been the case that some but not a sufficient number of the jury were convinced beyond reasonable doubt thus leading to a disagreement.
5.11 However, there remained a third possibility in which the jury were persuaded beyond reasonable doubt that Mr. Cunningham was involved in the unlawful enterprise but also were persuaded that Mr. O'Toole and Mr. Postol were not innocent victims but were complicit. In those circumstances it is possible to see how a jury might have come to the view that Mr. Cunningham was involved in stealing or theft but, because of the complicity of Mr. O'Toole and Mr. Postol, had not used violence or a threat of violence and, thus, could not be convicted of robbery.
5.12 It is in that context that the specific issues which arose on this appeal need to be addressed. I, therefore, turn to those issues and deal first with the issue which arises from the fact that a charge of theft was struck out, at the D.P.P.'s application, when the case against Mr. Cunningham was before the District Court.
6. The Effect of a Charge of Theft being struck out before the District Court
6.1 The facts relevant to this point are not in dispute. When originally charged before the District Court it was alleged against Mr. Cunningham that he was guilty of theft contrary to s. 4 of the 2001 Act. When the matter was progressing before the District Court that charge was struck out on the application of the D.P.P. but a further charge of robbery was included in the matters on which Mr. Cunningham was sent forward to the Circuit Court for trial on indictment. The issue which arises is as to whether the fact of that alteration, in itself, could place any barrier to a jury being properly directed that they might find Mr. Cunningham guilty on an alternative verdict under the provisions of s. 9(4) of the 1997 Act.
6.2 First, it needs to be noted that there is nothing in the text of the 1997 Act which suggests any such limitation on the scope of the entitlement of a jury to bring in an alternative verdict even if a charge in respect of the alternative offence had earlier been dropped. Either the offence in respect of which it is suggested that an alternative verdict can be brought in comes within the terms of s. 9(4) or it does not. If it does then there is nothing in the 1997 Act which suggests that the jury cannot properly bring in an alternative verdict even if a charge in respect of the alternative offence had earlier been dropped. Such an analysis also conforms, in the Court's view, with common sense. There are many circumstances in which the same set of events can, potentially, give rise to a series of different offences depending on the presence or absence of one or more ingredients. The presence of violence or a threat of violence is a necessary ingredient to the offence of robbery even though the same circumstances (but absent such violence or threat of violence) can give rise to the offence of theft. Other examples could be quoted.
6.3 In those circumstances it is easy to see how the prosecuting authorities may, if in the course of the proceedings leading up to a trial they come to the view that there is sufficient evidence to establish to the criminal standard the additional element necessary to secure a conviction of a more serious offence, decide to drop the less serious offence and replace it with the more serious. The Court can see no reason why, in such circumstances, if a jury is not persuaded to the criminal standard that the additional ingredient required to establish the more serious offence is present, s. 9(4) of the 1997 Act does not, at least at the level of general principle, entitle the jury to bring in a conviction for the other lesser offence.
6.4 This is not the same sort of situation as might apply where an entirely different offence, based on other facts, is dropped at the District Court stage. Such a situation would clearly not come within section 9(4). That section only applies where, as the express terms of the provision make clear, the allegations in the indictment amount to or include an allegation of the other or alternative offence. In those circumstances the dropping of a specific charge of the "included" offence cannot be a barrier to the use of s. 9(4) to convict of that offence if the additional elements required to establish a more serious offence are not demonstrated to the criminal standard and to the satisfaction of the jury at the trial.
6.5 In those circumstances the Court is not satisfied that the fact that a charge of theft was dropped at the District Court stage can, of itself, provide any reason why a jury could not be directed that they could bring in an alternative verdict of theft if not persuaded that "the violence or threat of violence" element of the offence of robbery was made out at the trial.
7. Is there sufficient particularity?
7.1 As noted earlier the issue under this heading stems from the fact that a person, who is convicted under the alternative verdict provisions of s. 9(4) of the 1997 Act, will not have faced at the trial any indictment which specified a count by reference to the offence of which that person was ultimately convicted. However, it seems to the Court that such a situation necessarily follows from the provisions of s. 9(4) itself. That section expressly contemplates a person being convicted of an offence in respect of which they did not stand charged at their trial. The fact that there were no particulars of the "alternative" offence before the Court does not, in those circumstances, matter as such. As counsel for the D.P.P. argued, correctly in the Court's view, s. 9(4) would be meaningless if it were to be impliedly necessary that particulars of the "alternative" offence actually be before the Court.
7.2 However, that is not an end of the matter. It is, in order that the conditions set out in the section be met, necessary that the "alternative" offence be included in the indictment or that the particulars of the offence contained in the indictment amount to the "alternative" offence. This requirement seems to the Court to provide an adequate safeguard against any unfairness in the operation of s. 9(4) even though no particulars of the "alternative" offence may be supplied. If the connection between the offence specified in the indictment and the proposed alternative offence are not sufficiently close so as to enable it to be properly said that the allegations in the indictment "amount to or include" the allegations which might justify conviction for the alternative offence, then the section cannot apply. In those circumstances it is necessary, in order for the section to have application, that it can properly be said that the alterative offence meets that test. If it does then the accused must be taken to have fully understood the offence of which he stood indicted and will not, therefore, be at any unfair disadvantage if he is convicted of some other offence which comes squarely within the four walls of the offence of which he stood indicted even though the alternative offence may, for example, be capable of being established in the absence of some element of the indicted offence. In principle, therefore, the Court can see no difficulty with someone who stands indicted for the offence of robbery being convicted of the offence of theft because the jury is not persuaded to the criminal standard that there was violence or a threat of violence.
7.3 However, the real issue which arises in this case, it seems to the Court, is as to whether it can truly be said that the offence of theft of which Mr. Cunningham was convicted did come within the four walls of the indictment for robbery on which he went to trial or, perhaps, whether there is sufficient clarity about that question to regard his conviction for theft as being safe. That issue arises in the particular context of the fact that the allegation against him on the indictment in respect of robbery related to a robbery from Mr. O'Toole and Mr. Postol. Even if the jury were satisfied that Mr. O'Toole, Mr. Postol and Mr. Cunningham were all engaged in a common enterprise, could it be said that Mr. Cunningham was guilty of theft from those two gentlemen given their complicity. If not, and if the theft must have been from some other body such as the employer of Mr. O'Toole and Mr. Postol, then can it properly be said that such an allegation meets the test of "amount to or include" by reference to the allegations in the indictment given the difference in personnel.
7.4 This issue is concerned with the nature of an offence involving a form of stealing where property is in the possession of someone other than its owner but where that possession is for a particular purpose such as, on the facts of this case, delivery. In such circumstances the person in possession of the relevant goods, being a bailee, normally has no general authority to deal with the goods but rather only has the authority of the owner to deliver them in accordance with the owner's instructions. In such circumstances it has long been held (see for example, R. v. Longstreeth 1 Mood. C.C. 137) that it is possible to commit a crime in relation to the relevant property by, for example, tricking the person in whose possession the goods are into wrongfully parting with that possession.
7.5 In R. v. Harding R. & R. 125, an employee whose job it was to cart goods entered into collusion with others to have both the goods and the cart taken away. It was held to be immaterial, for the purposes of the criminal law in that context, whether "the goods were considered as the property of [the bailee] or [the original owner]".
7.6 It seems to the Court to be clear from those old authorities that an offence of dishonesty in relation to property involving collusion between a person who is entrusted with the property and others could be the subject of a proper charge or indictment where the relevant offence is specified by reference either to those who were entrusted with the property or the original owner and that it was, as a matter of law, immaterial as to which was so specified.
7.7 Furthermore, it must be recalled that the definition of robbery contained in s.14 of the 2001 Act requires that there be the use of violence or a threat of violence directed towards "any person". It follows that the violence or threat of violence can be directed to a person other than the owner of the property concerned. Where it is alleged that a person has been guilty of robbery in respect of property which was in the possession of a bailee, it is likely that the ingredient of the offence involving violence or a threat of violence will amount to an accusation that the bailee was the person subject to such violence or threat. In those circumstances, and in the light of the traditional legal position identified in R. v. Harding, it is not surprising that the indictment in this case made reference to robbery in respect of Mr. O'Toole and Mr. Postol given that they were the persons against whom, on the prosecution's case, it was alleged that violence or a threat of violence had been used and given the fact that they were also clearly bailees of the property concerned. The indictment did not, therefore, necessarily imply that Mr. O'Toole and Mr. Postol were the owners of the property concerned.
7.8 It follows that it was immaterial whether the indictment in this case specified robbery from either Mr. O'Toole and Mr. Postol (being the persons to whom the property had been entrusted) or the original owner. It seems to the Court to follow that an indictment specifying one or the other would have been equally valid. Likewise, an indictment specifying one must be held to encompass the other. In those circumstances, and on the facts of this case, it seems to the Court that it was immaterial whether the original indictment referred to robbery involving Mr. O'Toole and Mr. Postol or, alternatively, the original owner.
7.9 The count of robbery, in the Court's view, therefore, encompassed the use of violence or a threat of violence against Mr. O'Toole and Mr. Postol but was unspecific as to the ownership of the property concerned subject only to the necessary implication that the property was in the lawful possession of Mr. O'Toole and Mr. Postol either as owners or as a bailee. Thus, without the accusation of violence or a threat of violence, the offence in respect of which the relevant count in the indictment was specified included within it either an allegation that Mr. O'Toole and Mr. Postol were the owners or that Mr. O'Toole and Mr. Postol were in lawful possession as bailees. The difference between those two propositions has, as has already been pointed out, been held to be legally immaterial. On that basis it seems to the Court that the offence of theft which the trial judge allowed to go to the jury was included within the indictment for the indictment itself contemplated the possibility that Mr. O'Toole and Mr. Postol were bailees only and not the actual owner.
7.10 The goods and the occasion were expressly specified in the indictment. While the offence of theft would necessarily have involved theft involving the original owner rather than from Mr. O'Toole and Mr. Postol (they being complicit), the distinction between the two is, for these purposes, immaterial.
7.11 There was, therefore, in the Court's view, no technical deficiency with the direction given by the trial judge to the jury to the effect that they could return a verdict of guilty of theft in the circumstances of this case.
7.12 Likewise, the Court is not satisfied that there was any potential unfairness or risk of an unsafe verdict. The question which was left to the jury was, on the run of the case, perfectly clear. In that part of his direction to the jury, which is to be found immediately prior to the passage where the Court allowed the issue of theft go to the jury, the trial judge made specific reference to the circumstances in which the alternative charge might arise. As the trial judge directed the jury, it was the case that, if the jury were satisfied that even one of Mr. O'Toole and Mr. Postol was not complicit and assuming that the jury did not accept Mr. Cunningham's explanation, then conviction for robbery would have been available. However, if both were complicit then there would have been no violence or threat of violence and, thus, robbery would not have been available. It was in that specific and express context that the trial judge allowed theft to go to the jury. It was, in those circumstances, clear that what was being left to the jury was an offence of theft which arose specifically in circumstances where the jury took the view that Mr. O'Toole and Mr. Postol were involved (thus excluding robbery) but were nonetheless not persuaded that there was any doubt about Mr. Cunningham's involvement as well. The alternative offence was, therefore, clear.
7.13 In those circumstances it does not seem to this Court that it is necessary to consider the question of whether a trial judge is obliged to allow a so-called lesser offence to go to the jury. The lesser offence of theft in this case is, for the reasons earlier set out, in the Court's view, included within the offence of robbery as specified in the indictment. Even if there may be circumstances where a trial judge might be required to decline to allow a lesser offence to go to the jury by reason of unfairness in all the circumstances of the case, this case is not, for the reasons again analysed, one such.
8. Conclusions
8.1 In summary the Court is, therefore, of the view that the fact that an offence of theft was included in the original charges laid before the District Court, but was dropped at that stage of the criminal process on the application of the D.P.P., does not preclude a trial judge in principle from properly directing a jury that a verdict of guilty in respect of theft is available to them under s.9(4) of the 1997 Act as an alternative to a count of robbery.
8.2 Furthermore, the Court is satisfied that, in the circumstances of this case, it was clear as to the nature and details of the offence of theft which was being left to the jury. It was also clear that the offence of theft was included within (for the purposes of s.9(4) of the 1997 Act) the offence of robbery in respect of which the indictment was laid. Likewise, there was no unfairness or potential unfairness, on the run of this case, in allowing the offence of theft to go to the jury.
8.3 In those circumstances the Court is satisfied that the trial judge was correct to allow the offence of theft to go to the jury and correctly directed the jury on the proper approach to be adopted. It does not, therefore, appear to the Court that the question of whether the trial judge has or has not got a discretion in that regard truly arises on the facts of this appeal for the approach adopted by the trial judge was, in the Court's view, the correct one in the circumstances of this case.
8.4 The Court will, therefore, dismiss Mr. Cunningham's appeal against his conviction of the alternative offence of theft. The Court will hear counsel further on whether there are any remaining aspects of this appeal which require to be heard.
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