Court of Appeal dismisses appeal against conviction for theft and dangerous driving despite judge's minor evidence misstatement.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

Record No: 192/2016

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

DANIEL CONNORS

Appellant

JUDGMENT of the Court delivered 15th May 2018 by Mr. Justice Edwards.

Introduction

1. On the 22nd and 23rd of June 2016 the appellant was convicted by the unanimous verdict of a jury at Clonmel Circuit Criminal

Court of four offences alleged to have been committed on the 2nd of July 2015. These related to: (1) criminal damage contrary to s.

2(1) of the Criminal Damage Act, 1991; (2) possession of stolen property contrary to s. 18 of the Criminal Justice (Theft and Fraud

Offence) Act 2001; and (3) and (4), respectively, two counts of dangerous driving contrary to s. 53(1) of the Road Traffic Act, 1961,

as amended.

2. A sentence of six years was imposed in respect of the criminal damage count while a sentence of two and a half years was

imposed for the count in relation to possession of stolen property, to run concurrent to the sentence in respect of criminal damage.

The learned judge imposed a sentence of six months in respect of each of the dangerous driving counts, to run concurrent to one

another and to the other sentences. This resulted in a cumulative sentence of seven years. The sentencing judge also conditionally

suspended the last year of that cumulative sentence for a period of two years.

3. The appellant appeals against both his conviction and the severity of his sentence. This judgment deals with the conviction aspect

of his appeal only.

The Relevant Facts

4. The stolen property in question belonged to Mr Pádraig Ryan of Monksgrange, Co. Tipperary. The property in question was a

“Nugent” twin-axle trailer with an estimated value of €3,000. On the trailer was a 2013 red “Craftsman” ride-on lawnmower, with an

estimated value of €2,500. There was also a “Marijoama” strimmer with an estimated value of €500. The trailer had been left beside

Mr Ryan’s garage, which, although located at the end of a long driveway into the property, was visible from the road outside. Mr Ryan

left his home at about 2.15 p.m. on the 2nd of July 2015 and the trailer was there. When he returned home at around 7 p.m. the

trailer and its contents were gone. When the property was later recovered the electrical cable on the trailer was broken.

5. On the same evening Detective Garda Patrick O’Gorman and Detective Garda Adrian Cooke were on duty and were patrolling in an

unmarked Ford Mondeo. Conditions were described as dry and sunny with good visibility. At approximately 7.00 p.m. they were leaving

Moyglass village in the direction of Fethard when they observed a black jeep driving towards them in an erratic manner. The jeep had

a trailer attached which was swerving. As the vehicle approached the car it braked hard and took evasive action.

6. Detective Garda O’Gorman, who was the observer (in the front passenger seat) told the jury that at the last minute, because of

the manner in which the car was approaching, he focussed on identifying the driver and recognised him as the appellant. He claimed

that the appellant was at all times staring back at the two Gardaí. Detective Garda O’Gorman told the jury under cross examination

that the appellant was wearing a black peaked cap “but the peak of his cap was back” so that the appellant’s face could clearly be

seen. He told the jury that he was “100, 110%” sure it was the appellant. He admitted under cross examination that the driver

(Detective Garda Cooke) would have been seated between him and the appellant. Detective Garda Cooke said he also recognised the

appellant. Under cross examination he told the jury that he had formed the opinion that the driver was the appellant independently of

Detective Garda O’Gorman. Regarding the appellant’s clothing, Detective Garda Cooke said he was wearing a black baseball cap and

he was “wearing it normal with the peak up on it”. The admissibility of the recognition evidence of the two Gardaí was unsuccessfully

challenged at a voir dire which is dealt with in the next section of this judgment.

7. It was decided to pursue the appellant to caution him regarding the manner of his driving. At the beginning of the pursuit there was

a silver car in front of the appellant’s which he overtook on a bend. The silver car pulled in when he heard the Garda sirens and the

Gardaí were able to catch up with the appellant. Detective Garda O’Gorman estimated that he was driving in excess of 120 kilometres

per hour on a country road where the speed limit was 80 kilometres per hour. At a junction near Laffansbridge the Gardaí observed a

cyclist coming around a bend, travelling towards the jeep. The appellant took the bend at speed on the wrong side of the road forcing

the cyclist to take evasive action and mount the grass at the side of the road. Detective Garda O’Gorman stated that it was “lucky

[the cyclist] had somewhere to go”.

8. The appellant continued on towards the townland of Killaheen. After a time he came to a sudden stop. At that stage, Detective

Garda O’Gorman attempted to exit the car to approach the jeep. There was approximately a car’s length between the jeep and the

patrol car. Detective Garda O’Gorman was stepping out when the appellant reversed at speed into them in an attempt to disable the

patrol car. Garda O’Gorman was “shunted” back into the passenger seat. Detective Garda O’Gorman was uninjured, and the car was

not disabled.

9. The pursuit continued. Detective Garda O’Gorman described the road as a “country road, very narrow, but the surface was it was

newly tarred at that stage and it was a good enough surface on that road but again very narrow and given the time of year the

hedges were very overgrown as well.” A short time later, the appellant once again came to a sudden stop and tried to reverse on top

of the patrol car. This time Detective Garda Cooke avoided impact by reversing. The appellant took off towards Ballintaggart down “a

country boreen” which had “grass growing in the middle of it” and was liable to create clouds of dust if driven on at speed on a dry

summer’s evening, making it impossible to maintain close pursuit. All of a sudden the trailer became visible through a cloud of dust,

having been abandoned in the middle of the road, and the black jeep was observed driving away. Detective Garda O’Gorman estimated

that the pursuit had lasted approximately 10 minutes.

10. The appellant was arrested on the 8th of July 2015 and was interviewed at Clonmel Garda Station. In this regard Detective Garda

O’Gorman stated that “[h]e was interviewed … but nothing arose.”

The Specifically Contested Evidence

11. In his defence, counsel for the appellant argued that the person seen driving the jeep was not in fact the appellant – this is dealt

with in the next section. It was also put to Detective Garda O’Gorman that the appellant had indicated that he had been drinking all

day with his family in Thurles. In response, Detective Garda O’Gorman stated:

“A. He stated that, Judge, but he didn't state that during interview. He stated that off camera

Q. Isn't but isn't ?

A. and it changed from at various times during the day. It started that he was drinking by the river, then that

proceeded when questioned further, that proceeded that he was drinking with his family and then when asked for details

he stated he was actually in an off licence in Thurles.

Q. Yes?

A. It's just because I know Thurles district, it was we clarified that he give me the directions, I could ascertain

whereabouts he was saying in Thurles he was at that stage. And I clarified that it was Millea's at the bottom of the

square is the off licence he indicated. However, he's indicating he was there at quarter to 8 that night. I'm saying 100%

he was not there at 7 o'clock. He passed us driving through Moyglass quite capable of getting that distance into Thurles

in half an hour.

Q. That's a very long answer to the question, Garda. He said to you at interview: "I was drinking with family all day by

the river and I went to an off licence in Thurles." My question to you is did he say that to you?

A. Judge, he did. But that I'm just explaining it further as to how that originated. He didn't say that during an interview

when questioned on camera.

Q. And in terms of the off licence in Thurles, did you go there and establish whether he was there or not?

A. Judge, we made an inquiry with Millea's off licence where Garda William Lynch from Thurles made contact with the

owner to see could he establish if there was CCTV available and he notified me that there wasn't CCTV available in that

premises.”

The Recognition Evidence

12. As previously noted, the admissibility of the recognition evidence given by Gardaí was subject to a voir dire at the beginning of

the trial, counsel for the defence submitting to the Judge that there was “an issue … with regard to the level of knowledge that the

gardaí had with respect of Mr Connors”. Under cross examination during the voir dire both Gardaí were questioned as to their personal

familiarity with the appellant prior to the present case. Detective Garda O’Gorman stated that he had had two interactions with him.

The first was in 2014 when he was in plain clothes targeting suspicious activity in relation to burglaries. He did not speak to the

appellant directly but could recall that he gave an address of “175 Killinarden Heights in Tallaght”. Because the appellant had no

resident address in Clonmel, Detective Garda O’Gorman told the Court that he remembered the incident “distinctly”. Detective Garda

O’Gorman also stated that the appellant was the driver of a silver Volkswagen Passat, and one of the passengers was a man by the

name of Andy Cash. This information was collated and marked down as intelligence. In 2015, the appellant was detained at Thurles

Garda Station where Detective Garda O’Gorman was also present. Though he did not interact with the appellant personally, Detective

Garda O’Gorman said he did see him at the station. He initially estimated this second encounter to have occurred around May 2015,

two months prior to the offences in this case. Detective Garda O’Gorman was also familiar with the appellant from an intelligence

bulletin circulated among Gardaí containing five photographs of the appellant.

13. Detective Garda Cooke appeared to have more limited knowledge of the appellant than Detective Garda O’Gorman. Detective

Garda Cooke said he “would not have had any physical interactions with [the appellant] but … would be familiar with him from his

suspected involvement in criminal activities in the Tipperary division.” When asked how many times he had seen the appellant

Detective Garda Cooke replied that he “could not put a finger on it.”

14. The appellant gave evidence on the voir dire and was cross examined. He denied any prior interaction with either of the two

Gardaí, saying that he had “never seen them before in my life”. Asked under cross examination whether he knew a man by the name

of Andy Cash (a passenger in his vehicle in Clonmel in 2014 according to Detective Garda O’Gorman), the appellant gave a rather

confusing and seemingly contradictory reply in which he initially claimed not to know anyone by that name but then immediately

conceded that he “might” know an Andy Cash and subsequently saying he would “know them offhand.” He told the Court his address

at the time was 175 Killinarden Estate, Tallaght, Dublin 24. Regarding his detainment at Thurles Garda Station earlier in 2015, he

stated that it had occurred around January or February (whereas Detective Garda O’Gorman stated that it had occurred in May) and

told the Court that he had only been at Thurles Station for a mere ten minutes before being transferred to Nenagh.

15. Subsequently, Detective Garda O’Gorman furnished the Court with the appellant’s custody record from Thurles Garda Station. The

custody record showed that the detention had in fact occurred on the 5th of February 2015, two months earlier than Detective Garda

O’Gorman had told the Court. However, contrary to the appellant’s assertion that he had been there for ten minutes, the record

showed that in fact he had been held at Thurles Garda station from 2.45 p.m. until 5.02 p.m. – well in excess of two hours.

16. In his ruling on the level of knowledge of the two Gardaí, the trial judge found Detective Garda O’Gorman’s evidence “infinitely

more credible than that of Mr Connors” and had regard to Mr Connors’s answers regarding Andy Cash. He also found Detective Garda

Cooke to be “a very credible witness”. He therefore allowed the evidence of recognition to be adduced before the jury. The basis

upon which the two Gardaí claimed to be able to recognise the appellant, which had been gone into on the voir dire, was properly not

led before the jury. Detective Garda O’Gorman was simply asked at the appropriate point in his narrative “Who was the person driving

that vehicle?” and he relied “Daniel Connors of 175 Killinarden Heights but also with another address at Lurgeo, Killenaule,

Laffansbridge.” Detective Garda Cooke, in turn, told the jury “I was in a position to recognise the driver as Daniel Connors of 175

Killinarden Heights, Tallaght, and also of Lurgeo, Killenaule.”

Possession of Stolen Property

17. At the end of day one of the trial counsel for the appellant submitted that the charge of possession of stolen property had not

been made out. He laid emphasis on the wording of s. 18 of the Criminal Justice (Theft and Fraud Offence) Act 2001, which requires

that possession must be “otherwise than in the course of stealing.” It was submitted that “as far as the garda evidence is that this

could have been a continuous transaction from Mr Ryan's house to the locus and, if that were the case, it would be in the course of

stealing” and therefore the charge had not been made out. This submission was rejected by the trial judge.

The Judge’s Charge

18. The learned trial Judge made a number of comments in relation to identification evidence. He charged the jury in relation to the

possibilities of mistake in identification evidence as the law required him to do. He went on to refer to inconsistencies between the

accounts of the two Gardaí regarding the position of the appellant’s peaked cap on his head. He also drew the jury’s attention to the

defence argument that Detective Garda O’Gorman’s view must have been blocked by Detective Garda Cooke. He then stated: “I think

you'll all have experience that if you're at a match or at a concert and somebody's head rises in front of you, you'll immediately

move to one side to overcome the obstruction.” Counsel for the appellant has emphasised to this Court that no such case had been

made by the prosecution.

19. In introducing his charge, the learned trial Judge outlined a number of principles underpinning the criminal justice system:

“First of all there's this; when crime is committed, it affects obviously the direct victims but with some crimes, there

aren't any direct victims, such as for example possession of drugs or perhaps failing to pay road tax. Things like that.

But whatever about that, whatever about direct victims, there are always victims of crime and society itself is a victim

when crime is committed. If somebody's house up the road from you is burgled, obviously you feel for that person but

you feel damaged yourself. Society is damaged. It is lessened, and it is very important that when crime is committed,

that it should be properly investigated and that the perpetrators of the crime should be brought to justice. So that if a

crime is committed and nobody is ever charged with that or a person charged is acquitted of that crime the guilty

person is acquitted of that crime, then society suffers in that respect.

Side by side with that is another very important public interest and it is this; that if we are to in our society have

somebody convicted of a criminal offence, then that is something that should only ever come about if it can be done

safely. It should only come about after a manifestly fair process has been undergone where the evidence is properly and

fully assessed. And so that these two public interests are at play in every single criminal case, whether that be for some

minor offence before the district court or whether it is for murder or rape in the Central Criminal Court or whether it's

for something in between in the scale of gravity such as we are dealing with here in the circuit court before you, a jury.

And while both public interests are extremely important and they are at play, as I say, in every case and there's

obviously a tension between them, you the jury hold the balance in relation to that in this case; it is the second of those

which is the more important public interest.”

20. During his closing speech, counsel for the prosecution stated that the identification evidence was “quite strong” and “high

quality”. This was followed by a statement in counsel for the defence’s closing speech that he thought this was a “weak, weak case”.

In response, the learned trial Judge charged the jury as follows:

“There are discrepancies in the prosecution case; that is so. It is rare in my experience for there to be no discrepancies

in a prosecution case. And one further matter; in addressing you, Mr Kelly said to you, ‘I think this is a weak, weak

case.’ Now, counsel are obliged by the rules of their profession not to put before the Court any personal views so while

you should have regard to any submissions and any arguments [counsel for the appellant] made to you, the fact that he

personally considers this to be a weak case, a weak, weak case was the expression he used, can be of no is not

something that you can take account of at all. Have regard to the rest of what he said to you, but counsel are not here

in any personal capacity and it is contrary to the rules of his profession that he should put such an opinion before you so

you can disregard that. Have regard to anything which amounts to a submission to you, to an argument, but not to a

personal view.”

The Suggestion the Appellant had Refused to Answer Questions

21. At the close of the prosecution case the appellant submitted that Detective Garda O’Gorman had implied that the appellant had

refused to answer questions when he said that “nothing arose” from the detention. The trial judge rejected this submission, stating:

“I frankly cannot recall anything which indicated to the jury, certainly the evidence I heard didn't indicate to me, that

questions were asked which were not answered, thus indicating to the jury that Mr Connors, when questioned, took the

option that he would offer no comment to any questions put. That, as I say, I did not form that view from anything said

by Garda O'Gorman, and I'm against Mr Kelly in relation to that.”

Grounds of Appeal

22. While ten formal grounds of appeal were advanced, the appellant has helpfully consolidated these in his written submissions under

three main headings, namely:

A. Errors by the trial judge in his rulings and/or determinations re:

(a) “recognition” evidence;

(b) the “possession” charge;

(c) failing to engage or provide adequate reasons.

B. Unfairness/Objective bias.

C. Jury verdict unsafe or perverse.

A. Alleged Errors by the Trial Judge

(a) Permitting the Gardai to give recognition evidence

23. Counsel for the appellant submitted that the trial judge had erred in holding that the respective previous sightings of Detective

Garda O’Gorman and Detective Garda Cooke, as described on the voir dire, provided a sufficient basis for the admission of evidence of

their purported recognitions to go before the jury. It was submitted that the trial judge’s ruling was “terse” and not entirely on point.

The trial judge appeared to admit the recognition evidence on the basis that the Gardaí were more credible than the appellant, and

this, it is said, was neither a relevant consideration nor the correct test. Moreover, it is complained that the ruling was at, least in

part, informed by a consideration that one of the Gardaí had given reliable evidence in the past in other cases.

24. Reliance was also placed on an inaccuracy and alleged inconsistencies in the Garda evidence on the voir dire particularly. Garda

O’Gorman’s initial evidence claimed that the appellant had been in detention in Thurles Garda Station just two months prior to the

incident in this case, whereas it was later established to have in fact been five months prior to it. Counsel for the appellant also

highlighted the allegedly different descriptions given by Detective Garda O’Gorman and Detective Garda Cooke respectively concerning

the manner in which the driver of the vehicle they were pursuing had worn his peaked cap. Reliance was also placed on Detective

Garda Cooke’s limited previous knowledge of the appellant, and his limited opportunity for observation on the occasion of the

purported recognition (4-5 seconds, on his own evidence, 2-3 seconds on his colleague’s evidence).

25. In ruling on the admissibility of the recognition evidence the trial judge said:

JUDGE: Yes. Well, it is true that Garda O'Gorman's recollection of dates is not particularly good in relation to either

incident. But in every other respect and that is a failing that many people have, I should say but in any other respect I

find his evidence to be infinitely more credible than that of Mr Connors and I'm having regard to the answers of Mr

Connors in cross examination in relation to Andy Cash. And I have to say that I did not find Mr Connors to be a credible

witness at all. I accept the evidence of Garda O'Gorman and I have to say that Detective Garda Cooke has given

evidence before me in quite a number of matters over the years. I've always found him to be a very credible witness

who takes his oath seriously. So, I will allow the proposed evidence of recognition to be adduced before the jury.

26. It is clear to us that the trial judge was satisfied to accept the evidence of both Detective Garda O’Gorman and Detective Garda

Cooke to the effect that they had had relatively recent previous encounters with the appellant, and that he was therefore sufficiently

known to them to enable them to offer the view that they had recognised him as the driver of the vehicle that they were in pursuit of

on the 2nd of July 2015. While Detective Garda O’Gorman had incorrectly estimated how long previous it was that he had seen the

appellant in Thurles Garda Station, it was the same Detective Garda O’Gorman who subsequently corrected the record and who

produced to the court the relevant custody record book. The judge had no reason to doubt that he was credible and reliable in those

circumstances.

27. Moreover, while counsel for the appellant is correct in saying that the fact that Detective Garda Cooke had given credible

evidence in the past, and had always taken his oath seriously, were not relevant considerations and the trial judge should not have

commented as he did, we are nonetheless satisfied that the trial judge’s ruling with respect to Detective Garda Cooke’s entitlement to

give recognition evidence was correct and sound. Detective Garda Cooke’s credibility was never in fact challenged on the voir dire.

Nor was his integrity or his appreciation of the solemnity of the oath. These were simply non-issues, and in those circumstances while

the judge’s remarks with respect to the witness’s credibility and integrity were inappropriate, they do not serve to undermine his

substantive ruling. What was challenged was the sufficiency of the witness’s previous knowledge of the appellant, and whether his

evidence on the voir dire of purported recognition in circumstances where he had had limited opportunity for observation was

sufficiently cogent, and sufficiently capable of being relied upon, to allow it to be admitted before the jury.

28. It is clear from the transcript that there was sufficient evidence of previous knowledge before the trial judge on the voir dire to

allow him, if he was prepared to accept it, to permit recognition evidence to go to the jury. Moreover, the trial judge heard the

evidence adduced first hand, and was in the best position to assess the quality of the evidence being adduced in the sense of its

potential reliability. In those circumstances we are satisfied that his ruling should be upheld and not interfered with.

(b) The “Possession Charge”

29. This complaint raises a net point of law. Section 18(1) of the Criminal Justice (Theft and Fraud) Offences Act 2001 (“the Act of

2001”), provides that:

“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.”

30. The appellant contends that this charge should have been withdrawn from the jury on the basis that when the appellant was

found in possession of the trailer and its contents the theft was not complete, and that it was in fact still in the course of being

stolen. The evidence was that the appellant’s jeep was intercepted while pulling the stolen trailer just 25 minutes driving time away

from Mr Ryan’s property. It was suggested that there was nothing to suggest that this was not a continuing getaway.

31. Moreover, the jury had heard the following exchange during the cross-examination of Detective Garda O’Gorman:

Q. So, it could be that whoever was taking the jeep was taking it from Monksgrange directly? Whoever was towing the

trailer might have been leaving Monksgrange with it?

A. Well, obviously, Judge, from the evidence of Padraig Ryan that's where he left it. He left it at his home address, so it

was obviously stolen from there. And I presume it was -- he had seen it earlier that evening left at his home, or that,

and he reported it to the guards shortly before 7 o'clock on noticing that it was gone, so I can't give an exact time as to

when it was taken but –

Q. So, just there's a good chance that whoever was pulling the trailer with the strimmer and the lawnmower on top was

actually continuing from having taken it from Monksgrange?

A. Most likely, Judge, yes.

Q. But possibly not?

A. Well, possibly not, Judge, yes. I can't say.

32. In support of the appellant’s point we were referred to People (Attorney General) v Carney & Mulcahy [1955] I.R.324, and O’Leary

v Cunningham [1980] 1 I.R 367, both cases being authority for the proposition that an accused cannot simultaneously be guilty of

stealing certain property, and of “receiving” (i.e the offence under the Larceny Act 1916, which has since been replaced by the

offences of “possession of” or “handling” stolen property under ss. 17 and 18 of the Act of 2001

33. It was drawn to our attention by counsel for the respondent that he had opened s. 55 of the Act of 2001 (which allows for

alternative verdicts) to the trial judge, and had asked the trial judge to allow the jury consider alternative verdicts of s.4 theft and

s.18 possession, but that the trial judge had opted not to do so having heard counsel for the appellant who had submitted that there

would have to have been evidence before the jury that the appellant was possibly involved in the stealing of the property before s.4

theft could be left to the jury as an alternative verdict. Counsel for the appellant submitted that there was no such evidence, and

the trial judge had responded: “Yes, Well, yes, I’m inclined to be with you on that Mr Kelly.”

34. Counsel for the respondent contends that the verdict should be upheld. First, he says that the theft was completed once the

trailer and its contents left Mr Ryan’s property. It was ongoing up to the point where it crossed his boundary, but that thereafter the

appellant was properly to be characterised as being in possession of stolen property otherwise than in the course of stealing it.

35. Counsel for the respondent further argues in the alternative that while the evidence of Detective Garda O’Gorman had been that it

was “most likely” that the driver of the jeep was still in the course of a continuing getaway, that did not foreclose on the possibility

that the getaway was discontinuous, and the jury were entitled to consider s.18 possession on that basis and to convict the

appellant.

36. We are of the view that the alternative verdict of theft ought to have been left to the jury by the trial judge in circumstances

where, on one view of the evidence, it would have been open to the jury to conclude that the nature of the appellant’s involvement

was that he stole, or was a participant in the stealing of, the trailer and its contents, and that the trial judge was in error in not

doing so. While there were no eye-witnesses to the theft, the manner in which the driver of the jeep, said to be the appellant,

sought to evade interception by the Gardaí, coupled with the later positive identification of the trailer and its contents as being those

taken from Mr Ryan, provides sufficient circumstantial evidence of the appellant’s possible involvement in their theft to have allowed

the judge to permit the jury to consider theft as an alternative to the possession charge.

37. Of course, it is of the essence of alternative charges that they are alternatives. Even if theft had been allowed to go to the jury

as an alternative, it might still have been the case that the jury would have convicted of possession in any event. The trial judge in

allowing possession only to go to the jury had been at pains to emphasise to them that it had to be possession other than in the

course of stealing. The evidence they had heard did not preclude such an outcome.

38. We feel that it is important to say that we do not regard the old case law arising under the Larceny Act 1916 concerning the

distinction between “larceny” and “receiving” to be particularly helpful in the context of the present legal issue. The modern offence

of “possession of stolen property” is not be treated as a mere synonym for the old crime of receiving, nor indeed is the modern

offence of “handling stolen property”.

39. Central to proving the old offence of larceny was the necessity to establish an animus furandi, stemming from a perceived need to

distinguish the felony of larceny from a mere trespass de bonis asportatis. McAuley and McCutcheon in “Criminal Liability – A

Grammar” (2000) (Dublin: Round Hall, Sweet & Maxwell) have (at p.21) characterised this as “a highly technical doctrine studded

with artificial distinctions”, a characterisation with which we agree.

40. The Oireachtas in enacting the Act of 2001sought to fundamentally update the previous law concerning larceny and related

offences. In particular, in replacing the old offence of receiving with the more modern offences of the possession of, and the handling

of, stolen property, the Oireachtas sought to expand and broaden the category of persons who might be made criminally liable for

dealing in some fashion with stolen goods, either as a middleman (a “fence” in colloquial terms), or as a final possessor. It is clear to

us from a consideration of the Act of 2001 as a whole that it was certainly not the intention of the Oireachtas that an offender in the

situation of the present appellant should escape criminal liability by falling between the two legal stools represented by a theft

offence on the one hand, and a handling or possession offence on the other hand. Although for a possession offence to have been

committed the possession relied upon must have been “otherwise than in the course of the stealing”, it does preclude a thief from

also being convicted of being in possession of stolen goods providing that the theft has been completed at the time of the act of

possession relied upon as representing the actus reus of the offence of possession of stolen goods. Whether or not the theft was

completed at the material time will be a question of fact for the jury to determine in any particular case. The position advanced by

the respondent to this appeal suggesting that it would have been open to the jury to conclude on the evidence before them that the

theft had been completed once the trailer and its contents had left Mr Ryan’s property was certainly one that the jury could have

arrived at, and if that was their view it was legally open to them to convict the appellant of being in possession of stolen goods at

the time that he was intercepted by the Gardaí, notwithstanding the possibility that he might also have been the actual thief.

41. It is relevant to consider at this point the powers of this Court on a case such as this i.e., where there was an error of principle in

failing to instruct the jury as to the possibility of bringing in an alternative verdict. They are set out in s. 3 of the Criminal Procedure

Act, 1993, and are as follows:

3.—(1) On the hearing of an appeal against conviction of an offence the Court may—

(a) affirm the conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be

decided in favour of the appellant, if it considers that no miscarriage of justice has actually occurred), or

(b) quash the conviction and make no further order, or

(c) quash the conviction and order the applicant to be re-tried for the offence, or

(d) quash the conviction and, if it appears to the Court that the appellant could have been found guilty of some other

offence and that the jury must have been satisfied of facts which proved him guilty of the other offence—

(i) substitute for the verdict a verdict of guilty of the other offence, and

(ii) impose such sentence in substitution for the sentence imposed at the trial as may be authorised by law for the

other offence, not being a sentence of greater severity.

42. Clearly, s. 3 (1)(a), s. 3(1)(c) and s.3(1)(d) are all potentially engaged in the circumstances of this case. However, we see only

two realistic outcomes in respect of the present complaint on the appeal having regard to the evidence that was before the jury. We

are satisfied that the justice of the case would not admit of any other. Either we should uphold the conviction for possession of

stolen property on the basis that the jury had evidence before them on which, on a particular view of it, they would have been

entitled to convict; or, alternatively, we should exercise our power under s.3(1)(d) to substitute the alternative verdict of theft for

the verdict of possession returned by the jury, and sentence the appellant appropriately. In particular, we consider that the point

raised is a purely technical one but that on the evidence the jury would have been obliged to find the accused guilty of one or other

offence. Any theoretical prospect of an outright acquittal is fanciful, and accordingly we do not think that quashing the verdict and

directing a re-trial would be an appropriate order on this appeal.

43. Although it has been a finely balanced decision, we have ultimately been satisfied to uphold the existing conviction for s.18

possession. The jury was properly instructed with respect to the ingredients of the offence, and there was evidence before the jury

on which, on a particular view of it, they would have been entitled to convict. The verdict was not therefore perverse and may be

upheld in the unusual circumstances of this case.

44. In the circumstances we dismiss this ground of appeal.

(c) failing to engage or provide adequate reasons.

45. The complaint under this heading is couched in terms that the trial judge failed to provide sufficient reasons for his rulings and

appeared to reject summarily all of the defence submissions. Although the complaint is framed as relating to “rulings” plural, counsel

for the appellant singles out one ruling in particular, namely the ruling admitting the recognition evidence. While complaints are made

of unfairness/objective bias in respect of other rulings, and these complaints are dealt with in the next section of this judgment, the

only complaint specifically alleging inadequacy of reasons relates to the admission of the recognition evidence.

46. We have considered the transcript and are not satisfied that this ground of complaint is made out. It is true that in respect of the

admission of the recognition evidence the trial judge’s ruling was terse, and it would have been better if more detailed reasons had

been given. However, the ruling was, as we have already stated, correct in law in our view. The fact that defence submissions

happen to be rejected is not a sound basis for complaint unless the rejection was wrong in law. Moreover, it is clear from the

transcript of the evidence given on the voir dire, and his exchanges with counsel with respect to this evidence, that the judge’s

interest was fully engaged. Although complaint is made that the judge appeared to reject summarily the defence submissions, it bears

remarking upon that the defence submissions on this issue, which are to be found on the transcript just before the trial judge’s ruling,

run to just fourteen lines. The ruling which followed this submission runs to ten lines. This was not a case of no reasons being given,

albeit that the stated reasons were brief. We are satisfied that they were adequate in the context of a relatively short voir dire

involving a single legal issue.

B. Alleged Unfairness/Objective Bias

47. The ruling on the admission of recognition evidence is also said to be indicative of unfairness/bias on the trial judge’s part. We

reject that without hesitation, and again re-iterate that the ruling that he made was one that was lawfully open to him on the

evidence that he had heard, and we see no reason to interfere with it.

48. It is then complained that although the trial judge “rejected the defence submission on section 18 possession on the premise

that it was the duty of the prosecution to satisfy the jury that the possession was otherwise in the course of stealing, he

subsequently charged the jury differently, and, in circumstances where the prosecution had patently had not been proven”.

49. We have reviewed the transcript of the trial judge’s charge concerning the ingredients of section 18 possession, and what he had

to say about the evidence that the jury had heard in that regard. In the first instance he addressed the ingredients stating:.

“With regard to possessing stolen property, what the Act says is this; a person who without lawful authority or excuse

possesses stolen property otherwise than in the course of stealing, knowing that the property was stolen or being

reckless as to whether it was stolen, is guilty of an offence. So first of all, the first ingredient is where somebody is that

somebody possesses property. Secondly, it must be without lawful authority, in other words, if I have say a set of golf

clubs and they've been given to me by my friend, I possess them and I have lawful authority for that, to have them,

because my friend has decided to lend them to me. That's lawful authority or excuse. Then and if that possession is

otherwise than in the course of stealing, so this is an offence which rules out something done in the course of stealing,

knowing that the property was stolen or being reckless as to whether it was stolen is guilty of an offence. So there must

be knowledge that this is stolen property. Now, alternatively, there can be recklessness as to that.”

50. The trial judge went on to tell the jury about recklessness, and then made the following comments with respect to the evidence

concerning s.18 possession:

“But one of the ingredients there, as I've told you, is that this must be done otherwise than in the course of stealing.

The argument that Mr Kelly makes about that is this; that if you're satisfied that the person who took these items from

Mr Ryan was in fact Mr Connors and he was driving away from the scene towards his home when this happened, then

you could not convict of this offence and he is correct in that if you come to that conclusion. Now, I'll just remind you

that there was something close to a five-hour gap when Mr Ryan was away from his property on that day and remind

you also of the fact that this would be, on the garda evidence, this would be on a route home which Mr Connors could

take if he indeed were the perpetrator of the crime at Mr Ryan's house and were on his way home.”

51. We are satisfied that these were correct and proper instructions to the jury. A trial judge is entitled to comment on the evidence,

and there was no unfairness or bias on the judge’s part in drawing the jury’s attention both to what defence counsel was saying, on

the one hand; and to potentially relevant pieces of evidence that they ought to have regard to in considering what had been urged

upon them, on the other hand. We consider the complaint in this regard to be without foundation.

52. It is further complained that the trial judge was unfair/exhibited objective bias in rejecting a defence submission concerning

Detective Garda O’Gorman’s account of the Garda interview with the appellant. The relevant evidence was as follows:

“Q. Now, I think that on the 8th of July 2015 the accused was had been arrested and he was at Clonmel Garda Station

but nothing of any evidential value arose; is that correct?

A. No, Judge. He was interviewed in relation to this offence while he was in custody at Clonmel Garda Station but nothing

arose.

Q. Yes, Garda, if you can just answer the question. And nothing of any evidential value arose?

A. Nothing of any evidential value arose.”

53. It bears commenting upon that no objection was made to this evidence at the time, and no application was made arising out of it.

However, at the close of the prosecution case, counsel for the appellant referred to it during an application for a direction. The

defence complained that the Detective Garda’s answer implied that the appellant had been un-cooperative when interviewed, when

he had merely been lawfully exercising his right to silence, and that, in effect, the spirit of the rule in The People (Director of Public

Prosecutions) v Finnerty [1999] 4 I.R. 364 had been breached. The trial judge disagreed, ruling:

“Well, with regard to the first matter raised by [counsel], I frankly cannot recall anything which indicated to the jury,

certainly the evidence I heard didn't indicate to me, that questions were asked which were not answered, thus indicating

to the jury that Mr Connors, when questioned, took the option that he would offer no comment to any questions put.

That, as I say, I did not form that view from anything said by Garda O'Gorman, and I'm against [counsel] in relation to

that.”

54. We have considered the transcript and in particular have considered the impugned answer given by Detective Garda O’Gorman in

the context in which it was given. We consider that the trial judge was correct. It is of considerable significance in our view that The

Detective Garda’s answer did not strike the defence as objectionable at the time it was given, and that it was only laterat the end of

the prosecution case that defence counsel sought to raise an issue in relation to it. The trial judge was not satisfied that the point

raised had any substance, and the fact that he held that view, which we agree with, was neither indicative of any unfairness, nor

does it give rise to any concern that he might objectively be considered to have been biased. Such a proposition is wholly untenable,

and we reject it emphatically.

55. The next complaint which is said to be indicative of unfairness, and such as to raise a concern about bias, is the fact that the

trial judge admonished defence counsel in the course of his charge for expressing a personal opinion. Prosecuting counsel had

submitted to the jury in his closing that they had received “quite strong recognition evidence” and that the recognition evidence was

“of high quality”. Defence counsel in turn characterised the case as “a very weak identification case”, but in doing so went further

than merely commending to the jury that that was a view that they might take of the evidence. Rather, he told them “I think this is

a very weak, weak case” (this Court’s emphasis).

56. In the course of his charge to the jury, the trial alluded to what defence counsel had said in his closing, and remarked:

“And one further matter; in addressing you, [counsel for the accused] said to you, "I think this is a weak, weak case."

Now, counsel are obliged by the rules of their profession not to put before the Court any personal views so while you

should have regard to any submissions and any arguments [counsel for the accused] made to you, the fact that he

personally considers this to be a weak case, a weak, weak case was the expression he used, can be of no -- is not

something that you can take account of at all. Have regard to the rest of what he said to you, but counsel are not here

in any personal capacity and it is contrary to the rules of his profession that he should put such an opinion before you so

you can disregard that. Have regard to anything which amounts to a submission to you, to an argument, but not to a

personal view.”

57. We are satisfied that the judge’s admonishment was correct in principle, was delivered in measured terms, and represented a

proper instruction to the jury. It was not unfair, nor could it raise any concern of bias in the mind of an objective observer. By the

same token, we are fully satisfied having considered the transcript that the breach of rules was almost certainly accidental on

counsel’s part and that there was no deliberate attempt on his part to inappropriately influence the jury. However, accidental or not,

it did have the potential to influence the jury and the trial judge was therefore right to address what had been said by counsel in his

charge.

58. The next complaint under this heading is that the trial judge gave the appearance in the course of his charge of being unduly

focused on securing a guilty verdict. He stated, (inter alia):

“JUDGE:- There are two very important public principles that come into play when a criminal charge is brought against

somebody. First of all there's this; when crime is committed, it affects obviously the direct victims but with some

crimes, there aren't any direct victims, such as for example possession of drugs or perhaps failing to pay road tax.

Things like that. But whatever about that, whatever about direct victims, there are always victims of crime and society

itself is a victim when crime is committed. If somebody's house up the road from you is burgled, obviously you feel for

that person but you feel damaged yourself. Society is damaged. It is lessened, and it is very important that when crime

is committed, that it should be properly investigated and that the perpetrators of the crime should be brought to

justice. So that if a crime is committed and nobody is ever charged with that or a person charged is acquitted of that

crime -- the guilty person is acquitted of that crime, then society suffers in that respect.

And you will know, ladies and gentlemen, from your own general knowledge, from reading newspapers, from watching --

from television, or radio bulletins, you will know that juries in this country do regularly bring in verdicts of guilty. Those

juries would have been told about the standard of proof in broadly similar terms to what I am telling you now and so

that you should not be afraid to convict if you have -- if you are satisfied to that very high standard that I've told you

about of the guilt of the accused. Because consequences, ladies and gentlemen, are for others, not for you.” [Day 2,

page 22 line 34 and page 23 lines 1 – 6.]

59. The defence raised a requisition at the end of the judge’s charge in the following terms:

“I think the Court -- it was when you were going through the burden that rested upon the prosecution, I think you said

to the jury that they'd know from their life experiences that in the newspapers and on the radios, juries do bring in guilty

verdicts and they should have no fear of doing that if they feel it's proven beyond a reasonable doubt. I wonder would

the Court sort of neutralise that by saying, "Of course, they'll also be aware from their life experiences that juries bring

in not guilty verdicts and they shouldn't be afraid of doing that either if they feel that it's not proven beyond a

reasonable doubt"?

60. The trial judge responded:

“I do not feel that that is warranted. It would -- again, it's very clear from -- it would be very clear if they're aware of

one aspect, that they would be aware of another from their general knowledge and it would again, I think, insult the

intelligence of the jury, that they could not work that out for themselves.”

61. It is suggested that because the trial judge refused this requisition it is evidence of unfairness on his part and that it would give

rise to a concern about possible bias on his part in the mind of an objective observer. We reject these suggestions without hesitation.

The trial judge’s remarks in the course of his charge were clearly directed at emphasising the need for the jury to be faithful to their

oaths, and that they should not be hesitant about doing their duty out of concern for the consequences it might bring for others. The

trial judge’s remarks were expressly qualified on the basis that “you should not be afraid to convict if you have -- if you are satisfied

to that very high standard that I've told you about of the guilt of the accused” (this Court’s emphasis). There was absolutely no

need to state the converse of the proposition, and the trial judge’s view that to do so would “insult the intelligence of the jury” was

an entirely reasonable one. We are not disposed to uphold this complaint.

62. The next complaint under this heading is that the trial judge’s identification warning was inadequate. It is complained that it failed

to tailor the warning to the specific facts of the appellant’s case, and also that the trial judge invited speculation by the jury. It is

suggested that this was further evidence of unfairness and that it is something that would give rise to a concern about possible bias

on his part in the mind of an objective observer.

63. The claim of an invitation to speculate is based upon the following remarks in the course of the trial judge’s charge:

“[The Defence] also argue that the view of the observer and the observer in this case, as you'll recall, was Garda

O'Gorman, must have been blocked by the driver Detective Garda Cooke when he was looking across through the

driver's window. As regards that, I think you'll all have experience that if you're at a match or at a concert and

somebody's head rises in front of you, you'll immediately move to one side to overcome the obstruction.”

64. It is often said that one of the advantages of a jury trial is that a diverse group of people bring to bear their experiences of life

when it comes to a consideration of the evidence. We are satisfied that the trial judge did not cross any line in this instance and that

he was merely appealing to the jury to bring to bear their experience of life in the consideration of this particular aspect of the

evidence. We are therefore not disposed to uphold this aspect of the complaint

65. As to the adequacy of the overall charge on identification, we have considered the transcript on this aspect of the trial, and also

the case law commended to us, namely The People (Director of Public Prosecutions) v O’Donovan [2005] 1 I.R. 385. It was specifically

complained to us in written submissions that the trial judge’s:

“purported endeavour to contextualise the law to the facts the judge completely nullified the identification warning. The

judge seemed even to suggest that “recognition” evidence of the type proffered here, was more reliable than mere

identification. The judge contended that the two Gardaí had seen Mr. Connors “relatively recently” before their

purported identification even though there was no evidence as to the single occasion when Garda Cooke had previously

seen Mr. Connors and it had been some five months since Garda O’Gorman had claimed to have seen him for only the

second time ever.”

66. It is appropriate in the circumstances to set out in full the trial judge’s remarks with respect to recognition/visual identification. He

told the jury:

“Now, the defence here, ladies and gentlemen, is that the person who did this driving on this occasion was not Daniel

Connors. The prosecution relies on identification evidence with regard to this and as you've been told by both counsel,

this is at the heart of the case, the identification evidence of the two gardaí. You've all experienced a situation no doubt

whereby you see somebody across the street from you and you think, ‘Oh, that's my cousin so-and-so’ or whatever,

you go across and you realise when you get near, ‘Oh, no, it looks a bit like them but that's not who it is’ So you'll know

probably of your own general knowledge that you have to treat identification evidence carefully. Now, back in 1963, a

very distinguished judge of the Supreme Court was dealing with a case which came before the Supreme Court where

identification evidence had been given and he laid down a statement of the law in relation to identification which has

been followed by all of our courts ever since then and what he said was this, ladies and gentlemen; I'll read it to you.

‘We’ and he was talking about the judges of the Supreme Court ‘are of opinion that juries as a whole may not be fully

aware of the dangers involved in visual identification, nor of the considerable number of cases in which such

identification has proved to be erroneous and also that they may be inclined to attribute too much probative effect to

the test of an identification parade.’ That doesn't arise here of course.

‘In our opinion, it's desirable that in all cases where the verdict depends substantially on the correctness of an

identification, their attention’ that's the jury's attention ‘should be called in general terms to the fact that in a number of

instances such identification has proved erroneous, to the possibilities of mistake in the case before them and to the

necessity of caution. Nor do we think that such warnings should be confined to cases where the identification is that of

only one witness. Experience has shown that mistakes can occur where two or more witnesses have made positive

identifications.

We consider that juries in cases where the correctness of an identification is challenged should be directed on the

following lines, namely that if their verdict as to the guilt of the prisoner is to depend wholly or substantially on the

correctness of such identification, they should bear in mind that there have been a number of instances where

responsible witnesses whose honesty was not in question, and whose opportunities for observation had been adequate,

made positive identification on a parade or otherwise, which identifications were subsequently proved to be erroneous.

And accordingly they should be especially cautious about accepting such evidence of identification as correct. But that if

after careful examination of such evidence, in the light of all the circumstances and with due regard to all the other

evidence in the case, they feel satisfied beyond reasonable doubt of the correctness of the identification, they are at

liberty to act on it.’

That what was stated by the Supreme Court back then and that is the law on identification. Now, applying that to this

case, ladies and gentlemen, there are a number of factors here. There were only a short -- a relatively short number of

seconds involved for identification by the two gardaí. There is the fact that Garda O'Gorman stated that the baseball cap

which the occupant of the jeep was wearing had the peak to the back whereas Detective Garda Cooke said that the

peak was pushed up. They also argue that the view of the observer and the observer in this case, as you'll recall, was

Garda O'Gorman, must have been blocked by the driver Detective Garda Cooke when he was looking across through the

driver's window. As regards that, I think you'll all have experience that if you're at a match or at a concert and

somebody's head rises in front of you, you'll immediately move to one side to overcome the obstruction. The

prosecution say that this occurred in broad daylight on a July evening, that it was recognition evidence and recognition

evidence is stronger than identification of a stranger. If you see a person carrying out a robbery on a woman by taking

her handbag in the street and you're called upon to identify that person later and that person is a stranger, that is

obviously you're more likely to be incorrect than if you happen to know the person who's carrying out the robbery, than

if you had known them in advance.

And the evidence on that was that both gardaí knew Daniel Connors and had seen him in the relatively recent past.

There is also the fact that the evidence that was given in the evidence that they gave, the two gardaí stated with utter

certainty and admitting of no doubts at all that the person who was behind the wheel of the jeep was Daniel Connors.

There is the fact that two different people stated in their evidence that they each independently came to the conclusion

that the person driving was Daniel Connors, before they spoke about it and agreed that it was he. There is the fact that

the jeep passed very close, necessarily passed very close to the unmarked garda car and that there were there was

then the prosecution say an opportunity for observation, close observation.

There is the fact that there was only one person that they had to look at, there weren't other occupants that they had

to try and whose identity they might have had to try and register. There was only one person there. There is the fact,

they say, that Daniel Connors was, although he had come from Tallaght, he was a local in this area and happened to be

it was in that area that these crimes, they say, took place. And there is the fact that when the driver was passing by,

he stared they both said he stared over at them through his driver's window and they had that observation, that

opportunity for observation, I should say.”

67. This was a relatively short trial. We are satisfied that there was adequate contextualisation in the circumstances of the case. The

trial judge identified the following matters as being relevant for the jury’s particular consideration:

i. There were only a number of seconds involved for identification by the two Gardaí.

ii. The fact that Detective Garda O'Gorman stated that the baseball cap had the peak back whereas Detective Garda

Cooke said that the peak was pushed up.

iii. The possibility that the observer, Detective Garda O'Gorman, may have been blocked by the driver.

iv. The nature of the weather conditions.

v. The fact that this was recognition rather than identification of a stranger.

vi. The fact that both Gardaí claimed to know the accused and to have seen him in the past.

vii. The fact that two different people independently came to the conclusion that the person was the appellant.

viii. The closeness of the two vehicles.

ix. The fact that the identifiers had only one person to look at.

x. That fact that both identifiers said that the driver stared over at them through the driver's window.

68. There was nothing wrong in suggesting that recognition evidence given by a person with previous knowledge of the subject

person may be regarded, generally speaking, as being stronger and potentially more reliable than evidence of an identification

performed by a stranger with no previous knowledge of the subject person. That is so, although obviously every case must depend on

its own facts. The trial judge’s remarks on this, however, were generic and were unobjectionable as such.

69. In so far as it is suggested that the trial judge misstated or over-stated the effect of the evidence, we note that no requisition

was raised on this and therefore no complaint was made at the time. The only requisition with respect to the identification evidence

was that the trial judge should tell the jury that in so far as he had made comments concerning the Garda members’ opportunities for

observation that those were his own views (and they were free to disregard them). It was never suggested to him that he had

misstated or over-stated the effect of the evidence.

70. We have considered the complaint of misstatement/overstatement of the evidence, which relates to the assertion that “both

gardaí knew Daniel Connors and had seen him in the relatively recent past”. It was the case that both Gardaí were contending that

they knew and recognised the appellant. Detective Garda O’Gorman had given evidence of a specific dealing with the appellant as

recently as five months previously. The term “relatively recent past” used by the trial judge was of its nature imprecise, but it was

not objected to at the time. However, counsel for the appellant is correct in saying that Detective Garda Cooke did not rely on any

specific interaction with the appellant as the basis for his knowledge, and indeed did not claim to have had any direct interactions

with him. The high point of his evidence before the jury on the issue of his previous knowledge was that he had observed the

appellant “once” previously, although he was not asked, and did not say, when exactly that was. While Detective Garda Cooke had

said in his evidence on the voir dire that he had additional knowledge of the appellant from reading Garda files and reports this was

not repeated before the jury for understandable reasons.

71. It does seem to us that the trial judge’s charge did overstate the evidence very slightly in respect of the effect of what

Detective Garda Cooke had said in his evidence before the jury. Unlike his colleague Detective Garda O’Gorman, he never claimed to

have seen the appellant in the recent past. The inaccuracy was not, however, objected to at the time. No requisition was raised in

respect of it, nor was any other application made based upon it.

72. There is no basis whatever for suspecting that the trial judge’s misstatement or overstatement of this piece of evidence was

deliberate. We reject the claim that this was further evidence of alleged unfairness on his part or that it was something that would

give rise to a concern about possible bias on his part in the mind of an objective observer. We are satisfied that this minor error in

summarising the evidence was accidental and that it did not lead to any unfairness in the trial. At the time it went unnoticed. It did

not strike anybody, least of all the appellant’s legal team, as being significant or as meriting any form of action. In the circumstances

the chances of it having influenced the jury adversely are negligible. Being of that view we are satisfied that, while this ground of

complaint must technically be upheld, we should apply the proviso in s.3 of the Criminal Procedure Act 1993 in respect of it and

uphold the conviction notwithstanding the judge’s minor error.

C. Jury verdict unsafe or perverse.

73. This point occupies just three line in the appellant’s written submissions and was not pressed at the appeal hearing, wisely in our

view. There was sufficient evidence to allow the matter to go to the jury, and for the jury to convict upon it.

Conclusion

74. The Court is disposed to uphold the convictions in this case. The appeal is dismissed on all grounds save in respect of the ground

that raised misstatement/overstatement of a detail of the evidence in the course of the judge’s charge. While we consider that the

trial judge was in error in that regard, we are satisfied to apply the proviso in s.3 of the Criminal Procedure Act 1993 and uphold the

convictions notwithstanding that error.