Court of Appeal quashes conviction for possession of stolen property due to insufficient evidence linking appellant to the vehicle.

THE COURT OF APPEAL

[243/17]

Birmingham P.

Edwards J.

Hedigan J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

PASCHAL KELLY

APPELLANT

JUDGMENT of the Court delivered on the 26th day of July 2018 by Birmingham P.

1. On 19th July 2017, the appellant was convicted on five counts that had been included on a ten-count indictment. Theses

convictions were as follows:

I. Count 1 related to possession stolen property, a white Volkswagen Transporter van Reg. No. 05D 87436, at the time

bearing false registration plates 07C 9795 at Castlepollard, County Westmeath on 15th October 2014.

II. Count 2 was a count of possession of stolen property, a black Volkswagen Golf Reg. No. 12D 21449 at the time bearing

false registration plates 10D 24961 on a date unknown between 30th June 2014 and 15th October 2014 at Rockcourt,

Ballina, County Mayo.

III. Count 3 was a count of unlawful possession of property, a Volkswagen car key belonging to a silver Volkswagen Golf

Reg. No. 12MH 3021 at Sallymount House, Castlepollard, County Westmeath.

IV. Count 4 was another count of possession of stolen property, a Volkswagen key belonging to a black Volkswagen Golf

Reg. No. 12D 21449 at Sallymount House, Castlepollard, County Westmeath.

V. Count 5 was a count involving the obstruction of a member of An Garda Síochána who was acting under powers

conferred by the Criminal Justice (Forensic Evidence) Act 1990 at Clondalkin Garda station on 28th January 2015.

2. At the commencement of the appeal hearing, it was indicated that the parties were agreed that the appeal could be allowed in

respect of Counts 2, 3, 4 and 10 and that the Court need only concern itself with Count 1. In a situation where there had been

multiple convictions, and in consequence, multiple appeals, a considerable number of grounds of appeal had been formulated.

However, given that only one count now remains live, those many grounds have been considerably whittled down. The Grounds of

Appeal which remain live appear to be as follows:

1. That the judge erred in fact and in law in failing to discharge the jury following an application by counsel on the basis

of prejudicial material, inter alia, being the fact that there were Bench warrants in existence at the time of the appellant’s

arrest when it had been agreed that the arrest was valid in law and that the details need not be disclosed to the jury.

2. That the judge erred in fact and in law in refusing an application for a direction in respect of Count 1.

3. That the judge erred in fact and in law in declining to entertain an application that the jury should be discharged on

the grounds that Detective Garda Maria Flynn had consciously and deliberately referred to Detective Garda Michael

Doherty as a member of the Garda Organised Crime Unit and gave evidence of an opinion that placed burdens on the

appellant to prove knowledge of ownership, in particular, by referring to log book of the vehicle which gave rise to a

situation which created an unfair trial by suggesting that the burden of proof should shift to the appellant in relation to

the Volkswagen van 05D 87436, at the time bearing false registration plates 07C 9795, the subject matter of Count 1.

4. That the judge erred when he readdressed the jury in response to a question from the jury in the course of their

deliberations.

The Court considers it prudent to deal, firstly, with the second ground which, if successful, effectively resolves the matter.

The Application for a Direction

3. This ground was formulated in terms of the failure to grant a direction in relation to Grounds 1, 2, 3 and 4. However, the issue now

relates to Count 1 only, Count 1 being the count relating to the white Volkswagen Transporter van. In relation to this van, Mr. John

Riordan gave evidence that he had been the owner of the van and that on 15th July 2014, he lent the van to an employee, Mr.

Leonard Fitzpatrick. He told the jury that he became aware at one stage that the van was missing and that an insurance company

subsequently paid up in respect of the van. There was no direct evidence about the circumstances in which the van came to be

stolen or taken without authority. In particular, the Court did not hear from Mr. Fitzpatrick.

4. This Court is slightly surprised that Mr. Fitzpatrick was not a witness, though it recognises that there may have been reasons for

that. Absent evidence from Mr. Fitzpatrick, the evidence about the circumstances in which the van was taken and went missing, and

by extension, what Mr. Kelly knew about the status of the van is rather thin. There was, however, evidence that the van went

missing and was not recovered leading to an insurance company paying out. The vehicle that Mr. Kelly was driving was not bearing

the correct plates. There was also evidence at trial from Mr. Patrick Laroche that he was in possession of his own white van which

bore number plates 07C 9795.

5. The evidence of Mr. O’Riordan was that he gave possession of the vehicle to an electrician. It is not clear in precisely what

circumstances the vehicle went out of the possession of the electrician and nor is it clear when or in what circumstances it came into

possession of Mr. Kelly. Mr. Kelly was found driving the vehicle on 14th October 2014, which would seem to have been some months

after the electrician lost possession of the vehicle. That presents a difficulty for the prosecution. If Mr. Kelly had been found driving

the vehicle very soon after it went out of the possession of the electrician, it might have been possible to draw the inference that

there was no intervening event, and that the fact that it was in the possession of Mr. Kelly, driving it with false number plates very

soon after it was taken, would have given rise to an inference that Mr. Kelly must have been aware of the situation. However, in the

absence of any direct evidence from the electrician as to precisely when or in what circumstances the vehicle was taken, it seems to

the Court that there has been a gap which just has not been bridged. The prosecution have on a fundamental level, failed to come up

to proof.

6. In those circumstances, the Court feels that the direction application, so far as Count 1 is concerned, should have succeeded.

Having so concluded, the Court considers the conviction to be unsafe and there is no need to go into any other aspects or grounds of

appeal in any detail.

7. Accordingly, we would allow the appeal and quash the conviction.