The People (at the suit of the Director of Public Prosecutions) (respondent) v Antonio Elio Malocco (applicant).

Criminal Law Fraud - Conviction - Appeal against conviction and sentence - Mens rea - Meaning of "intent to defraud or deceive" - Whether necessary to prove defendant benefitted from the fraud - Sentence - Whether trial judge erred in principle in imposing Circumstances where appellate Court may integere with sentence imposed by trial judge.

The Court of Criminal Appeal (before Mr Justice Keane, Mr Justice Barr, and Mr Justice Lavan); judgment delivered 23 May 1996.

IN order to establish an intent to defraud or deceive" for the purpose of the Forgery Act 1913, it is not necessary for the prosecution to show that the defendant benefitted from the offence.

An appellate court ought to interfere with a sentence imposed by a trial judge only when satisfied has erred in principle in imposing that sentence.

The Court of Criminal Appeal so held in refusing an application for leave to appeal against conviction and sentence.

John Coughlan SC and Shane Murphy BL for the applicant, Sean Ryan SC, Erwan Mill Arden SC and Paul McDermott BL for the respondent.

MR JUSTICE KEANE, delivering the judgment of the court said that this was an application for leave to appeal against the conviction of the applicant on six counts of forging documents and uttering forged documents and against the sentence of five years penal servitude imposed following the conviction.

Outlining the facts of the case Mr Justice Keane said that at all material times the applicant was a partner in a firm of solicitors which had acted for the Irish Press Group in libel proceedings; he was also a director of Irish Press Group plc. It had been contended by the prosecution that the applicant had obtained funds from the Irish Press Group for, the purpose of settling libel cases and for the purpose of making lodgments in the course of such proceedings, that the applicant had failed to apply the funds to these purposes and had forged documents in an attempt to mislead his client in this respect.

At the trial, the unchallenged evidence of the prosecution was that the applicant exclusively dealt with libel matters on behalf of his practice and that certain monies had been paid to the practice in respect of libel cases involving the Irish Press Group. It had also been established by the prosecution, without demur on the part of the applicant, that the monies had not been applied for the purpose for which they were provided to the practice and that documents, purporting to show the use to which the monies had been used, had been forged and sent to the Irish Press Group.

In September 1991, an inquiry had been instituted by the Irish Press Group as to how the applicant had conducted libel cases on its behalf. At a meeting the applicant had produced, to representatives of the newspapers, certain documents purporting to show how the funds had been applied; it was further shown, and was not challenged by the applicant, that the documents had not been signed or prepared by the persons whose alleged signatures were on them.

Following these inquiries, the applicant was interviewed by the Garda Siochana fraud squad in the presence of his solicitor. Evidence was adduced that, at the interview, the applicant had admitted that he had signed the forged documents, though he denied responsibility for their preparation.

Mr Justice Keane said that, on the foregoing facts, the applicant had made four submissions in making the instant application for leave to appeal against his conviction and sentence. It was argued that the evidence adduced during the trial did not establish the necessary mens rea on the part of the applicant to show an intent to defraud or deceive as required by the Forgery Act 1913. In this respect, it was contended that there was no evidence that the applicant had benefitted personally from the funds and that the prosecution had failed to negative the possibility that the applicant's partner may have been responsible.

Mr Justice Keane said that the court was satisfied that this ground was unsustainable; on the unchallenged facts of the case, there was ample evidence entitling a jury to conclude that the applicant had forged the documents himself and furnished them to the Irish Press Group in an attempt to show that there had been no misapplication of the funds which it had transmitted to the practice to deal with the relevant libel proceedings. To show the requisite mens rea, it was not necessary to establish that the funds had ultimately benefitted the applicant.

The applicant's second ground concerned the evidence as to the signatures on the impugned documents. It was submitted that a handwriting expert ought to have been called to say that the signatures were in the applicant's handwriting and that it was not enough simply to offer evidence that certain persons recognised the signatures as being in the applicant's handwriting. It was also argued that, in the absence of expert evidence on this point, the trial judge should have warned the jury of the potential dangers of acting on this evidence.

Mr Justice Keane said that this submission was also unsustainable. He noted that each of the witnesses had stated that they were familiar with the applicant's handwriting and that the applicant himself had acknowledged that he had signed the documents when interviewed by the Gardai.

The applicant's third submission concerned an answer given by a member of the Garda Siochana in cross examination during the applicant's trial. The garda had indicated that, in the course of interviewing the applicant, during the investigation of the alleged offences, he had undertaken a certain course in an attempt to establish certain facts which would indicate the applicant's innocence ..."; it was submitted that this comment was inadmissible or prejudicial evidence of that garda's opinion as to the guilt or innocence of the applicant which should have led either to the jury's discharge or to a stringent warning to the jury to disregard the statement.

Mr Justice Keane said that this submission was also unsustainable. The comment had been made in the course of a lengthy cross examination and, accordingly, the possibility that the jury could have drawn an inference from it adverse to the accused was so extremely remote as not to require the discharge of the jury or even a specific warning in the judge's charge to the jury.

The applicant's fourth submission was that, in the event that the conviction was upheld, the sentence of five year's penal servitude was excessively severe. Counsel for the applicant had referred, in this respect, to the applicant's previous good character and the serious consequence of the conviction itself in that the applicant could not practise as a solicitor again. Mr Justice Keane said that the court was satisfied that the trial judge had not erred in principle in the sentence he imposed and therefore would not interfere with the length of the sentence. In all the circumstances, the application for leave to appeal was refused.

Solicitors: McCartan & Hogan (Dublin) for the applicant; Chief State Solicitor for the respondent.