The Director of Public Prosecutions (at the suit of Garda Martin Hogan) (prosecutor) v Bernard Byrne (defendant).

District Court - Jurisdiction - Facts possibly disclosing commission of offence other than that with which the accused has been charged - Whether district judge can of his own motion substitute an alternative charge - Larceny Act 1990, section 8.

Criminal Law - Larceny - Whether accused guilty of larceny in circumstances where he initially had lawful possession of the goods - Larceny Act 1916, section 1(1).

The High Court (before Mr Justice Morris); judgment delivered 17 November 1998.

It was not the function of a district judge to seek the consent of the Director of Public Prosecutions to alter the offence with which the accused was charged so as to ensure that he was convicted of some offence. The initiative for the substitution of another offence for that charged should come from the DPP and the district judge could then rule on that application.

Mr Justice Morris so held in expressing his views on a consultative case stated from the District Court in the course of a criminal trial and in declining to answer specifically the questions in the case stated.

Feichin McDonagh BL for the prosecutor; Dermot Kelly SC and Mark Harty BL for the defendant.

Mr Justice Morris said that this was a case stated from the District Court. The defendant had been charged with an offence contrary to section 2 of the Larceny Act 1916 as amended by section 9 of the Larceny Act 1990. The Director of Public Prosecutions had consented to a summary trial and the accused was tried before Judge Delap.

The facts giving rise to the charge were that a bag containing vouchers and approximately £700 in cash was placed in the cash office of Dunnes Stores in the Northside Shopping Centre. On 28 December 1997 it was discovered that the bag was missing. After an extensive search, the bag and its contents were found in a security room to which only the security staff, of whom the defendant was one, had access. The contents were removed and replaced with newspapers, and surveillance was mounted. On the following day, the accused entered the room and took possession of the bag. He was confronted by the security manager.

When questioned by the Garda, he said that when he had gone to the cash office for change, he had been given an extra bag of money which he realised he should not have. He said he had left it in the security room and had returned for it with the intention of telling the manager that he had found it in the men's changing room.

In the case stated, the District Judge said that he was of the opinion that the accused was aware "at an early stage" that he should not have the money, that he had hidden the money and intended to keep it, and that he intended to convict him. However, the District Judge stated that he was unsure whether he should convict the accused of the charge on the charge sheet or of an alternative charge. He therefore sent forward a consultative case stated to the High Court asking (i) Was the accused guilty of any offence under the Larceny Act 1990 in view of the provisions of section 7 of that Act or of an attempt to commit an offence? (ii) If the answer to question (i) is "yes", should the charge be amended to refer to "the contents of a bag, the property of Dunnes Stores" or similar wording instead of the words "cash or vouchers valued at £1,210.11"? (iii) If it were an appropriate case to substitute an alternative charge under section 8 of the Larceny Act 1990 would he again request the consent of the DPP before adopting that course?

Mr Justice Morris said that the appropriate way to deal with the case stated was to express his views on the case generally without expressing specific views on the questions stated. It was the function of the district judge to try the accused of the offence with which he had been charged. While the facts which emerged in the case might well give rise to a conviction of the accused of a different offence, it was not the function of the district judge to seek the consent of the DPP to alter the offence with which the accused was charged so as to ensure that he was convicted of some offence. The initiative for the substitution of another offence for that charged should come from the DPP and the district judge could then rule on that application. In the present case, the DPP had indicated that he had no view on the matter and therefore the question of substituting or altering the charge did not arise.

Mr Justice Morris said that in relation to the guilt of innocence of the accused of the offence with which he was charged, it would be inappropriate to interfere with the jurisdiction of the district court. However, the district judge had made certain findings of fact which raised issues of law. It appeared that the district judge had found that the accused only became aware that he should not have the bag after it came into his possession. Section 1(1) of the Larceny Act 1916 provides that a person can be guilty of stealing notwithstanding that he has lawful possession of the goods if "being a bailee or part owner thereof, he fraudulently converts the same to his own use or to the use of any person other than the owner". In "Chitty on Contracts: Specific Contracts" at page 99 "bailee" is defined as "any person . . . who otherwise than as a servant either receives possession of a thing from another or consents, to receive or hold possession of a thing for another upon an undertaking with the other person either to keep and return or to deliver to him the specific thing or to (convey and) apply the specific thing according to the directions antecedent or future of the other person."

In this case the accused was not an employee or servant of the owner of the cash. Returning to the provision in section 1(1) of the 1916 Act, Mr Justice Morris said that there was an issue of fact as to whether the accused converted the bag and its contents to his own use. The facts disclosed that the accused brought the bag and its contents to the room used by the security staff and to which he did not have exclusive access. It might well be that the district judge would consider this to be an act of conversion to his own use. On the other hand, he might consider that there was no such act since the accused did not have exclusive access to the room.

The events of 29 December 1997 were relevant only insofar as they threw some light on the general case, but the accused had not been charged with any offence on that date.

Solicitors: Chief State Solicitor for the prosecutor; H. C. Browne & Co (Dublin) for the defendant.