The Gazette 1983

GAZETTE

JULY/ AUGUST 1983

CRIMINAL LAW Appeal to Court of Criminal Appeal on the grounds that two separate incidents should have not have been included on one Indictment. Visual Identification not adequately dealt with by the trial judge, and similar fact evidence should have not been admitted. The Appellants, were convicted in a joint Trial in Dublin Circuit Court, for the larceny of, and the attempted larceny of, clothes from an outfitters shop in Thurles, Co. Tippearary on two separate occasions. A third brother, who was convicted at the same time, did not appeal. The facts of the case were that the Appellants entered an outfitters shop in Thurles on 26 February 1981 and 10 March 1981. On the first occasion, two men came into the shop, one of whom was carrying a cardboard box at his chest. A third man, who entered after them, approached a counter at the other end of the shop, where he received attention. All three men left the shop without purchasing anything. A short time later, it was discovered that six leather jackets and two suits were missing. On 10 March 1981, an incident which was in all ways similar to the incident described above occured in the same shop. On this occasion the men at the back of the shop were attended and left the shop a short time later, followed by the third man. No purchases were made and there was nothing missing from the shop. The Proprietor of the shop watched them for a short time and then notified the Gardai. Meanwhile another member of the staff followed them and eventually pointed them out to the Gardai in another shop. A number of Submissions were made on behalf of the Appellants, all save one was rejected by the Court. 1. That both counts, the first of Larceny on 26 February 1981 and the second of attempted larceny on 10 March 1981, could be included on the same indictment. The charges formed part of a series of offences of the same or a similar character and their inclusion together on the Indictment was covered by the Statutory Provisions Section 5 and Section 6 (3) of The Criminal Justice (Administration) Act, 1924, Rule 3 of the First Schedule to the Act and Section 18 of the Criminal Procedure Act, 1967. Citing these provisions, the Court rejected the submission that the Prosecution was entitled to add only counts relating to the same incident and that the second count should not have been added, because this allowed evidence of a system and two episodes could not establish a system. 2. That the Trial Judge, in the exercise of his discretion under Section 5 of the Criminal Justice (Administration) Act, 1924, was correct in refusing to direct separate trials. The Court cited

with approval the principle laid down in the cases of Harris v. The Director of Public Prosecutions [1952] 1AII E.R. 1044 and the case of Mackin v. The Attorney General for New South Wales [1894] A.C. 57. In the latter case, Lord Herschell stated at page 65. "It is undoubtedly not competent for the Prosecution to adduce evidence tending to show that the Accused has been guilty of Criminal Acts, other than those covered by the Indictment, for the purpose of leading to the conclusion that the Accused is a per- son likely from his Criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of another crime, does not render it inadmissible if it be re- levant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the Indictment were designed or acidental or to rebutt a Defence which would otherwise be open to the Accused." In the present case, the Court found that the evidence that was given of the first incident was relevant to the second count to show that such a box could be used for the purposes alleged in the second count. 3. That in respect of the first count, the larceny of clothing on 26 February 1981, the Appeal should be allowed on the ground that, whilst the Trial Judge dealt very fully with the dangers of visual identification, he did not specifically direct the attention of the Jury to the evidence relevant to the identification of the Accused on the first count. The Court cited the case of The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 and the case of Harris v. The Director of Public Prosecutions [1952] l.AII E.R. 1044. In the present case, the Court held that the Jury did not get any assistance from the Trial Judge to guide them in the careful examination of the evidence of identification as required by the principles laid down in Casey and further the Trial Judge seemed to have treated the evidence as cumulative. In addition, the Trial Judge stated on two occasions that the case for the Prosecution did not rest on visual indentification alone, but failed to indicate what other aspects of the evicence supported the Visual Identi- fication of the Accused in respect of the first count. 4. The Court rejected the submission that the Trial Judge did not direct the Jury to consider the evidence relevant to each. count separately ánd did not, himself, when dealing with the evidence, indicate which proportions of

Recent Irish Cases

JOINT TENANCY Agreement by Joint Tenants to sell property does not of itself sever the joint tenancy - there must be an intention to sever. A Testator left a farm to two sons as joint tenants. They fanned jointly for five years with earnings being paid into a joint account until one brother became ill and they decided to sell. A contract for sale was signed by the personal re- presentative of the Testator as no assent had been made in favour of the two sons. One of the joint tenants died before completion of sale. The sale was completed by the Testators personal representative. The Plaintiff, one of the next of kin of the deceased joint tenant claimed that the joint tenancy on which the lands were held by the deceased and the defendant (who was also personal representative of the deceased) was severed by the sale of the lands before the death of the deceased. The defend- ant claimed that the purchase money re- presenting the sale of lands passed to him in his personal capacity as surviving joint tenant. The Plaintiff claimed that the monies accrued to the estate of the deceased. It was alleged that the agreement for sale severed the joint tenancy and the surviving joint tenant was not entitled to the entire proceeds by virtue of the right of survivorship. Held: In order to affect a severance there must be an intention to do so. The dictum of O'Connor L. J. in Hayes Estate [1920) l.I.R. 207 at p. 211 to the effect that "a mere agreement by persons entitled as Joint tenants to con- vert their property from one species to another does not operate to work a severance" was approved. The burden of proof lies on the person contending that there had been a severance. From the facts of the present case there was no evidence of an intention to sever. (Eugene Byrne v. Patrick Byrne - The High Court (McWilliam J) -18 January 1980 - unreported). Rory McEntee

xxv