The Gazette 1989

GAZETTE

DECEMBER 1989

could have been eliminated quite easily. By and large the approach adopted in the 1916 Act in this con t ext is preferable to the approach adopted in the 1989 Bill.. C. PROPERTY STOLEN IN THE UN I TED K I NGDOM. By a curious anomaly property stolen in England, Scotland or Wales was not " s t o l en" property for the purposes of the offence of re- ceiving stolen property under the 1916 Act. This arose from a Supreme Court interpretition of the Adaptation of Enactments Act 192 2. 36 This was clearly unsatis- factory. 37 It gave rise to the ridiculous situation that a person could be charged in the Republic of Ireland w i t h receiving stolen property in the Republic of Ireland if that property was stolen any- where else in the world except England, Sco t l and or Wales. Section 7 (1) of the 1989 Bill removes that anomaly. This is a welcome change. The sub-section states that handling stolen property will be an offence here if the prop- erty was acquired in a way which "amounted to an offence where and at the time the property was stolen". ". . . property stolen in England, Scotland or Wales was not "stolen" One cannot help wondering how- ever what the situation will be where the stealing has ceased to be an offence where it was stolen at the time the property was handled here. It would surely be anomalous if a person could be convicted in this country of handling property which was originally acquired abroad if the means by which it was acquired has ceased to be an offence at the time the property was handled here. 38 However, a literal reading of the 1989 Bill would seem to give rise to that result. D. ATTEMPTED RECEIVING If a person is to be convicted of handling stolen property then obviously the property must be property for the purposes of the offence of receiving stolen property under the 1916 Act."

stolen in the first place. But what if the accused believes the property is stolen and acts dishonestly and handles the property (within the definition of handling in the 1989 " . . . should it not be possible to charge [the accused] with a separate offence of attempting to handle stolen property?" Bill)? The accused in this case obviously did not succeed in com- mitting the offence of handling stolen property, but should it not be possible to charge him with a separate offence of attempting to handle stolen property? This question came before the House of Lords in the case of Haughton -v- Smith 39 In that case the House of Lords held that in circumstances such as this the accused could not be found guilty of attempting to handle stolen property. Apparently the basis for this decision is that a person cannot be accused of a t t emp t i ng the impossible. 40 That problem was solved in England by the passage of the Criminal Appeals Act 1981 which allowed the accused to be convicted of attempting to handle stolen property in such circum- stances. There is nothing in the 1989 Bill wh i ch corresponds with the Criminal Appeals Act 1981. It is difficult to know under what circumstances a person could be conv i c t ed in this jurisdiction of attempting to handle or receive stolen property. This is a matter wh i ch certainly needs attention. E ALTERNATIVE VERDICTS Section 81 of the 1989 Bill pro- vides that a person charged with larceny, embezzlement, fraudulent conversion, obtaining by false pretences or blackmail may be found guilty, as an alternative, of handling stolen property if the evidence proves handling. This is to be welcomed. It overcomes the type of difficulty illustrated by cases such as O'Leary -v- Cunningham 41

F. SHI FT IN THE EVIDENT IAL BURDEN Section 3 of the 1989 Larceny Bill repeals Section 33 of the 1916 Act and replaces it with a new Section 33. The new Section 33 (2) (b) states "where a person (1) receives stolen property, or (2) under- takes a retention, removal, dis- posal or realization by or for the benefit of another person, or (3) arranges to do any of the things specified in sub-paragraph (1) or (2) of this paragraph in such circumstances that it is reason- able to conclude that he knew or believed the property to be stolen property he shall be taken to have so known or believed unless the court or the jury, as the case may be, is satisfied having regard to all the evidence that there is a reasonable doubt as to whether he so knew or believed". " I t certainly does not discharge the prosecution from the onus of proving that the accused is guilty in all the circumstances." Inevitably there has been some debate about the exact effect of this.' On the surface it could be argued that it shifts the onus of proof on to the accused, if that were its effect it would certainly be controversial. On balance however, it does not appear to do that. It certainly does not discharge the prosecution from the onus of proving that the accused is guilty in all the circumstances. There is, it is contended, still no onus on the accused to provide any explana- tion. The effect of Section 33 will be to allow inferences to be drawn if the accused does not given an explanation or if his explanation is not satisfactory. It would appear that what the legislature are doing in Section 32 (2b) is putting into statutory form the decision of the Irish Court of Criminal Appeal in The People AG -v- Og/esby: 42 Conclusion It can be seen that the 1989 Bill is far from perfect. However, it does provide some much needed and

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