An Chúirt Achomhairc Choiriúil
The Court of Criminal Appeal
Bill number 0321DU of 2011
Appeal number 342 of 2012
Charleton J
Moriarty J
Kelly J
In the matter of section 63 of the Courts of Justice Act 1924
The People (at the suit of the Director of Public Prosecutions)
Prosecutor/Respondent
and
Carol Hawkins
Accused/Appellant
Judgment of the Court delivered by Mr Justice Charleton on the 29th day of October 2014
1. After an 18 day trial, the appellant was found guilty by a jury in the Dublin Circuit Criminal Court of 181 counts of theft of cheques having a value of €2.8 million approximately between 2006 and 2008. On the 6 July 2012 she was sentenced to seven years imprisonment in respect of these offences by the trial judge, His Honour Judge McCartan. She now appeals against that conviction. The statement of offence in each count was alleged to be theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. As a sample, the particulars of offence as stated in count number 49 operate as a template for all of the other counts in the indictment. This reads:
Carol Hawkins did, on or about the 21st day of March 2007 in the County of the City of Dublin, did steal property, to wit, Bank of Ireland cheque number 000963, drawn on bank account number [redacted] in the name of ‘Adam Clayton Fitzwilliam Account’ drawn in favour of J. Hawkins in the amount of €21,748.16, the property of Adam Clayton.
Grounds of Appeal
2. Each ground of appeal will be dealt with separately. In summary it has been comprehensively argued on behalf of the appellant:
I. That inadequate disclosure was made by the prosecution in the context of the burden being faced by the defence in testing the evidence adduced in support of the charges;
II. That the main prosecution witness was allowed to hear other prosecution evidence prior to giving his own testimony and should have been excluded from court and in addition that leading questions were asked of him;
III. That the production orders necessary to inquire into and adduce evidence of the appellant’s bank accounts was improperly obtained;
IV. That an admission of other wrongdoing made by the appellant to the main prosecution witness, her employer, had been improperly admitted;
V. That a direction should have been granted at the end of the prosecution case because the chain of evidence in respect of the documentary exhibits supporting the charges had not been properly proven;
VI. That the charge is not properly founded in law as fitting the facts alleged; and
VII. That there was no sufficient evidence to put before the jury and that the conviction is therefore unsafe.
Background
3. The main prosecution witness in this case, and the victim of the thefts, is a musician called Adam Clayton.
4. In 1992, Adam Clayton was on holiday over the Christmas vacation and visited an island in the Caribbean. There, he stayed at a resort that consisted of an island with about a dozen cottages on it. The people running the hotel were the appellant Carol Hawkins and her husband John Hawkins. At that time, they had two young children. Falling into conversation with them, it became apparent that they wished to return from the Caribbean and to live somewhere in Europe so that they could bring up their children, and, in particular, find an appropriate place to educate them. Adam Clayton lived on his own at a house in the Rathfarnham area of south Dublin. Because he was doing so much touring with the band U2, he habitually found that on his return he might have failed to pay bills for such things as electricity or telephone and that his house would be cold, cut off from its heating supply, or that the telephone would not work because it had been taken off service. After thinking about it for some time, he decided to employ the Hawkins couple; the appellant to act as his housekeeper, and her husband because of his experience as a chef, to prepare meals occasionally if he had people to dinner and to drive him to the airport the odd time. Over several years, the services which they gave were regarded by him as highly satisfactory. They lived in an annex separate to his house. In the early days, while he was travelling away, he would sign cheques to cover the costs of various household expenses. Eventually, this was seen by him as him as impractical. In consequence, the appellant was given signing rights on two sets of accounts on dates between 2000 and 2008. One of these was called the Danesmoate Farm’s account, and the other was called the Fitzwilliam account. The Danesmoate Farm’s account had a credit card attached to it, which the appellant also had the use of, and a laser card was attached to the Fitzwilliam account which the appellant was also entitled to use. Of the 181 counts in the indictment, 84 were in respect of the Danesmoate Farm’s account and 97 were in respect of the Fitzwilliam account. No charges were brought in respect of the credit card or laser card associated with either account. Instead, every count was in respect of the theft of a cheque. Adam Clayton had a management company which ran all of his touring, studio dates and recording negotiations and the collection of royalties. He employed two accountants in turn, and their job was to oversee his accounts and expenditure. As time went on the appellant was given extra responsibilities beyond her work as housekeeper including such personal arrangements as booking flights and discharging other consequential outgoings of Adam Clayton. She was also required to take care of the household bookkeeping. His accountant at the relevant time provided her with the software for a computer programme called QuickBooks. Of the cheques in question in the indictment, the vast majority of these were not entered onto this system. One hundred and seventy-seven of the cheques out of the 181 charged in the indictment had no entry made in respect of them. The cheque stubs were analysed. Out of the 181 cheque stubs, the appellant was noted as the payee of one cheque, but no amount was noted. A further 18 cheque stubs had no noted payees. Four stubs noted the payees, one of which was false, one was illegible and two related to Bank of Ireland credit card services.
5. Adam Clayton was adamant in his evidence that the only authority which the appellant had to sign cheques on his two accounts was in respect of his household expenses and such personal outgoings as she was directed to pay on his behalf. The appellant and her husband were paid approximately €4,000 per month for discharging their duties.
6. Nonetheless, the prosecution proved that other expenditures had been made. Much of it was most unusual. One of the exhibits produced was an insurance schedule from a firm called Sean Barrett, Bloodstock Insurances Limited. As of 11th November, 2005 this listed a schedule of 22 horses that were insured under a bloodstock schedule called Plato Racing. The horses included Javana, valued at €10,000; Academie Royale, valued at €10,000; One Great Lady, valued at €30,000, Let’s Dance, valued at €10,000; Ionizer, valued at €10,000; Royal Opera, valued at €10,000; Manipulator, valued at €39,000; Madam Mosaic, valued at €5,000; Cheonmado, valued at €20,000; Valour Lady, valued at €10,000. Other unnamed fillies were in training, including one valued at €51,000. A forensic examination of the bank accounts of the appellant over the relevant period showed horse racing expenditure at €434,000, credit card payments of €172,000, transfers to a family member of €48,000, the purchase of a car for €21,000, fees to the New York Film Academy of €22,000, transfers to another family member of €19,000 and rent on a New York apartment of €17,000. In addition, an account held by the appellant jointly with another family member showed the purchase of an apartment in New York for €350,000, credit card payments of €104,000, cash withdrawals of €97,000, various other horse racing expenditure of €95,000, travel expenses of €36,000 as well as other sums paid. An analysis of the average annual credit card expenditure during the relevant period established a figure of €304,000. This included department store spending of €330,000 and spending in restaurants and hotels of €225,000 with €153,000 expended on airline tickets. In addition there were cash withdrawals by way of the appellant’s personal credit card of €64,000. The sums have been rounded down to the nearest thousand.
7. One of the duties of the appellant was to pay the travelling expenses of Adam Clayton. The flights were booked by her through a firm called Travel Care and the invoices would be sent to the appellant for payment. Nothing was noticed of the extraordinary expenditure going on through Adam Clayton’s two accounts. His life was entirely devoted to his musical pursuits and touring. He left the management of his band in the hands of his firm and his household and some of his personal expenditure in the hands of the appellant. In 2008 Adam Clayton became worried that a particular payment in respect of his legitimate expenses had not gone through. His concern was whether a creditor had been paid. He checked this with his accountant. His accountant checked the matter with the appellant. Both were chasing through whatever records existed in order to attempt to assure Adam Clayton that the relevant, and relatively small, debt had been discharged. As he described it in evidence, there was some tension around this payment. The appellant then contacted him and asked to meet up. As he was abroad on work, she flew to Nice, in the south of France, and met him in the Radisson Hotel. This is how Adam Clayton’s evidence emerged at the trial:
She essentially confessed that she had been booking herself flights to visit her children on my account at Travel Care... [S]he also mentioned that she had been suicidal and had taken an overdose.… I was concerned for her health and recommended that she see a therapist and I, in fact, got her the number of a therapist locally. On the matter of money, I said - I accepted that she was a distressed woman. … [H]er marriage had broken up and her children gone away and I - I said we would have to verify the amounts of what she had been claiming and that was it. …She was vague. She said in the region of €13,000 to €15,000 … She just alluded to her overall stress at the break up of her marriage … I was very taken aback. It was, to my mind, completely out of character. She had my absolute trust. We’d been together a long time. We’d been working together and she had been very conscientious and good about protecting my position. I felt she always looked after my money and, on many occasions, accused others of being greedy. So, I was extremely surprised. … I mean, I was extremely rattled by it, plus I was away so I couldn’t really - I had no real access to anything and I was always - also somewhat mystified by the fact that there was this other payment that hadn’t gone through and I couldn’t figure out why she was confessing to this. And I asked [my accountant] to be very diligent in confirming that this was the only amount of money that was missing. He subsequently came back to me, having done an audit, or claiming he’d done an audit, and said that, indeed, this was the sum of money and that, in fact, it wasn’t €15,000, I think it was €13,000. […]
I assumed he had checked everything to do with the financial arrangements that […] Mrs Hawkins was involved in, and that he was then able to say categorically that this was the only sum of money that had been stolen from me. … I had to weigh up the long years of loyalty and I took her at her word and on the basis that she was the person I thought she was, and that this was a momentary aberration, due to an emotional upset. So I was […] happy to stand by her but to take the advice of [my accountant and my solicitor] that she needed to be removed from any banking arrangements.
8. In consequence of what had been revealed up to that point, on the 30th October, 2008, Adam Clayton wrote the appellant a letter detailing a new limitation on her responsibilities, that she no longer could sign his cheques, and he asked her to sign it and to return it to him. This she did. The operative part of the letter reads as follows:
When we spoke on the telephone on the 24th September, I told you that I would be writing formally to you in connection with the events which have taken place over recent weeks. On the 9th September you came to see me in France and told me that you had, without my knowledge or permission, withdrawn several sums of money from my Danesmoate number 1 and number 2 accounts, held at Bank of Ireland Private Banking in Dublin, and had appropriated these sums for your own use and benefits. You said that you were not certain of the amount, but thought it was approximately €15,000. I was, of course, upset and concerned and I had immediately taken advice from [my accountant and my solicitor] … As a result of that advice, I have, as you know, removed you as a signatory on my bank accounts and [my accountant] has commenced an investigation into the financial position. You also know that the legal advice which I have received is to the effect that, given the gravity of what has happened, I am entitled to dismiss you from your position without notice. We have had a long working relationship and that and the fact that you have been going through a period of great personal strain has influenced me in my decision not to terminate your employment. You will understand, however, that it will be necessary to make some changes to your duties and to the way in which you carry them out. The most important changes will be that you will no longer directly give instructions to the banks for withdrawals and payments from my accounts, and that you will not be a cheque signatory. [My accountant] will institute a new system which he will explain to you in the near future. Broadly speaking I alone or [the accountants] will give the instructions and sign cheques. It will, however, remain your responsibility to manage the orderly administration of my affairs. [My accountant’s] investigation has revealed a deficit of €13,585.19 and you have offered to make restitution of that sum to me at a rate of €500 per month. I have agreed to accept that offer and you will no doubt make arrangements with [my accountant] for payments to be made. I hope that you will now be able to - that we will now be able to put this matter behind us and that we can resume working together normally. However, I made the decision which I have communicated to you in this letter based on your assurances (a) that you have made a full disclosure, (b) that you will fully cooperate in [my accountant’s] continuing inquiries and the implementation of the new working procedures and (c) that you will make full restitution in accordance with the arrangements which we have agreed. You should understand that if, at any time, these assurances are found to have been breached, I reserve the right to revoke these decisions immediately. Finally I must tell you that it is possible that your actions will have consequences which are outside my control. You should therefore consider taking your own legal advice before signing this letter.
9. All of the above evidence, in one form or another was before the jury trying this case. There was also other evidence that was not led by the prosecution. From October 2008 to October 2009, the year after the Nice meeting, the laser card on the Fitzwilliam account was still available to the appellant. Some €300,000 was expended through the use of that card through cash withdrawals and laser transactions. This fact was not revealed to the jury. No charges were preferred in relation to the transactions made during that period.
Disclosure
10. The prosecution should make such disclosure as will enable the defence to properly challenge the credibility of any witness called by the prosecution; in order to give a reasonably complete picture of the background to the prosecution case; and to enable the defence to mount such defence as has been indicated will be made in answer to the charge. The difficulty with the submissions made on behalf of the appellant in this case is that, searching through the transcript, it becomes impossible to know what answer was being made to the various charges. On the one hand, it has been suggested that the Danesmoate and Fitzwilliam accounts were operated in such a way that it would be reasonable to infer that these were joint accounts as between Adam Clayton and the appellant. As against that, this allegation was never specifically put to Adam Clayton when he was giving evidence. This suggestion is lacking in reality. It is difficult to know how a person who has not contributed in any way to the monies in an account would be entitled to draw at will from those funds. On the other hand, it is suggested that there was implied consent to use the accounts as she wished. These defences were mounted within the limits of instructions, and with a proper sense of responsibility, by counsel on behalf of the appellant at the trial. It is clear from the nature of the cross-examination conducted, and from the submissions properly made before this Court, that such instructions as came from the appellant were extremely limited. At no stage was a question put to Adam Clayton that, for instance, in consequence of the excellent work done by the appellant in relation to his affairs that he specifically suggested to her that she might use one or other of the accounts to buy a horse or a car or an apartment or whatever. Instead, in circumstances where there was a lack of instructions as to specifics, counsel for the defence made a general challenge to the credibility of the prosecution case. This was done properly. An example of the cross-examination suffices:
Q. Well, I am saying it to you that anybody who goes to go and see even a concert in Croke Park will meet an usher or a steward who has personal responsibility … to make sure you don’t get in unless you’ve got sixteen passes. That’s the world you live in; isn’t that right?
A. When I am working.
Q. That’s the world you live in, Mr Clayton …?
A. When I am working. I have a perfectly normal regular life the rest of the time.
[…]
Q. Okay, well some in more rarefied atmospheres than others?
A. Only when I am working.
Q. Okay. Well, I am asking you this, whether you would accept that you are the type of man that wants to issue this instruction “get it done”, that’s my impression of you, you are a “get it done” man?
A. From time to time yes.
Q. Well I put it to you this way: do you like people to bring you problems or solutions?
A. I think problems are part of life and you have to deal with them.
Q. That’s why you have professional advisors, I presume?
A. That is.
Q. So I am suggesting to you, in common with most people who have the luxury, if you can put the problems and let someone else sort it out, that’s your attitude towards it?
A. I think you have to take personal responsibility for some of these things.
Q. Don’t you just, Mr Clayton, don’t you just?
A. Yes.
Q. And I am suggesting to you that what this is manifestly evident of is the failure to take personal responsibility. What do you say to that?
A. I disagree.
Q. And I am suggesting to you that the expenditure that she has put there and has been put out in boxes and boxes of materials around here was material that was, whether it was a pair of shoes for Carol Hawkins so that she could walk down to get a paper for you, it was as much to your benefit and the idea of anything to do with horses and the rest of it was completely to do with John Hawkins, nothing to do with her at all, and you knew that?
A. I am not here to discuss that.
Q. Well, you see the problem is that the jury have a number of cases in their - their 181 [counts on the indictment] with “J Hawkins” written down. You understand that she is not J Hawkins?
A. Yes.
Q. And he could be called to account at some stage in the future; wouldn’t you accept, all things being equal?
A. That’s a job for the DPP.
Q. Yes well, I am suggesting to you that when you know full well and when you are being asked to look at these various documents and you saw these horses and the expenditure that, in fairness, you could have turned to them and said that’s not Carol, that’s John, you could have done that?
A. I don’t know who was involved in it. As far as I know they both owned these horses.
Q. Yes. Well, certainly two names might have appeared here and there, but you knew who the interest in horses lay with, didn’t you? Well the jury heard what you said?
A. I think the fact of the matter is that Carol Hawkins wrote these cheques into her own account. What happened with the money, whether it was spent on horses, is not really relevant.
Q. Not relevant okay. And to put it to you that the expenditure that was made during the period of time that she was working for you was done in whatever, whatever way she did, whatever training she had, she learned it at the coalface working for you; isn’t that right?
A. She was using my accounts to pay her bills, and that was not a requirement of the job.
(Transcript day 13 pages 31-33)
11. As a matter of proper procedure, in order to ensure that proper disclosure is made submissions will be required before the trial court from both the prosecution and the defence. The prosecution should summarise what their case is. Here, the case made was that access and signing rights on the two relevant accounts were given by Adam Clayton to the appellant for the purposes of discharging his household expenditure and other disbursements on instructions. These instructions did not include the purchase of the luxury items that were solely for the benefit of Carol Hawkins or persons associated with her. The defence were entitled at that stage, and should have had instructions been available, put forward in aid of disclosure the broad outline of such case as they were to make at the trial. Instead, it was made clear that a general challenge was to be mounted. Had it been the case that the answer to this charge was that Adam Clayton had authorised additional payments beyond salary, that case should have been outlined at the disclosure application. Instead, by letter the disclosure request sought:
All household and work accounts, receipts, expenses and other documentation showing the income and expenditure of [Adam Clayton’s] accounts for his household and business from 2004 to [2012], including but not limited to food, entertainment, accommodation and travel expenses and other expenses.
The basis for this request was put that this voluminous documentation would form the basis of “an analysis of the extent of the expenditure that [the appellant] had carried out and to see whether these expenditures were paid for by [the appellant] out of the funds which she was alleged to have misappropriated”. This was entirely irrelevant to the issues canvassed at the trial and bore no relationship to the instructions as to what the defence was to be. Disclosure had already been made of all documents uplifted from the appellant’s and Adam Clayton’s bank accounts; the accounting software operated by the appellant within Adam Clayton’s home; all documents seized in a search of the appellant’s house; all relevant cheque stubs and bank statements; copies of all computer hard drives taken from the laptops of the appellant; the forensic analysis conducted on behalf of the prosecution as to the expenditure resulting from the money going into the appellant’s accounts and the working books in relation thereto; documents in the possession of the accountants of Adam Clayton and their analysis; and the documents in relation to the litigation between Adam Clayton, the appellant and a firm of accountants on the issue of how this had not been spotted. This disclosure was more than adequate in the context of the definition of the elements of the prosecution and defence cases. Were the case to be made that the expenditure was extraordinary but was authorised, then disclosure in relation to that would have been appropriate. But the case has to be outlined, at the least.
12. Unnecessary and oppressive requests for disclosure should not be granted. The orders made in this case by the trial judge were correct in the context of the obligation of the prosecution to show their hand and to not conceal matters of relevance. Further, the ruling by His Honour Judge Nolan refusing the request on behalf of the defence that all of Adam Clayton’s expenditure on everything to do with his private life was not relevant to this case was correct, as the appellant was not involved in discharging his business expenses or personally incurred expenditure. This had nothing to do with the way that the case was to be run.
13. This Court would approve the statement of the Court of Appeal of England and Wales in R v Brown [1995] Cr App R 191 that particular care should be taken to ensure that disclosure is not used as an instrument of oppression or for the purposes of obfuscating the true nature of what the prosecution case and the defence answer will be at trial. In that case Steyn L.J. stated at page 202:-
Finally, we would make a few observations about the way in which the disclosure system works and a possible way forward. The first relates to the undoubted fact that defence lawyers sometimes bombard the prosecution with requests for thousands of documents will little regard to their relevance … The only answer is to be found in a proper application of the criterion of relevance. The extent of discovery permitted in a particular case, in the light of the issues in that case, must be left to the good sense of the trial judge, who must … discourage unnecessary and oppressive requests for discovery.
14. The judgement in R v H [2007] 2 AC 270 at 288 also refers. It may be argued that the defence have no obligation of disclosure. A criminal trial, and any preliminary application in relation to disclosure, is about finding out what the prosecution case is and what answer is being made to it by way of defence. Certainly, it is the case that, if a client chooses, the prosecution case may simply be challenged as to the credibility of witnesses without any positive case being put forward on behalf of an accused person. That, however, is not a course which is generally taken. Such instructions are highly unusual. Here, the decision is with the client. Counsel appearing on behalf of an accused is always acting on the instructions of the client. The task of counsel is neither to accept nor to reject their client’s case but to put the case of the accused to witnesses as it is relevant to their testimony. Cross-examination is not at large. It is directed to such elements of defence as counsel are instructed by their client. Consequently, in a case such as this, where the instructions were simply to challenge the credibility of the prosecution witnesses, counsel conducted their task properly. Had it been the case that counsel had instructions that, for instance, Adam Clayton had made a definite decision to reward the appellant on occasions by suggesting that she could pay many thousands of euros into her accounts and could expend these in such way as she wished, or could buy horses or other luxury items as a form of bonus, then this would have had been put during the course of the cross-examination of Adam Clayton by counsel appearing on behalf of the appellant. This was not done. Counsel’s instructions were limited and, properly, the cross-examination was conducted on that basis.
15. This ground of appeal is therefore rejected.
Witness Exclusion
16. The appellant argues that the trial judge erred in fact and in law in refusing to make a witness exclusion order, and argues that this allowed the witnesses to adapt and/or alter their evidence in accordance with the evidence given by other witnesses in the course of the trial. In particular, the presence of Adam Clayton for some of the evidence of the forensic accountant who analysed the transactions on the appellant’s bank accounts and related these to the cheques paid into those accounts from Adam Clayton’s accounts, was argued to be a circumstance which in principle, if not in reality, distorted the reliability of the prosecution evidence, thus rendering the conviction unsafe. An application was made to the trial judge to exclude Adam Clayton during any evidence of accountancy analysis, as it was submitted that there was a real risk that the witness would tailor or adapt his evidence. The court, the jury, the prosecution, and the defence were faced with an enormous burden of paper. The trial judge conducted the defence with exemplary patience and common sense. At one point during the course of the prosecution case, a sample analysis was taken in relation to the trail of funds through the cheques, the subject matter of the indictment, and into the bank accounts of the appellant and then in respect of the various expenditures which were alleged by the prosecution to show dishonesty. Whereas the defence did not then make formal admissions, it was accepted in front of the jury that this analysis could be taken as applying to all of the cheques that were the subject matter of charges and that there was no necessity to spend what would have been several days repeating the evidence in respect of each count. This was entirely responsible. Furthermore, in terms of the case to be made on behalf of the appellant, it could not be regarded as a concession; since on the book of evidence all of these proofs were firmly in place.
17. It is necessary to return to the question of definition of issues within a criminal trial. The prosecution case will be apparent from the book of evidence and this will be outlined to the jury by prosecution counsel in opening. The defence case had emerged sufficiently well by this point in the trial for the trial judge to reach an assessment that what was being put forward on behalf of the appellant was a general attack on credibility, as opposed to any specific defence. This focus had emerged on the central issues in the case. This had nothing to do with the technical proof of the transition of monies from the two accounts of Adam Clayton that were in question to the accounts of the appellant and thence to the expenditure detailed earlier in this judgment. That expenditure was not, in itself, ever challenged. Hence, the defence being mounted had nothing to do with any chain of proof relating to the transmission of money. There could therefore have been no harm in Adam Clayton hearing this evidence. Firstly, it was not part of the evidence that was being challenged in the conduct of the defence case; and secondly, it was not evidence that was germane to Adam Clayton’s evidence. His testimony was to the effect that particular categories of expenditure were authorised by him to be made, on his behalf, by the appellant, but only those. That testimony did not relate to any forensic analysis of the movement and expenditure of money.
18. In deference to the argument put forward so cogently by counsel for the defence, the Court would wish to add a brief comment. The trial judge refused the application to exclude Adam Clayton while this evidence on the trail of money was being given. In doing so he referenced Article 34.1 of the Constitution. This reads:
Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.
19. This has, on occasion, been interpreted as establishing an entitlement to every citizen to attend at every stage of every criminal trial, whether they be witnesses in relation thereto or not. As a matter of theory, but theory only, that entitlement exists. It is, however, subject to the overall authority of a trial judge to order and arrange the conduct of a criminal trial in such a way as to ensure a fair trial. The Article should not be read alone, and in particular without the context of the imperative set out in Article 38.1:
No person shall be tried on any criminal charge save in due course of law.
20. The responsibility of a trial judge therefore may override, in appropriate circumstances, the entitlement of citizens to scrutinise the conduct of criminal trials through their physical presence in court. The exclusion of witnesses in aid of an appropriate search for the truth has an ancient lineage. In chapter 13 of the Book of Daniel a woman named Susanna was accused of adultery by two lecherous old men who had seen her bathing. When they attempted to rape her, she screamed. They then made a false accusation against her that they had seen her committing adultery with an unidentified young man. According to the law of Moses, she was to be put to death. The prophet Daniel, however, insisted that there be a proper investigation and that no one should be condemned without clear evidence. Before a council of the elders, he required the two men to be separated “well apart from each other” so that he might examine them. When he questioned them, they then gave inconsistent testimony and Susanna was acquitted. There can be cases where it may reasonably be thought that there is a danger that a witness will be influenced by, or will tailor evidence to, evidence that he or she hears in court. Where that situation arises it is within the competence of a trial judge to exclude witnesses so that each person testifying to the relevant facts will do so in isolation of, and without hearing, other relevant testimony. This might arise in visual identification cases; in sexual violence cases where the defence centres on what level of contact was witnessed between the complainant and the appellant before the offence was allegedly perpetrated; group fights where one group and another or associates; where two accomplices are to give evidence as to what they witnessed concerning the commission of an offence and its preparation or planning; and such other circumstances as in the reasonable judgment of the trial judge will aid in the administration of justice. These are matters which the trial judge has a responsibility to deal with and which should be ruled on within a wide measure of appreciation as to what the needs of the organisation of the trial are with a view to assisting in the illumination of truth.
21. The trial judge could not be regarded as falling into error on this issue. This ground is therefore dismissed.
Production Orders
22. Four production orders were made pursuant to s.52 of the Criminal Justice (Theft and Fraud Offences) Act 2001, as amended. These production orders were prepared in an expert fashion by members of An Garda Síochána and were applied for on four separate occasions: 9th December 2009, an order in respect of the appellant’s personal and joint accounts; 22nd January, 2010, a further order in respect of the appellant’s personal and joint accounts; 21st December, 2009, an order in respect of the appellant’s credit card accounts; and 22nd January, 2010, a further order in respect of the appellant’s credit card accounts. The objections raised by the defence on this ground are to the effect that the orders lack jurisdiction in referring to “evidence on oath” rather than “information on oath”; and that orders were applied for unreasonably and unnecessarily. On the second ground, the Court is fully satisfied that such orders as were granted by the District Court on foot of s.52 of the Act of 2001 were properly applied for by members of An Garda Síochána. Having uplifted particular documents on foot of the first two orders, other orders were sought as being necessary. The information put before the District Court contained all of the relevant particulars from the earlier applications. In addition, in respect of the second application dealing with the “MasterCard” of the appellant, it was detailed that it was necessary to look at documentation dating back to January 2004 in order to complete the documentary picture. In relation to the other of the orders complained of, the relevant time period was close to lapsing. The Court is satisfied that all of these orders were properly sought. Furthermore, the information put on oath before the District Court was wide ranging and full in the particulars which it gave. There is no question of comparing these applications to the bald assertion condemned in the High Court in Byrne v Grey [1988] IR 31. In terms of any adjudication as to the validity of orders, in the aftermath of an application where a garda swears to the validity of any information, it should be remembered that judges of the District Court are at liberty to, and as a matter of fact do, ask relevant questions in the event that these may illuminate further the nature and purpose of the order that is being sought. In no way could this be characterised as a function lacking in judicial probity or one which is not made subject to appropriate judicial scrutiny.
23. As to the second point, in the People (DPP) v Jakubowski [2014] IECCA 28 (Unreported, Court of Criminal Appeal, O’Donnell J, 31st July 2014,) the precise terms of any difference between a reference to “evidence on oath” and “information on oath” has been analysed. As O’Donnell J said in that case, at paras. 18-20, any such difference is not material:-
“Information” in its ordinary sense simply means some material, knowledge or news which is communicated. In its ordinary English meaning, information may be conveyed in a number of ways, orally, in writing, electronically or possibly by gesture. But the appellant argues that the word in the phrase “information on oath” carries a special meaning in law and refers only to a written document. […][T]he Court is persuaded by and accepts the arguments advanced on behalf of the respondent in this regard. […] In general [the Criminal Justice Act 2006] was a comprehensive attempt to close perceived gaps in the legislative scheme and make easier the detection and prosecution of crime. […] It seems more plausible therefore, as argued on behalf of the respondent, that the purpose of using the term “information” rather than “evidence” was in fact to broaden the material upon which a warrant could be issued, or at least to avoid any restrictive argument that only admissible evidence could ground the issuance of a warrant. […] Accordingly, it does not appear that there is anything in the structure or terms of the Act to suggest that information was intended only to mean a written document.
24. This ground of appeal is therefore dismissed.
25. It has been further claimed as part of this ground that leading questions were asked by counsel for the prosecution of Adam Clayton. This Court does not agree. What is, or what is not, a leading question must be seen in the context of the issues that are alive in a case. This includes a consideration of such issues as have been left uncontested. The mischief involved in permitting leading questions to be asked is that counsel will be enabled to suggest to a witness the answers that will suit their case. Hence, in an examination in chief, counsel are not permitted to ask their own witnesses leading questions. Oppressive or badgering cross examination should be curtailed for the same reason, that it does not assist in the search for the truth. Robert Lindsay Sandes in Criminal Law and Procedure in the Republic of Ireland (3rd edition) (Sweet and Maxwell, 1951) at page 125 properly characterises the rule against asking leading questions of counsel’s own witnesses as follows:-
Leading questions, as a rule, are not permitted, i.e. questions so framed as to suggest to the witness the answers required of him. Leading questions are, however, permitted: (1) in matters merely introductory to others and not material, or which are not disputed; (2) in order to identify a person or a thing already described; (3) in order to obtain a direct contradiction to a certain fact already sworn to by another witness; (4) with leave of the judge, when a witness is obviously forgetful, or in the judge’s opinion hostile.
26. No question asked by counsel for the prosecution came anywhere close to suggesting Adam Clayton had particular evidence to give that was desired. Furthermore, the nature of the case presented, and the defence as run, clearly enabled counsel for the prosecution to focus on the issues in controversy. This was done properly.
Relevance of Admissions
27. Counsel for the appellant argues that the spontaneous admissions made by her to Adam Clayton in the south of France in September 2008 were irrelevant to any issue before the jury and were highly prejudicial. In consequence, it is claimed that the prejudicial effect of her confessing to spending Adam Clayton’s money on flights for her and her children outweighed any probative effect of this evidence. The details of the encounter are set out above.
28. One of the matters focused on by counsel for the appellant at the trial was that while the appellant was included on the relevant bank mandates as an authorised signatory of cheques, no limit was expressly included as to that authority. It was therefore put to the relevant witnesses that to all intents and purposes the two accounts on which the 181 cheques were written were joint accounts. David McManus is a forensic accountant employed by An Garda Síochána. He gave extensive evidence analysing the transactions in question. This evidence was central to the prosecution case. The relevant documentation was either proven or referenced through his evidence. One of the documents focussed on was the actual mandate enabling the appellant to sign on one of the accounts. Cross-examination by counsel on behalf of the appellant focussed on the nature of whether any oral limitation imposed on the operation of the accounts was reflected in this document. A flavour of the cross-examination may be gleaned from the following extract:
Q. So from my point of view, I am putting it to you that there was no such qualification, restriction or limitation indicated by Mr Kavanagh when he was giving his evidence?
A. In my experience, I hadn’t seen mandates where signatories are appointed. There would be signatories on the accounts, and it expressly said in the mandate that you can only sign cheques for particular items. The normal mandate is a general mandate. You’re an authorised signatory on the account. In some cases it can require two persons to sign the cheque. In some cases it can require two persons to sign the cheque. In some cases it can require only one person to sign the cheque. But I would make the point, and it can be made by the account holder, I don’t wish to pre-empt what he may say, but in my view, being a signatory on a bank account doesn’t give you carte blanche to sign cheques for personal use or for - they only - I would leave it at that now.
Q. Well, you were going to qualify it by saying the only one? You were going to qualify it?
A. No.
Q. The only exception to that being what?
A. There are no exceptions as far as I am aware.
Q. There are exceptions and you know there are exceptions?
A. There are exceptions where you have - where you are dealing with trust companies and - … various things like that.
Q. They are all written out; isn’t that right?
A. That’s correct.
Q. But if you are actually acting as a trustee in circumstances where you are operating under an authority, that’s a restriction; isn’t that right?
A. It is but in this particular case if - if there was trusteeship involved, it would be - … if there was any restriction in relation to trusteeships and the power of the trustee, it would be contained in the trust document … My understanding is there is no such limitation in relation to these accounts. There is clear signing authority granted to Mrs Hawkins, as sole signatory on the accounts, to sign cheques … That’s - as far as I can say in relation to that.
Q. And then also you can see in exhibit 26 that she is specifically referred to as a joint holder of the account; isn’t that right? Specifically?
A. No, it doesn’t actually say that.
Q. “In the case of joint accounts both parties must sign and the …” - ?
A. Yes. And it says in the case of joint accounts both parties … it doesn’t state this is a joint account and I - … If it was a joint account, both parties’ names would appear on the bank statement and it would state it was a joint account …
Q. If you look up under the signature at the top, which is dated 10/3/00, it seems signature (1); isn’t that right?
A. Yes, but this - this is not a bank mandate on an account. This is a payment card application; a laser/cirrus/maestro/cheque guarantee card.
Q. Mr McManus, I have asked you in respect of specifically the joint account status of this particular account and you say it is not a joint account. I am saying to you that that mandate clearly indicates that it is?
(Day 9 page 97-100)
29. The visit of the appellant to Adam Clayton in the south of France has been equated in the written submissions on her behalf as being equivalent to mere character evidence. This is not correct. The prosecution is always entitled to place a charge within its appropriate context. A jury cannot be expected to try a case in a way which excludes relevant evidence as to the nature of the relationship between the victim of an offence and the alleged perpetrator. Since AG v Joyce & Walsh [1929] IR 526 it has not been doubted that evidence of misconduct on occasions other than those specified on the indictment may be admitted in evidence as part of the prosecution case. These are relevant to, and therefore cast light on the facts in issue. Such evidence can be part of the circumstances from which guilt may be inferred. In the People (DPP) v. McNeill [2011] 2 IR 669 the accused was charged with eight counts of sexual assault and rape. As anyone familiar with that kind of case will realise, these incidents did not come out of the blue. Instead, the prosecution led evidence that the accused went out of his way to prepare the victim for these later assaults; a process now quite often called grooming. A question of law was posed by the Court of Criminal Appeal for the Supreme Court under s.29 of the Courts of Justice Act 1924 in the following terms:-
Is evidence of connected background history, which might disclose matters not laid down in the indictment and possibly prejudicial to the accused but which is essential or helpful to the jury understanding the charges actually laid in the indictment, admissible in a criminal prosecution?
Denham J answered the question in this way at page 695:-
Background evidence, which might disclose matters not laid down in the indictment, but which may have been in the book of evidence, and which would be prejudicial to an accused, is admissible if it is so relevant to facts to be proved by the prosecution or defence and to be determined by the jury that it is necessary to render comprehensible such fact or facts. It is admissible if without such background evidence the facts would be incomplete or incomprehensible for a jury. The test is one of relevance and necessity, as described earlier in the judgment. I am satisfied that paras. (a) to (f) of the grounds of appeal do not raise any issue so as to bar the admission of background evidence in accordance with the legal principles described in this judgment. The test to be applied is one of relevance and necessity. In this case the evidence was not wrongly admitted as it was relevant and necessary to explain the relationship between the complainant and the appellant and rendered comprehensible the actions of the complainant. There was no breach of the rights of the appellant in the application of this principle.
In this case the trial judge admitted the background evidence. This included evidence of behaviour by the appellant of other alleged offences against the complainant. However, it is clear that the jury were not overwhelmed by this evidence as they found the appellant not guilty of rape on counts nos. 3 and 7, but guilty of indecent and sexual assaults. Also, the jury acquitted the appellant of the charge of rape on count no. 8.
Considering the facts of this case, it is quite apparent that the eight counts do not reflect the thousands of complaints which are evident from the statements of the complainant. The fact that there are eight counts only would be reflected in any sentence, and thus to the advantage of the appellant. However, it is very important to keep a trial fair to all parties. There is no doubt but that the eight counts do not reflect the numerous complaints of the complainant and the abusive relationship which developed between the accused and the complainant, which had an effect on the conduct of the complainant. But that is not a matter for determination. The question raised for the court is as to background evidence. On that issue I am satisfied that the background evidence was relevant and necessary to render comprehensible the actions of the complainant in these eight instances.
30. Often, it is attempted to argue, as has been done in this case, that relevant background information which involves the commission of offences on other occasions is mere evidence as to bad character, or even worse, an attempt to prejudice the jury by the admission of evidence of previous conduct, whether leading to prior conviction or not. Any such submission needs to be looked at in the light of what actually happened at the trial. In the McNeill case, all of the testimony of the complainant was contested, including the background evidence. The evidence of the encounter between the appellant and Adam Clayton was highly relevant. It demonstrated that there were clear limits set to the legitimate spending power of the appellant on his bank accounts. It demonstrated, in addition, that the appellant was aware of these limits and that she did not have authority, and therefore could not honestly, purchase holiday excursions for herself and her children. This relevant evidence constituted a fact from which dishonesty might be inferred, and could be inferred in a fair manner, in relation to the 181 counts before the jury.
31. This ground of appeal therefore fails.
Chain of Evidence
32. The ground of appeal in relation to what claims to be the absence of proper proof in the chain of evidence as to the documentary exhibits was argued to be fatal to the prosecution. The Court would comment, having read the transcript, that a genuinely expert effort was made by members of An Garda Síochána to investigate the case, to uplift the relevant documents pursuant to appropriate court orders, and to coordinate these with evidence of dishonesty on the part of the appellant. Proving chains of evidence has had a long history before Irish courts. In many instances, it may be unnecessary. In murder cases, juries will no doubt be puzzled that from the time of the discovery of the corpse of the victim, evidence will be led as to every person who dealt with the body, transported or stored it prior to autopsy and final release to the victim’s family. Often, evidence is given by the drivers of the hearse that no accident occurred while the corpse was being driven between the scene of the crime and the forensic pathology department. Every element of the prosecution case is subject to the requirement that it be proved beyond reasonable doubt. This can be one sequence of events as proof where the rest may be testified to by only brief evidence: as in this case, in circumstances where on reading the book of evidence the defence are convinced that appropriate documentary proof is in place and that, responsibly, a concession should be made. This Court is satisfied that such a concession was properly made.
33. No doubt, in very many cases, the prosecution wish to exercise a counsel of prudence, whereby everything that is capable of mathematical proof will be testified to in that way. This approach, however, does not mean that there is any higher standard in criminal cases than that the jury should be satisfied of the provenance of relevant exhibits beyond reasonable doubt and that such facts as are proven beyond reasonable doubt must ultimately be analysed as to whether these prove the guilt of the accused person beyond reasonable doubt on any one or more counts. There can be some instances where the writing of an appropriate name and number on a bag may suffice to establish its provenance to that standard. The failure to call a chain of evidence in between to explain to the jury how that physical evidence came to be in one place when it was found to be in another may not otherwise be necessary. In circumstances where gaps are left by the prosecution, however, these may be such that a reasonable doubt as to the provenance of physical evidence, or their relationship to the proof of the offence, may be absent. In Francis Whelan v. DPP (Unreported, ex tempore, High Court, Ó Néill J, 2nd February,2009), the accused was apprehended for a controlled drug search and two items were taken away on a search of his person. These items were then sent to the forensic science laboratory. In the course of the prosecution of the accused a certificate was tendered simply stating his name but containing no other identifying features to link him to the items in question. Furthermore, the garda who conveyed the evidence bag to the forensic science laboratory did not give evidence. Ó Néill J saw that there was a very significant gap in the evidence and held on a case stated from the District Court that in such circumstances the accused had no case to answer. This case is not authority for the proposition that wherever there is a gap in the proof by the prosecution of the physical custody of an exhibit that evidence resulting from this should be excluded. The actual words in the approved but ex tempore judgment of Ó Néill J refer:
It seems to me that the gap in the chain of evidence is extremely significant. The only circumstantial evidence is the name ‘Francis Whelan’ written on the certificate. That in itself could not cure the problem. Perhaps if the civil standard of proof, the balance of probabilities were being applied, the court might comfortably conclude that the sample taken was that of the accused. But when the court must be satisfied beyond reasonable doubt, in my view in the absence of Garda Carroll or other evidence to tighten up evidence relating to the identification of the materials tested, I do not think that a court could be satisfied beyond a reasonable doubt that the subject of the certificate related to the accused. It is to be observed that when a particular evidential status is accorded to certificates it is crucially important that the steps taken are established. Great care must be taken to ensure this is so. The reason is clear: if a person may be convicted essentially on the basis of a piece of paper, it is of crucial importance that the steps that are taken to produce that result are taken properly and, to use a famous and popular phrase, with openness and transparency. Otherwise the only means accused persons would have of defending themselves would be to attempt to call evidence to prove or demonstrate that steps were not taken properly. That is why, when it is possible to convict substantially by means of certificate evidence, the necessary preliminary steps must be proven. In other words it is not tolerable to have substantial gaps in the evidence leading to the tendering of the certificate.
34. That was a case in which there was no proof, beyond the appearance of a common name, that the items in the bag produced during the course of the prosecution case had come from the accused man. Such an approach is not acceptable. Neither is it necessary, however, to call every person who at any stage had handled, or who had custody of, items of physical evidence. The standard to be applied is the standard that failed in the Francis Whelan case, namely proof of facts relevant to the charge beyond reasonable doubt. This was made clear in an ex tempore judgment of this Court in the People (DPP) v. Michael McDermott (Unreported, ex tempore, Court of Criminal Appeal, Hardiman J, 17th June, 2002). There, Hardiman J indicated, in response to a point made by the defence, that the chain of evidence is dependent upon the standard of proof in criminal cases, as opposed to the requirement urged on behalf of the appellant in this case, which is that of mathematical certainty. At pages 2 and 3 of the unreported, ex tempore, judgment Hardiman J stated:-
There can be no doubt, as was conceded at all times by the prosecution, that there is an inconsistency between the evidence of Detective Garda Farrell and Ms. Hughes the forensic scientist. However the question is: is this an inconsistency significant to this case such as makes it impossible for the jury rightfully to be satisfied that the material analysed by Ms. Hughes was the material seized by the Gardaí who came up to the accused in the car park as described. We do not believe that…inconsistency does render it impossible, or impossible rationally, to be so satisfied. It is perfectly plain that one or other of these witnesses is mistaken. Mr. White [counsel for the defence] has put it on the basis that if the Book of Evidence be right, that material could have been removed by Garda Farrell, and that that establishes, he says, that it was not, having regard to the evidence of Ms. Hughes, the material seized. We do not think that it is so. We do not think that the prosecution case is fatally damaged by the fact that there is an inconsistency in what we think Mr. Sweetman [counsel for the prosecution] correctly described as a peripheral matter. The jury had to be satisfied that it was the same material and they were instructed properly in relation to that, and clearly came to the conclusion that it was. We do not believe that the inconsistency is at all fatal, we consider that there was ample evidence with which the jury could have been satisfied on the matter they required to be satisfied of in this regard.
35. During the course of argument a distinction was sought to be drawn between items of physical evidence, such as a murder weapon, and documentary evidence, such as bank accounts. This Court does not believe that there is any different principle to be applied. A murder weapon, or a drug sample, may be unique. A bank account statement of transactions by a particular named person can, of course, be printed out again and again since the actual record will consist of electrical activity in computers. A bank account statement is, of its nature, referable to any named person on a named account with a particular bank in a particular location. It therefore follows, that proof beyond reasonable doubt that a bank statement relates to a particular individual, and if the same bank statement is produced earlier in the trial, is somewhat easier of proof. Physical items may require more care. The appending to an evidence bag containing a murder weapon, however, of appropriate identifying characteristics, can achieve much the same result without the need of proof of all intermediate stages of possession.
Nature of the Charge
36. It was argued on behalf of the appellant that section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 was an insufficient basis for the facts proven by the prosecution and that therefore a direction should have been granted at the close of the prosecution case. This Court does not agree. Section 4 of the Act of 2001 provides as follows:
(1) Subject to section 5, a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.
(2) For the purposes of this section a person does not appropriate property without the consent of its owner if—
(a) the person believes that he or she has the owner's consent, or would have the owner's consent if the owner knew of the appropriation of the property and the circumstances in which it was appropriated, or
(b) (except where the property came to the person as trustee or personal representative) he or she appropriates the property in the belief that the owner cannot be discovered by taking reasonable steps,
but consent obtained by deception or intimidation is not consent for those purposes.
(3) (a) This subsection applies to a person who in the course of business holds property in trust for, or on behalf of, more than one owner.
(b) Where a person to whom this subsection applies appropriates some of the property so held to his or her own use or benefit, the person shall, for the purposes of subsection (1) but subject to subsection (2), be deemed to have appropriated the property or, as the case may be, a sum representing it without the consent of its owner or owners.
(c) If in any proceedings against a person to whom this subsection applies for theft of some or all of the property so held by him or her it is proved that—
(i) there is a deficiency in the property or a sum representing it, and
(ii) the person has failed to provide a satisfactory explanation for the whole or any part of the deficiency,
it shall be presumed, until the contrary is proved, for the purposes of subsection (1) but subject to subsection (2), that the person appropriated, without the consent of its owner or owners, the whole or that part of the deficiency.
(4) If at the trial of a person for theft the court or jury, as the case may be has to consider whether the person believed—
(a) that he or she had not acted dishonestly, or
(b) that the owner of the property concerned had consented or would have consented to its appropriation, or
(c) that the owner could not be discovered by taking reasonable steps,
the presence or absence of reasonable grounds for such a belief is a matter to which the court or jury shall have regard, in conjunction with any other relevant matters, in considering whether the person so believed.
37. The elements required to prove this offence are: the appropriation of property; absence of consent by its owner; an intent to deprive the owner thereof, either permanently or on a temporary basis; and dishonesty. The proof of dishonesty in this case came with the testimony as to the use to which the money was put once the cheques were lodged in the bank accounts of the appellant. The jury could have been satisfied on the evidence adduced, and in particular in the aftermath of the September 2008 meeting between the appellant and Adam Clayton in the south of France, that the owner of the cheques did not consent. Nor would he have consented had he known of the appropriation, though that fact does not make up an element of the offence. The appropriation consisted of taking and using the cheque as a personal disbursement into the account of the appellant. The theft was complete, therefore on the appellant writing a cheque to herself with the dishonest intention of lodging it to her bank account. The property consisted of the cheque. The dishonesty was proven in relation to the underlying use of the funds. Under the Larceny Act 1916 an intention to permanently deprive the owner of the cheque, or the funds if that was the offence set out in the particulars, was required. Thus, it might once have been an answer to a charge to state that the funds were being borrowed merely for a time. Whether any such case might be capable of being believed so that a reasonable doubt might be said to exist does not even arise in the context of s.4. It is claimed by counsel for the appellant that s.6 of the Act of 2001 was a more appropriate charge. That section reads:
38. Whereas there may have been elements of deception involved in this case, s.6 was not a more appropriate, or more importantly, the only appropriate charge in the circumstances of the events in question at this trial. The failure to record the relevant cheques on the QuickBooks system, as the appellant had been instructed and trained to do by Adam Clayton’s accountant, might be evidence of deception. In itself, however, it is evidence of dishonesty; though, perhaps in other circumstances as an isolated incident it might be explained or simply taken as evidence of neglect. The trial judge directed the jury on this element of the case (Day 17, page 47) in the following terms:-
The law is that misappropriation, or the appropriation for the purposes of the Act, occurs at the point that she signs the cheque in contradistinction to the instructions and understanding she carried. And it is at that point that the taking or the appropriation occurs. The signing of the cheque to Carol Hawkins, to Carol and John Hawkins, or to Bank of Ireland Credit Card, whichever, at that point the act is complete. The law is clear about that, ladies and gentlemen. The issue is what was the arrangement at that point? And here, the prosecution presents to you and relies squarely on the evidence of Mr Clayton. It was not her position to do it, she did not have consent to do it, and her proper authority from Mr Clayton was to use the cheque book of the Danesmoate and Fitzwilliam accounts for the purposes of the household expenses. We did have quite a long discussion through the evidence about mandates, and that these mandates were never qualified or restricted in any way. The documents in the bank, sitting on the bank file, clearly were unrestricted and unfettered. They made Ms Hawkins a co-signee to the accounts. And there was no note saying “up to any limit”, or no note saying “only for this purpose”. The limit on that account and these accounts was the limit placed by Mr Clayton in speaking to Ms Hawkins about her duties and what she was obliged to do. It is a matter of fact for you to resolve on the evidence you have heard. There is no counter evidence. What there is probing and testing of Mr Clayton on what he has told you. And it is upon him that you rely for this aspect of the evidence in the case.
39. The Court regards this as an unimpeachable direction to the jury. It is to be noted that the trial judge (Day 16, 27 June 2012, page 51) relied on a passage from Archbold Criminal Pleading, Evidence and Practice (47th edition, 1999) at p. 1757as follows:-
It was held in ex parte Osman that a theft of funds in a bank account is complete when a cheque is dishonestly drawn on the account without authority. The theft is complete in law even though it might not be complete in fact until the funds have been debited. It would not matter if the account was never in fact debited.
40. This is correct. In R v Kohn (1979) 69 Cr App R 395, an accountant who had lawful possession of a company cheque book wrote cheques for his own purposes. He was charged with theft of same. The Court of Appeal confirmed the appropriateness of the charge stating:-
The sequence of events in this case can be brought down to a simple series of facts. The defendant starts with a cheque book in his possession. It is the cheque book of the company and he is plainly in lawful possession of that book with the cheques inside it. He apparently had the habit, as we have already indicated, at least occasionally of removing blank cheques from the book, tearing out the cheque, leaving the counterfoil in position, putting the cheque in his pocket and filling it in at a later stage. Still nothing wrong at all in that. He is still acting lawfully, although it may be somewhat unusual. He then makes up his mind to fill in the cheque with the amount, then the payees and the date and so on. The third party in whose favour the cheques were being made were ex hypothesi not entitled not entitled these sums. The appellant was therefore using the company’s cheques and the company’s bank account for his own purposes. Ms Goddard suggests that there was a gradual appropriation as the events moved on in this way.
The next stage is this. He says to himself, “I am now going to make the cheques payable to [another individual]. This action is unknown to [the principal of the company]. It is ex hypothesi once again contrary to the interests of the company. It is contrary to the will of the company and it is dishonest. This is dealing with a cheque not as agent of the company duly authorised, but is dealing with the cheque as if it was his own. That seems to us sufficient to amount to an appropriation under the Act.
41. In R v Governor of Pentonville Prison ex parte Osman [1991] WLR 277 the issue of what rights of the owner had to be appropriated in a cheque in order to amount to theft was considered. It was not necessary to appropriate the monies the subject matter of the cheque once the cheque itself was appropriated. Of course, if such an appropriation takes place that it is relevant to sentencing, but it is not a necessary element of the offence. There is no rule of law that appropriation must deprive the property owner of all of his or her rights. Stealing a bar of chocolate consists of taking it from the owner and the elements of the offence do not require it to be eaten. It is wrong to state that to steal a cheque the accused must also cash it or even spend the money. Such actions may be led as proof of dishonesty. In Osman at 294-295 Lloyd LJ stated:-
In Reg v Morris (1984) AC 320 the House of Lords made it clear that it is not necessary for an appropriation that the defendant assume all the rights of an owner. It is enough that he should assume any of the owner’s rights: see per Lord Roscale at p.331, and the passage cited above from Chan Man Sin. If so, then one of the plainest rights possessed by the owner of the chose in action in the present case must surely have been the right to draw on the account in question. Mr Ross-Munro argues that the right to draw on an account in credit, or within an agreed overdraft limit, is not a right but a liberty or a power. He refers us in that connection to Glanville Williams, Textbook of Criminal Law, 2nd edition (1983), p. 763. We find that hard to understand. So far as the customer is concerned, he has a right as against the bank to have his cheques met. It is that right which the defendant assumes by presenting a cheque, or by sending a telex instruction without authority. The act of sending the telex is therefore the act of theft itself, and not a mere attempt. It is the last act which the defendant has to perform and not a preparatory act. It would matter not if the account were never in fact debited. We can find no way of excluding the sending of the telex in such circumstances from the definition of appropriation contained in s.3(1) of the Theft Act 1968 … Applying that meaning to the facts of the instant case, we would hold that the defendant “usurps” the customers rights when he, without the customers authority, dishonestly issues the cheque drawn on the customer’s account. If “adverse interference” adds anything to usurpation, then he also therefore adversely interferes with the customers rights. The theft is complete in law, even though it may be said that it is not complete in fact until the account is debited.
Conversely in this jurisdiction, section 4(5) of the Criminal Justice (Theft and Fraud Offences) Act 2001, which deals with appropriation for the purposes of the offence of theft, was drafted in very broad terms. It states that for the purposes of section 4, the term “appropriates”, in relation to property, means “usurps or adversely interferes with the proprietary rights of the owner of the property”. This means the prosecution do not need to prove that the accused person intended to permanently deprive the complainant of his property.
42. The Court is therefore satisfied that the appropriate charge was applied to the facts of this case and that all the elements of an offence under s.4 of the Act of 2001 were properly proven in front of the jury.
Result
43. It therefore follows that there was sufficient evidence upon which the jury could convict the appellant of the offences in respect of which she was, in fact, convicted.
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