THE HIGH COURT
		1996/1343 S.S.
IN THE MATTER OF THE SUMMARY JURISDICTION ACT, 1857 - SECTION 2
AND IN THE MATTER OF THE COURTS (SUPPLEMENTARY PROVISIONS) ACTS, 1961 TO 1991 
AND IN THE MATTER OF A CRIMINAL PROSECUTION 
BETWEEN
MAURA O'KELLY
		ACCUSED/APPELLANT
V.
THE DIRECTOR OF PUBLIC PROSECUTIONS 
		PROSECUTOR/RESPONDENT

Judgment of Mr. Justice Diarmuid B. O'Donovan 

Judgment of Mr. Justice Diarmuid B. O'Donovan delivered on the 20th February, 1997.

	This is an appeal by way of Case Stated brought by the Appellant against an Order of District Judge Gillian Hussey made on the 8th day of February, 1995 at a sitting of the District Court held at Kilmainham in the Dublin Metropolitan District, whereby the Appellant was convicted of a charge that she, the said Appellant, on the 27th day of  November, 1990 at the Spa Hotel, Lucan, in the Dublin Metropolitan District, did handle stolen property to wit; a brown leather wallet containing assorted documents,  total value £20, knowing or believing it to be stolen property - contrary to Section 33(1) of the Larceny Act, 1916, as amended by Section 3 of the Larceny Act, 1990.  
	From the Case Stated by the learned District Court Judge, it appears that, at a  previous sitting of the District Court held at Kilmainham in the Dublin Metropolitan District on the 6th February, 1995, she had adjudicated on a charge against the Appellant that she, the said Appellant, on the 27th November, 1994 at the Spa Hotel, Lucan in the Dublin Metropolitan District, did steal from the person of one Emmet Eiffe property to wit; a brown leather wallet containing assorted documents, value £20 - contrary to Section 14 of the Larceny Act, 1916 and that she had dismissed the said charge on the grounds that she was not satisfied beyond reasonable doubt that the Appellant had stolen the item in question.  However, having heard submissions in that behalf by Counsel for the Appellant and by the Prosecuting Guard, D/Guard Michael Conneely, the learned District Court Judge concluded that there was sufficient evidence adduced before her on which she could convict the Appellant of the offence of handling stolen property contrary to Section 33(1) of the Larceny Act, 1916, as amended by Section 3 of the Larceny Act, 1990.
	The Case Stated raises for the decision of the High Court the question as to whether or not, in the light of the facts adduced in evidence before the learned District Court Judges, he was entitled in point of law to convict the Appellant of the offence of handling stolen property contrary to Section 33(1) of the Larceny Act, 1916, as amended by Section 3 of the Larceny Act, 1990.
	While it appears from the Case Stated that the learned District Court Judge was of the opinion that there was sufficient evidence adduced before her upon which she could convict the Appellant of the offence of handling stolen property contrary to Section 33(1) of the Larceny Act, 1916, as amended by Section 3 of the Larceny Act, 1990, she does not specifically point to the evidence which persuaded her to come to that conclusion.  Accordingly, I was concerned that, in the light of the failure of the learned District Court Judge to identify the evidence upon which she relied to convict the Appellant of the charge aforesaid, it was incumbent upon me, before I could consider whether or not she was entitled as a matter of law to come to the conclusion at which she had arrived, to remit the Case Stated to the learned District Court Judge for the purpose of identifying that evidence.  However, having heard submissions in that behalf by Counsel for the parties, I am of the opinion that the Case Stated sufficiently identifies all of the relevant facts found by the learned District Court Judge to base her conclusion and, in particular, sufficient facts to enable me to decide, as a matter of law, whether or not an offence of handling stolen property contrary to Section 33(1) of the Larceny Act, 1916, as amended by Section 3 of the Larceny Act, 1990 was established against the Appellant.  That is not to say, however, that the learned District Court Judge might have been better advised to specifically identify the evidence upon which she had based her conclusion.  
	Apart from the fact that the Appellant, herself, denied in evidence that she was the thief, it would appear from the Case Stated that the only evidence before the learned District Court Judge which purported to identify the person responsible for stealing the wallet in question from Mr. Emmet Eiffe is that of Mr. Eiffe, himself, who clearly identified the Appellant as the culprit.  Moreover, apart from the implications of the Appellant's denial that she was the thief, the Case Stated does not include any evidence to suggest that any other identifiable person was responsible for stealing Mr. Eiffe's wallet.  Furthermore, while the Case Stated establishes that there was evidence from a security officer named Michael McDonald that the Appellant was in possession of a wallet, which Mr Eiffe identified as his property and that she, the Appellant, gave that wallet to Mr. McDonald and that there was also evidence from a security officer named Thomas Tracey that, in his (Mr. Tracey's) presence Mr. Eiffe identified the wallet which the Appellant gave to Michael McDonald as his (Mr. Eiffe's) property, there was no evidence to suggest that the Appellant had received
that wallet from a third party.  Indeed, it would appear from the Case Stated that Mr. Eiffe's evidence with regard to the circumstances of the theft of his wallet and, in particular, the fact that he immediately afterwards identified the Appellant as the culprit, does not allow that a third party could have had the opportunity of handling the wallet before it came into the possession of the Appellant; if, as was the evidence of Messrs. Michael McDonald and Thomas Tracey, that it was in her possession.  
	In The People At the Suit of the Director of Public Prosecutions v. Peter O'Neill; a judgment of the Court of Criminal Appeal delivered by Blayney J. on the 24th July, 1995, it was held that the offence of handling stolen property contrary to Section 33 of the Larceny Act, 1916, as amended by Section 3 of the Larceny Act, 1990, has the same relationship with the offence of larceny as the former offence of receiving stolen goods.  Accordingly, before a person can be convicted of the offence of handling stolen property, there must be evidence that the goods were stolen by a person other than the accused.  See the judgment of O'Flaherty J. delivered in the Court of Criminal Appeal in the Director of Public Prosecutions v. Noel Fowley (1995) 1 I.R. at page 297:

	"It is clear from a perusal of the judge's charge that he never, in so many words, told the jury that, before the accused could be found guilty of the handling charge, they had to be satisfied; not only that the saw was stolen, that he had handled it knowing or believing it to have been stolen, but that, before he could be found guilty of the offence of handling, they had to be satisfied that it had been stolen by someone else."

	That decision clearly follows the decision of the Court of Criminal Appeal in The People v. Carney and Mulcahy (1955 I.R. at page 341) where O'Byrne J. stated:

	"It is, of course, elementary that a charge of receiving implies that some person, other than the accused, stole the goods and, before convicting, the jury should be satisfied as to this."

	And the judgment of the Supreme Court in O'Leary v. Cunningham (1980 I.R. at page 373) where Griffin J. held:

	"Before a person may be convicted of receiving, it must be proved to the satisfaction of the jury or the Court (as the case may be) that the Defendant received the property from somebody else."

	While the learned District Court Judge was not satisfied beyond reasonable doubt that the Appellant had stolen the wallet in question and accordingly dismissed the charge against her under Section 14 of the Larceny Act, 1916 and, for that reason, was entitled to consider the alternative charge of handling stolen property contrary to Section 33(1) of the Larceny Act, 1916, as amended by Section 3 of the Larceny Act, 1990, she was, in my opinion, only entitled to consider that alternative charge in the context of evidence that someone, other than the Appellant, had stolen the wallet in question and that it had come into the possession of the Appellant through the medium; either of the thief, or other third party.  In my opinion, the Case Stated does not establish that there was any evidence adduced at the hearing before the learned District Court Judge upon which she could have reasonably concluded that some person, other than the Appellant, had stolen the wallet in question and I cannot interpret the decision of the unreported judgment of the Court of Criminal Appeal delivered the 1st Februrary, 1993 by O'Flaherty J. in a case of The People At the Suit of  the Director of Public Prosecutions v. James O'Hanlon, to which reference is made by the learned District Court Judge in the Case Stated, as being an authority for the proposition that she was entitled to convict the Appellant on the evidence before her.  While it is a fact that the Appellant gave evidence that she did not take the wallet in question from Mr. Eiffe, she also gave evidence that she did not have the wallet and that the evidence in that behalf tendered by Messrs. Michael McDonald and Thomas Tracey was incorrect.  Accordingly, the learned District Court Judge could only have arrived at the conclusion that the Appellant was guilty of the offence of handling stolen property if she accepted her evidence that she had not stolen the wallet in question but rejected the balance of her evidence.  In my opinion, the Case Stated does not disclose any evidence which would have entitled the learned Circuit Court Judge to accept and reject the testimony of the Appellant in that piecemeal fashion and it therefore seems to me that there was no evidence tendered to the learned District Court Judge upon which, as a matter of law, she could convict the Appellant of handling stolen property contrary to the provisions of Section 33(1) of the Larceny Act, 1916, as amended by Section 3 of the Larceny Act, 1990.  In my view, the conclusion of the learned District Court Judge that she was entitled to convict the Appellant of an offence of handling stolen property was not, as a matter of law, open to her on the evidence set out in the Case Stated.
	In the light of the foregoing, I will allow the appeal in this case.