The Court of Criminal Appeal has dismissed Francis Cunningham’s appeal against his conviction for theft, which the jury returned as an alternative to a robbery charge. The court said the theft offence was included in the robbery indictment and that the jury had been given a clear direction on when it could convict of theft.
The appeal concerned a 2007 alleged armed robbery of a cigarette consignment. At trial, Cunningham faced charges including robbery, false imprisonment, possession of a firearm and unauthorised use of a vehicle. The jury acquitted him of one false imprisonment count, disagreed on the other false imprisonment count and the firearm charge, and did not reach a verdict on robbery. It convicted him of theft as an alternative to robbery, and of the vehicle offence.
The prosecution evidence described two Bond Delivery workers, Joseph O’Toole and Edward Postol, being confronted by a man with what appeared to be a firearm while delivering cigarettes. The defence put to the witnesses that they had taken part in a prearranged scheme to steal the goods, and that Cunningham was not involved in a robbery. Cunningham testified that he had been helping direct a lost driver, Aaron O’Driscoll. The prosecution pointed to phone records showing contact between Cunningham and O’Driscoll on a phone topped up the day before the alleged offence.
The trial judge told jurors they could return a theft verdict if they found there had been no violence or threat of violence but the evidence proved stealing. The theft charge had earlier been struck out in the District Court at the prosecution’s request, before a robbery charge was substituted.
On appeal, Cunningham argued that the theft verdict was too imprecise because it did not identify the owner or specify what, where or when property was stolen. He also argued that the earlier District Court decision barred the alternative verdict, and challenged the trial judge’s approach under section 9(4) of the Criminal Law Act 1997.
The appeal court held that dropping the earlier theft charge did not prevent the jury considering theft as an alternative where the indictment’s allegations included that offence. It said the robbery count identified the goods and occasion, and could encompass the delivery workers’ lawful possession as bailees, even if they were complicit and the goods belonged to another owner. The court found no technical defect, unfairness or risk of an unsafe verdict. It said the jury had been told clearly that theft could arise if the workers were complicit but Cunningham’s involvement was proved.
The court dismissed the appeal against the theft conviction. It said it would hear counsel further on whether any remaining aspects of the appeal required consideration; the judgment did not determine the appeal against sentence.