The High Court has refused an application to quash a conviction for handling a stolen cheque, ruling that the Circuit Court decision was not shown to involve a breach of natural justice or a fundamental error of law.
The applicant, Robert Balaz, sought judicial review of a Circuit Court judge’s decision on 5 February 2008 to affirm his District Court conviction and six-month prison sentence for handling stolen property. The judgment, delivered by Mr Justice Hedigan on 5 March 2009, concerned the s. 18 charge under the Criminal Justice (Theft and Fraud Offences) Act 2004.
Balaz had pleaded guilty in the District Court in June 2007 to four charges: handling stolen property, possessing a false identification card, possessing a false driving licence and burglary. He later appealed the convictions and sentences for handling the cheque and burglary, and sought to change his pleas to those two charges, saying he had been under great stress and wanted to dispose of the matters quickly. The Circuit Court allowed the change-of-plea application and adjourned the appeals so prosecution witnesses could attend.
The burglary appeal was ultimately adjourned generally with liberty to re-enter after the Circuit Court judge identified a problem with its sentence. The handling charge proceeded. At that hearing, the judge had received witness statements relating to both appeals and retired for about 20 minutes. The High Court said it was reasonable to proceed on the basis that he had considered the statements, but found the bias challenge had been waived because Balaz raised no objection at the hearing despite being aware of the circumstances.
The High Court also considered the bias argument on its merits. It held that any limited appearance of prejudgment from the judge’s consideration of the statements was outweighed by the fairness of the hearing. Balaz had been able to cross-examine prosecution witnesses, give evidence and make submissions through his legal representatives. The judge had also, in the High Court’s words, effectively dismissed the burglary charge on his own motion.
The legal challenge concerned ownership of the cheque. Prosecution witness Gerry McCabe, a director of McCabe Construction Ltd, said the cheque belonged to him. Balaz argued that it belonged to the company, meaning an element of the handling offence had not been established. The judgment records conflicting accounts of McCabe’s evidence on ownership and uncertainty over the cheque’s identity and value.
The High Court said judicial review was not an appeal that allowed it to reweigh the evidence. It treated the Circuit Court judge’s view that the cheque belonged to McCabe as a finding of fact, which was not reviewable in these proceedings. The court refused the relief sought; it did not overturn the conviction or sentence.