The High Court ruled that a District Court judge was wrong to dismiss a charge of possessing stolen property, but declined to remit the case for a retrial.
In a judgment delivered on 21 January 2019, Mr Justice Allen answered questions referred by District Court Judge Kathryn Hutton after she dismissed the charge against Stephen Larkin. The High Court held that prosecutors do not always have to prove beyond reasonable doubt that an accused person did not steal the property themselves. It also answered “no” to whether the District Court judge was correct to dismiss the charge. A separate question about whether the prosecution had discharged its burden did not arise.
The charge concerned a Kindle and a Samsung mobile phone. At the District Court hearing, Larkin admitted through counsel that the items were stolen. Evidence showed he had been found with them, and the prosecuting garda accepted in cross-examination that Larkin was suspected of stealing them. At the close of the prosecution case, his counsel sought dismissal, arguing that the prosecution had not proved he possessed the items otherwise than in the course of stealing. Judge Hutton dismissed the charge and stated a case for the High Court.
By the time the case was heard in the High Court, the Court of Appeal had ruled in another case that a person could be convicted of possessing stolen goods if the theft had been completed before the act of possession relied on for the possession offence. The parties agreed that this answered the first question and that the District Court dismissal was legally incorrect. The remaining issue was whether the case could, and should, be sent back to a different District Court judge, because Judge Hutton had since become a Circuit Court judge.
Justice Allen concluded that the High Court had power to remit a case stated to a different District Court judge. He then considered whether to use that power. He accepted that the defence argument had been made in good faith and noted the time that had passed. He was not persuaded that a fair retrial was impossible, and considered that the owners of the devices were unlikely to be particularly concerned by one.
The deciding consideration was fairness to others in the same position. Justice Allen said a retrial would single out Larkin from others acquitted on the same point of law whose acquittals had not been appealed. The court therefore answered the stated questions but did not remit the matter to the District Court. The judgment did not order a retrial.