Using vehicles without authority

theAwakening

technical question:
in a prosecution under section 112(1) R.T.A 1961-2006, for taking possession of and/or using MPVs without authority, is there a presumptive element to the charge whereby once the accused is charged with the offence, the burden of proof shifts to him/her to show the court, on the balance of probability, that they had lawful authority, as per subsection 5 of the Act.

..or must it also be proven by the prosecution that the accused, that in addition to proving that accused used the MPV on a particular occasion, that he/she also knew that the MPV was stolen, presumably by way of direct evidence from the owner of the car that the accused had no permission?

i.e. is the onus still on the prosecution to prove at trial that the accused knew the car he used, or was carried in, was stolen, by way of signed admission from the accused, for example?

http://www.irishstatutebook.ie/1961/en/act/pub/0024/sec0112.html#sec112

coylemj

theAwakening wrote: »

technical question:
in a prosecution under section 112(1) R.T.A 1961-2006, for taking possession of and/or using MPVs without authority, is there a presumptive element to the charge whereby once the accused is charged with the offence, the burden of proof shifts to him/her to show the court, on the balance of probability, that they had lawful authority, as per subsection 5 of the Act.

No, presumption of innocence applies. I think you're misreading subsection 5 (reproduced below), it's purpose is to give a defence for someone who techncally didn't have permission but thought they did i.e. it allows for the defence of honest mistake which you are not allowed to use for example if you're charged with driving with an expired driving licence. It does not shift the burden of proof to the defendant.

theAwakening wrote: »

..or must it also be proven by the prosecution that the accused, that in addition to proving that accused used the MPV on a particular occasion, that he/she also knew that the MPV was stolen, presumably by way of direct evidence from the owner of the car that the accused had no permission?

Yes.

theAwakening wrote: »

i.e. is the onus still on the prosecution to prove at trial that the accused knew the car he used, or was carried in, was stolen, by way of signed admission from the accused, for example?

If he's signed an admission then he will probably plead guilty and the owner wouldn't be needed in court but if he decides to withdraw or contest the statement or plead not guilty, the owner would need to be in court to give evidence that the defendant did not have permission to drive the vehicle in order that he can be cross-examined by the defendant and in order to rebut any potential claim under Subsection 5..

(5) Where a person is charged with an offence under this section, it shall be a good defence to the charge for him to show that, when he did the act alleged to constitute the offence, he believed, and had reasonable grounds for believing, that he had lawful authority for doing that act.

theAwakening

i see. so it fundamentally differs from other cases where the burden of proof is actually passed to the accused, for example; documentary road traffic matters such as insurance, possession of firearms, offensive weapons etc..?

what about offences such as possession/handling of stolen property, in circumstances where the accused makes no admissions relating to knowing/believing the property to be stolen. Surely, in the absence of any admissions, a prosecution could be sustained solely on evidence from the owner of the property in question that it was stolen from him, and the accused had no permission to possess/handle it at the material time..

coylemj

theAwakening wrote: »

i see. so it fundamentally differs from other cases where the burden of proof is actually passed to the accused, for example; documentary road traffic matters such as insurance, possession of firearms, offensive weapons etc..?

Correct, it's up to the prosecution to prove that the defendant did not have permission to drive the vehicle. There is clearly a difference in the case of (e.g.) insurance where it would be next nigh impossible for the Gardai to prove that a driver wasn't insured beyond reasonable doubt since they would have to present evidence from every approved insurer to the effect that the defendant didn't have a policy and even then the defendant could say that he might have been insured under the 'other drivers' clause. For those practical reasons, the legislation passes the onus of proof to the defendant in that case.

theAwakening wrote: »

what about offences such as possession/handling of stolen property, in circumstances where the accused makes no admissions relating to knowing/believing the property to be stolen. Surely, in the absence of any admissions, a prosecution could be sustained solely on evidence from the owner of the property in question that it was stolen from him, and the accused had no permission to possess/handle it at the material time..

The prosecution would show (by calling the owner as a witness) firstly that the goods were stolen and secondly that the defendant had no right to be in possession of them at which point the onus of proving legitimate or innocent possesion would pass on to the defendant.

theAwakening

coylemj wrote: »

The prosecution would show (by calling the owner as a witness) firstly that the goods were stolen and secondly that the defendant had no right to be in possession of them at which point the onus of proving legitimate or innocent possesion would pass on to the defendant.

I see. is it a sufficient defence for the accused in such circumstances simply to give evidence that he did not know or believe the property to be stolen at the time, if the prosecution cannot adduce any further evidence in support of the knowledge (e.g. a inculpatory text message in the accused's phone). would negating this defence simply be an issue for cross-examination, or prior to this, a detention under section 4 of criminal justice act 1984 with the application of statutory inferences during police questioning?

Is this simply a situation where the judge is required to decide, based on the evidence presented from both sides, whether he is satisfied beyond a reasonable doubt of guilt?

coylemj

Where is this discussion going? You started asking about proof required to convict someone under S.112 of the RTA 1961, now we're on possession of stolen goods. In case I'm accused of backseat modding, I'm the only person who's responded to you so far so feel entitled to ask the question.

Kosseegan

The situation is that the prosecution has to lead evidence that the vehicle was taken without lawful authority. This is because the taking of the vehicle without lawful authority is part of the actus reus for the offence. This need not necessarily be evidence from the owner which would be ideal but an admission from the defendant or eyewitness evidence regarding the circumstances of the taking of the vehicle may suffice. This gets the case to the point where a direction on grounds of no case to answer will be refused.
The defendant has to assert that he believed that he had lawful authority and also has to give the grounds underlying this belief. A mere assertion that he thought he had lawful authority is not sufficient. If the accused does this, the prosecution will have to negative the defence. Cross examination may be sufficient to show that the accused had no reasonable grounds for his belief or it may not. The strongest evidence is the owner explaininmg the situation.
The situations where a defendant would be in a position to rely on this defence would be quite limited. It may be someone takes is late for work and takes their flatmate's car. They may give evidence that the same thing happened a month before and the flatmate told them to take the car on that occasion. They might give evidence that the was a history of cars being lent between the flatmates.
That might be sufficient, if believed to operate as a good defence. In any case where a defendant tried to rely on the defence he would have to:
1. Know who the owner was.
2. Explain how he got the keys.
3. Explain why he thinks the owner had given him a general licence to use the vehicle.

johnnyskeleton

theAwakening wrote: »

i see. so it fundamentally differs from other cases where the burden of proof is actually passed to the accused, for example; documentary road traffic matters such as insurance, possession of firearms, offensive weapons etc..?

Just to clarify, for no insurance etc all it does is raise an evidential presumption where certain facts are established. So if evidence is given that a demand was made for the insurance disc and it wasn't produced, the Court is entitled to treat this as a presumption that the person was not insured. This presumption can be rebutted and in terms of rebutting it, the defence need only raise a doubt.

It is still not entirely clear whether our constitution permits the onus to shift onto an accused in a criminal trial other than in insanity. Every time it comes up the courts seem to sidestep the issue. In the UK it is fine to have a defence which the accused must bear the burden of proof, but only on the balance of convenience. In Canada, this is not permitted AFAIK.

theAwakening wrote: »

what about offences such as possession/handling of stolen property, in circumstances where the accused makes no admissions relating to knowing/believing the property to be stolen. Surely, in the absence of any admissions, a prosecution could be sustained solely on evidence from the owner of the property in question that it was stolen from him, and the accused had no permission to possess/handle it at the material time..

The prosecution have to prove that the person knew or was reckless as to whether it was stolen. This will usually be based on the circumstances of the scenario.

johnnyskeleton

theAwakening wrote: »

I see. is it a sufficient defence for the accused in such circumstances simply to give evidence that he did not know or believe the property to be stolen at the time, if the prosecution cannot adduce any further evidence in support of the knowledge (e.g. a inculpatory text message in the accused's phone). would negating this defence simply be an issue for cross-examination, or prior to this, a detention under section 4 of criminal justice act 1984 with the application of statutory inferences during police questioning?

Is this simply a situation where the judge is required to decide, based on the evidence presented from both sides, whether he is satisfied beyond a reasonable doubt of guilt?

No. It is for the prosecution to prove that he knew or was reckless as to the goods being stolen. Mere suspicious circumstances alone are not sufficient to convict. The accused bears no burden of proof and in the absence of any evidence upon which the jury could reasonably infer an intention or recklessness, a judge should direct an acquittal.

The judge/jury don't need to hear from both sides. If there is insufficient evidence on the prosecution side, they must acquit. If a doubt is raised through cross examination of the prosecution witnesses, they must assess whether this doubt is reasonable and if so they must acquit.