Cards stolen from wallet, to report?

Claw Hammer

Peregrinus wrote: »

"Temporary appropriation" is a novel concept. There's no such thing as temporary ownership; if your rights over something are temporary in nature then, whatever else they are, they are not the rights of ownership. So asserting or exercising a temporary right over something is not, without more, an appropriation.

If what you do is not a claim of ownership, and if it is not inconstent with the firhtgs of the true owner, then it is not appropriation. Picking up a wallet that you find in the street is not a claim of ownership, and it is not inconsistent with the rights of the owner. It's not an appropriation.

Temporary appropriation is the meaning it has in the Theft Act. Taking control of property even for a short period is appropriation for the purpose of the Theft Act. The key issue is the honesty or otherwise of the action.
DPP v Gomez (1993) 96 Cr App R 359 confirmed that “appropriation” does not require adverse interference with or usurpation of the rights of an owner.

GM228

coylemj wrote: »

What you and claw hammer are saying is that mens rea was present in both cases.

That is not what I am saying, my post was specifically in relation to the following post:-

Claw Hammer wrote: »

Guilty mind simply means the intent to carry out the act which if matched with the corresponding act produces the crime. It is not the intent to commit the crime it is simple a putative element of a crime.

…to which you stated it was “rubbish”, by that post the discussion on mens rea seems to have turned into a general discussion as opposed to one specific to murder (if not than I apologise), I was speaking of mens rea in general, and as CH rightly points out every crime has its own mens rea, mens rea can be established by intention, recklessness, negligence or criminal negligence, and of course there’s the whole issue of strict liability offences where mens rea does not apply.

coylemj wrote: »

Cornell Law School disagrees. Emphasis is mine.

The prosecution typically must prove beyond reasonable doubt that the defendant committed the offense with a culpable state of mind.

The mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct

https://www.law.cornell.edu/wex/mens_rea

We are discussing Irish law right?

And how does it disagree? The Ivy League Law schools deal with US law, remember "culpable" or "guilty" state of mind does not equate to a knowledge of the law, it is more to do with acting intentionally, and so far as I know it has been held in the US courts that knowledge of the crime is not an ingredient of mens rea, in fact it even says so in your link:-

Cornell Law School wrote:

The mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct; however, a defendant need not know that their conduct is illegal to be guilty of a crime. Rather, the defendant must be conscious of the “facts that make his conduct fit the definition of the offense.”

As I said mens rea in Irish law is the intent to carry out an act, not necessarily the intent to commit a crime (remember mens reas can be subjective, objective or a mixture of both), the The People (Attorney General) vs Thornton [1952] IR 91 High Court case is often wrongly cited as authority that you must know what you were doing is a crime, the Melling vs O'Mathghamhna [1962] IR 1 Supreme Court case clarified it is the intent to carry out an act.

The confusion stems from the full Latin saying “actus non facit reum nisi mens sit rea” which means an act does not make a person guilty unless the mind is also guilty, we can thank Sir Edward Coke for adopting the Latin phrase which in it’s strictest translation means there must be a “guilty mind”, in Institutes of the Laws of England (1797) Coke basically describes mens rea as no more than an element of fault or intent, a requirement that you must know what you are doing is specifically a crime would be at odds with the doctrine of ignorantia juris non excusat.

GM228

Claw Hammer wrote: »

Temporary appropriation is the meaning it has in the Theft Act. Taking control of property even for a short period is appropriation for the purpose of the Theft Act. The key issue is the honesty or otherwise of the action.
DPP v Gomez (1993) 96 Cr App R 359 confirmed that “appropriation” does not require adverse interference with or usurpation of the rights of an owner.

The Gomez case is a UK case, in Irish law there is a requirement to usurps or adversely interfere with the proprietary rights of the owner of the property, however there is no requirement to prove that the accused person intended to permanently deprive the complainant of their property.

GM228

Claw Hammer wrote: »

It has long been established that property has to be owned by a know individual. DPP v. Valentine [2009] 4 IR 33

That is not correct, an owner ought to give evidence as to lack of consent where they are identifiable, but, they don't have to be identifiable.

The Valentine case which was a High Court case stated:-

Valentine wrote:

So far as the obligation to prove the property was owned and that the appropriation was without the owner’s consent it is the case of course that from time to time there may be difficulties in establishing an owner, the pickpocket in the crowded street being an obvious example and there the jury or judge will have to consider whether the evidence is such that the property in question is proved to be owned by the person unknown and that an absence of consent can be inferred

Property can be owned by a "person unknown" and any absence of consent can be inferred.

Claw Hammer wrote: »

The Valetine case has established that evidence of ownership must be established. It is not sufficient to say that A is the owner. Positive evidence must be offered because it is an element of the actus reus of the offence. In the event of a dispute oer ownership the prosecution would have to give evidence that either b or C is the owner to the exclusion of any possible claim to the item by A.

Again this is incorrect, positive evidence is not required, circumstantial evidence is enough. There is a previous Court of Criminal Appeal case (the position of which the High Court Valentine case could not change) confirming that ownership does not need to be established and direct evidence was not required, in The People (DPP) vs O’Hanlon (Unreported, Court of Criminal Appeal, 1st February, 1993) it was held:-

O'Hanlon wrote:

Indeed it is probably likely that it is not an essential proof at all to establish that the goods were the property of any particular person or firm; the essential proof is that they have to be shown to have been stolen goods…the court would wish to say that the proof that goods are stolen may be proved by circumstantial evidence and on occasion there may be no direct evidence such as from the actual owner or the thief but each case must depend on its particular circumstances

In 2015 and 2017 the High Court re-affirmed the position of the O'Hanlon case and held ownership and a lack of consent can be made out by circumstantial evidence.

In the DPP vs Cooney [2015] IEHC 239 case which considered both the O'Hanlon and Valentine cases it was held:-

Cooney wrote:

It seems to me that the evidence in this case goes significantly further. When challenged, the defendant gave mutually contradictory accounts of his possession of the bicycle, the latter of which was clearly highly suspicious i.e. that he had purchased the bicycle from an unknown youth for €30. In addition to that, there was objective evidence that the bicycle was highly likely to have been stolen at some point having regard to the fact that the identification markings on it had been deliberately obliterated.

In my view, there was more than ample evidence of a circumstantial nature before the District Court which could justify any reasonable person in coming to the conclusion that the property in question was in fact stolen. To borrow the words of O’Flaherty J., that fact does not have to be proved to a mathematical certainty and therefore there is no requirement for “irrefutable” evidence as suggested by the first question. The standard of proof is beyond a reasonable doubt, not beyond a shadow of a doubt

Later in the Minister for Justice and Equality vs Stawera [2017] IEHC 420 case the Velentine principle was more or less rejected in relation to consent of the owners:-

Stawera wrote:

Irish law may require that, where identifiable, an owner ought to give evidence as to lack of consent, although that is by no means clear in the Valentine judgment. Indeed, one can imagine a prosecution for robbery/murder where for obvious reasons an identifiable owner cannot give evidence of lack of consent. The proof of lack of consent will come from the circumstantial evidence