The People (at the suit of the Director of Public Prosecutions) (respondent) v Donal Traynor (applicant).

Criminal law - Appeal - Fraudulent conversion - Applicant involved in motor trade - Money received for sale of car - Money lodged in company account - No evidence that applicant converted the monies to his own use - Conviction quashed.

Criminal law - Appeal - Forgery - Document purporting to be a transfer of vehicle ownership - False declaration that original tax book lost - Whether trial judge erred in charge to jury in not distinguishing between intent to defraud and intent to deceive - Whether trial judge erred in not ascribing importance to applicant's motive in forging the document - Conviction affirmed.

Criminal law - Appeal Counts of fraudulent conversion and stealing same sum of money - Counts mutually exclusive Convictions quashed.

Court of Criminal Appeal (before Mr Justice Blayney, Mr Justice Flood and Mr Justice Shanley); judgment delivered 16 October 1996.

WHERE the applicant had been convicted of various offences of fraudulent conversion, while the proceeds of the sale of cars were not paid to the car owners, there had been no evidence that the monies involved had been converted to the use of the applicant.

On a charge of forgery, the submission that the trial judge had failed in his charge to the jury to forcefully distinguish between an intention to defraud and intention to deceive was rejected as the trial judge had explained to the jury that there must be an additional element of depriving the person of something by means of the deceit.

The Court of Criminal Appeal so held in quashing the convictions for fraudulent conversion and affirming the conviction and sentence on the forgery charge and further quashing convictions for fraudulent conversion and stealing relating to the same sum of money as these counts were mutually exclusive.

Padraig Dwyer BL for the applicant; Roger Sweetman BL for the respondent.

MR JUSTICE BLAYNEY, in delivering the judgment of the court, said that the applicant was convicted on 26 April 1994 by a jury at the Dublin Circuit Criminal Court and was sentenced to varying sentences from six months to two years, all to run concurrently. Counts numbers 1, 2 and 4 charged the applicant that he had received various sums of money for and on account of another person. In each case the sentence imposed was two years. Count number 3 related to forging, with intent to defraud, a certain document purporting to be a transfer of vehicle ownership and 6 months was imposed. Count number 5 charged the applicant with stealing the same £1,000 mentioned in count 4 and the sentence was one year.

The applicant was refused leave to appeal and appealed that refusal. Mr Justice Blayney said that it was necessary to deal with each count separately. On count number 1 the applicant was charged with fraudulently converting to his own use and benefit £5,000 received by him for and on account of Liam Doyle. The applicant and George Manek had traded as Cherrywood Motor Co for a number of years up to December 1991. In January 1992 the applicant and Mr Manek formed a new company, Practical Used Cars Ltd and traded from the same premises as before. In June 1991 the applicant agreed to sell a Bedford camper van for Liam Doyle. Mr Doyle said that he put a reserve of £6,000 on the van, later reduced to £5,000. He said that the applicant told him he had sold the van for £4,500 and offered him £4,000 which he refused to take and he never received any money from the applicant.

The camper van was sold to a Mrs Hunter for a trade in of an Opel Ascona and a cheque for £3,000 payable to Cherrywood Motor Co and the cheque was lodged to the account of Cherrywood Motor Co but there was no evidence of what happened to the £3,000 subsequently. The applicant, in a statement to gardai, said that he had sold on the Opel Ascona for £2,500 and that he had given the cheque for this amount to Mr Manek and that he would have lodged it in the company account. There was no further evidence as to what happened to it.

At the end of the prosecution case the applicant applied to have this charge withdrawn from the jury on the ground that there was insufficient evidence to support it. Mr Justice Blayney said that the court was satisfied that the application should have been granted and there was no evidence on which the jury could find that the applicant had converted any money of Mr Doyle's to his own use. The applicant had received two cheques, firstly Mrs Hunter's for £3,000 and the second £2,500 which he gave to Mr Manek. There was no evidence as to what happened to the monies subsequently. Mr Justice Blayney said that in order to sustain a charge that he fraudulently converted the monies to his own use, there should have been evidence that the applicant dishonestly took the monies or applied them to some purpose of his own and there was no such evidence. The only evidence was that Mr Doyle was not paid and there could have been a number of reasons for this. Accordingly, the conviction on this ground was quashed.

On count number 2, Mr Justice Blayney said that the applicant was charged with fraudulently converting to his own use and benefit £3,500 received by him for and on account of Darren Knight. A Toyota Corolla was bought from Cherrywood Motor Co by Patrick Knight for his son, Darren and in April 1991 it was decided to sell this car again and it was brought back to Cherrywood Motor Co to have it sold. Before Christmas 1991, Mrs Knight told the applicant and Mr Manek that she wanted the car back. It was not returned and sometime after Christmas the applicant told her that he had sold the car for £2,500. Mrs Knight refused to accept that and Mr Manek went to her house and asked her to accept £3,000 and she agreed but no sum was ever paid.

The car was sold by the company to a Mr Leary around October 1991 for £3,300 and a trade in of a Renault 4 and the purchase by Mr Leary was financed by Smurfit Finance and Leasing which gave a cheque for £3,500 to the company on 7 November 1991. This cheque was lodged to the company bank account. Mr Justice Blayney said that as on the previous count there was no evidence of what happened to the £3,500 after it was lodged to the account. In the circumstances, therefore, the conviction was also quashed. While the fact that the Knights were not paid raised a suspicion in regard to what happened to the money, there was no evidence on which the jury could have been satisfied beyond reasonable doubt that it had been fraudulently converted by the applicant to his own use.

Count number 3 charged the applicant with forging, with intent to defraud, a certain document purporting to be a notification of transfer of vehicle ownership addressed to the motor taxation office. Mr Justice Blayney said that this charge was connected with the sale of the Knight's Toyota Corolla to Derek Leary. Mrs Knight had kept the tax book of the ear and as she had not been paid the applicant could not ask for it. In order to get a duplicate tax book the applicant had forged Darren Knight's signature on the form of notification of transfer of vehicle ownership which had to be furnished to the tax office and he also signed a false declaration that the original tax book had been lost. On this basis a new tax book was issued.

Mr Justice Blayney said that the applicant challenged his conviction on this count on the ground that the trial judge had failed in his charge to the jury to bring home forcefully the distinction between an intent to defraud and an intent to deceive. Mr Justice Blayney said that the court had carefully considered the trial judge's charge and no objection could be taken to it, and it was significant that no requisition was raised on it at the end of the charge. The court was satisfied that the trial judge correctly explained to the jury that to defraud a person meant more than simply deceiving him, there had to be the additional element of depriving the person of something by means of the deceit. It was also submitted that the trial judge did not ascribe enough importance to whatever motive the applicant may have had in forging the document, however, Mr Justice Blayney said that the trial judge was perfectly correct in not attributing any importance to the applicant's motive and if it was his intention to defraud, his reason for having such intention was irrelevant.

In regard to counts 4 and 5, fraudulent conversion and stealing the same.sum of £1,000, it was conceded by the prosecution that the counts were mutually exclusive and accordingly it was not possible for the applicant to have been convicted on both. In the circumstances, the prosecution accepted that it would be unsafe to allow either conviction to stand.

Accordingly, Mr Justice Blayney said that the court would allow the application for leave to appeal in respect of all the convictions except for the forgery conviction, would treat the application as the appeal and would quash those convictions. The court affirmed the conviction for forgery and the sentence of six months imprisonment.

Solicitors: Garrett Sheehan & Co (Dublin) for the applicant; Chief State Solicitor for the respondent.