CREAM TEST CASE

Manawatu Standard, Volume XLIV, Issue 1009, 7 May 1924, Page 7

CREAM TEST CASE

■■ .i. mm ■— AN EXTRAORDINARY VERDICT. ACQUITTAL FOLLOWS PLEA OF GUILTY. The case of alleged conspiracy to defraud the Cheltenham Dairy Company of £B9 18s by means of allegedly false cream tests, on which charge Henry Simpson was jointly charged with John Jens Sorens Thomasen in the Supreme Court yesterday, hall a sensational termination. Simpson pleaded guilty to the charge and Thomasen not guilty. After an all-day trial of Thomasen, the jury returned an extraordinary verdict which puzzled both His Honour, Sir John Salmond, who was on the bench, and the Crown Prosecutor, Mr Cooke. The jury found that Thomasen was not guilty of conspiracy with Simpson, hut was guilty of defrauding the company through Simpson's neglect. The Judge was in a quandary as to the legal position involved, but on the grounds that it takes two or more people to conspire and that the indictment of Simpson could not stand the latter was allowed to withdraw his plea of guilty and both the accused were discharged. On resuming after the luncheon adjournment, Mr Cooke, for the Crown, made an application which His Honour granted for the accused Simpson to be called as a witness. COMPLAINT AGAINST TESTS. Simpson, the first witness, stated that he was formerly employed by the Cheltenham Dairy Company as cream collector. His duties included that of taking a sample of the cream from the can, the sample being taken from about halfway down the can. In October last accused (Thomasen) came to witness and complained about his test, stating that he was not receiving a fair deal from die company. To His Honour: He had been receiving supplies of cream from accused for :wo seasons. Continuing, witness said that, follow;ng the complaint from accused about his tests, he told him he would see what he could do about it. Mr Cooke: What did you do after your conversation with accused? Witness: I do not know that I did anything. Further questioned by Mr Cooke, witness admitted that he had not stirred the cream in the can before taking the sample for testing. His Honour: What effect would that have? Witness: It would mean that there would be more butter-fat at the top of the can than at the bottom. • Mr Cooke: Did Thomasen know you were doing this? Witness: Not so far as I knew; I never told him. APPLICATION AS HOSTILE WITNESS/ Mr Cooke (to His Honour): I make application to have this man treated, as a hostile witness. He has already made a statement in the case and now- he is saying things contrary to the statement he made. Mr Ongley (for accused) : I don't think there are any grounds for treating the witness as hostile. His Honour: If a reluctance to speak the truth is established Jdiere would be. The point was not pressed by Mr Cooke, who continued to question witness. Witness admitted to Mr Cooke that what he had done was wrong. His Honour : You knew- that what you were doing was a breach of trust with your employers. Well, then, why did , you do it ? Witness could not explain his conduct. "I don't know why I did it," he said. In reply to Mr Ongley, witness admitted that be had become very careless about his method of taking cream samples, concerning which numerous complaints had been sent to the company by supvjiers. During the three and aquarter years witness had been as collector the manager had gone round the district with him to see how he carried out the work. That was in the first season witness was with the company, but afterwards he was not under supervision. Patrick Eallance Desmond, secretary of the Cheltenham Dairy Company, detailed the duties carried out by Simpson while employed as cream collector on the Stanway'round of the company, and said that he was supposed to agitate the cream before taking the sample. Failure to agitate the cream to an even consistency meant that an incorrect test would result. The nature of the sample of cream taken without agitation would depend on the part of the can from which it was taken. A top sample woTild mean an inflated test and the lower down the can the lower the test would be. Continuing, witness said that Simpson was absent from work through illness from December 8 to January 15. The first period in November accused

had a test of 45 per cent., in the second period 44 and in the third period in that month his cream showed a test of 39 per cent. In the first period of December accused's test was 36 per cent., in the second period 23 per cent., and in 'the last period of December it was 27. The test in the first period of January was 31' per cent., in the second period 35 per cent., and for the last period in January it was 43. DISCREPANCY IN TESTS. Witness, continuing, said that the discrepancy in the tests resulted in the setting up of a special committee of the directors to investigate .the discrepancies. A meeting of directors was held subsequently at which accused was present and expressed a wish to refund the money in connection with the inflated tests. Simpson was» arrested on -February 16 last and the meeting referred to was held subsequent to that date. David Hull, manager of the Cheltenham Dairy Company, stated that, during the time Simpson was absent from his work through sickness, he (witness) noticed that tests went down, but when he returned to work' they went up again, but as Simpson resumed during the, second period of January witness, who was suspicious, decided to wait until Simpson had been back at work for a whole period. As a result of the discrepancies the police were , informed and Simpson was arrested. To Mr Cooke: It was impossible to take a correct sample of cream with- | out stirring it beforehand. Simpson knew this perfectly well. Percy Dallison Wildbore, employed in the test room of the company's factory, stated that part <of his duties was to weigh the cream and assist the last witness in making the cream tests. He gave evidence of the disparity in the cream tests on various samples received. Constable Thorn, stationed at Feilding, stated that, on April 11, he took two samples of cream from accused's milk can, the contents of which he stirred well with a dipper before taking the sample. The sample bottles were sealed by witness who took them down to Wellington and handed them over to the Government analyst. Simpson was arrested on February 16. Subsequently Thomasen came to the police station and he made a state-1 ment.

Mr Cooke read out the document, in which accused stated that he had complained about his cream test to Simpson, who stated that it would not be much use accused seeing the factory manager about it as there had been a number of complaints received about the tests. Simpson suggested that he could arrange matters, and ten days later when he again saw Simpson accused expressed satisfaction at the improvement in the test. Accused had paid Simpson nothing for his services. Sergeant Cahill, stationed at Feilding, gave corroborative evidence. This concluded the case for the prosecution and Mr Ongley did not elect to call evidence. NO EVIDENCE OF CONSPIRACY. The Crown Prosecutor then addressed the jury. Mr Ongley submitted to the jury that the accused being charged with conspiracy to defraud—a most serious offence—the onus was on the Crown to prove that he had conspired with Simpson. ' The latter had, admittedly, been careless in his methods of taking his samples, but to have spent a long time at each supplier using the plunger in the cream to mix it thoroughly would have meant that Simpson would never have covered his round in the course of the day. Counsel submitted that the factory manager had not exercised proper supervision. The whole case reflected nothing worse than bad management, and the fact that Simpson had had__too much rope and had become careless in his work. There was no evidence of conspiracy. AN EXTRAORDINARY VERDICT. His Honour tlipn summed up at length and the jury retired at 5.3 D p.m. After an absence of 35 minutes the jury returned with a ve*lict that Thomasen was not guilty of conspiracy with Simpson, but guilty of defrauding the company through Simpson's neglect. The Judge:"'Then I must take that as a verdict of not guilty, but what about Simpson?" Foreman of the jury: "We did not take Simpson into consideration." His Honour: ''There seems to have been a misapprehension that because Simpson was not in the dock he did not enter into the case, but he has already pleaded guilty to the charge of conspiracy. What did the jury expect would be the result of their verdict?" The foreman: "We simply dealt with the question of conspiracy." His Honour: "Am I to understand then that you are of the opinion that Simpson did not conspire with Thomasen?" The foreman: ' '"We find that Thomasen did not conspire with Simpson." His Honour: "Well, "the only thing

to do is to bring Simpson back to the bar." Simpson was then brought into court and addressing him. His Honour said: "Well, Simpson, although you have pleaded guilty to the charge of conspiracy the jury' say you did not .conspire although you yourself appeared to think you did. You will be permitted to withdraw your plea of guilty and substitute one of not guilty." Both accused were then discharged, but Simpson was detained in custody on other charges of a similar nature.