FOUND GUILTY

Timaru Herald, Volume CXXXVII, Issue 19784, 27 April 1934, Page 6

FOUND GUILTY

FALSE PACKING OF WOOL FARMER BEFORE THE COURT A case of considerable interest to wooigrowers was heard in the Supreme Court in Timaru yesterday, before His Honour Mr Justice Johnston, when John Simmons, farmer, of Makikihi, was charged that at Timaru, on or about February 7, having an intent to commit an offence, namely to obtain money by a false pretence, did an act for the purpose of accomplishing his object, and thereby attempted to obtain money by a false pretence. The alleged attempt consisted of packing 13 bales of wool, branded S.S. in such a manner that at each end of the bales, fine wool valued at 21d was packed, while in the centre there was coarse wool valued at 9d, thereby falsely pretending that each bale contained only fine wool. Mr W. D. Campbell conducted the case for the Crown, and Mr W. H. Walton (Timaru) with him Mr C. S. Thomas (Christchurch) appeared for the accused, who pleaded not guilty. The following jury was empanelled: Messrs E. Darroch (foreman), J. F. Lewis, G. Findlay, E. Jones, H. C. Bradley. W. J. Rosevear, A. B. Ramsay, J. McKercher, G. Nicol, C. F. Nixon. J. A. Clarkson and L. Mcß. Moore. Counsel for accused all but exhausted his right of challenge. All witnesses were ordered to leave the court. Outlining the case, Mr Campbell said that the jury would have observed from the indictment that the accused was not charged with any actual offence, but he was charged with attempting to commit an offence. It was alleged that the accused intended to swindle the woolbuyers who were attending a sale in Timaru on February 9. He had put in a line of 13 bales, and these bales, it was alleged, had been falsely packed, having fine wool at the ends, and coarse wool in the centre. The suggestion would be made that the wool had been deliberately put up in this w’ay with the object of deluding the buyers. Mr Campbell explained the method adopted in the stores of displaying the wool, and said that Mr Milnes, one of the buyers, having some suspicion of accused's wool, made a close inspection and found that it had been packed with fine wool at the ends and coarse wool in the centre. Later the buyers demanded that all 13 bales should be cut open, and every one was found to be packed in similar manner. What was the deduction to be made? Only that the wool had been so packed that the buyers would be deluded. The next thing was, who would do this? The suggestion would be that it could only be the man offering the wool. It would not be necessary for the Crown actually to prove that the accused himself had committed the offence. If they thought that the accused had packed the wool with the intention of securing a better price, then they would have disposed of the first part of the case. They had then to decide when the accused had carried his intention into effect.

Shearer’s Story. James Henry Alty, shearer, residing at Waituna, said that he had known the accused for a number of years. He had shorn accused’s sheep during the last two years. This year he commenced to shear accused’s ewes on January 20. and he finished on January 26. Witness and his father, who had commenced a day earlier, shore 1200 sheep, mostly Corriedales, but there were one or two Romney-Cross. They commenced shearing at 5.30 a.in. and finished at 5.30 p.m. Breakfast was held between 7 and 8 a.m. Besides witness and his father, Allan, and occasionally Tom Graham, would be in the shed before breakfast. Before breakfast, if there was only one in the shed, no pressing would be done, but if there were two in the shed, some pressing might be done. The pressing was done during the day, and was generally completed by night. From the shearing stand, it was not possible to see the press. To Mr Thomas: The shearing stand was in the north-west corner of the building, the sheep being put in the south-west corner. A wall which prevented witness seeing what was happening in the other part of the shed ran down as far as the sheep pens. There was an old press into which bellies and pieces were placed, and this he could see, but the big press he could not see. His shearing was not continuous, for at one period he had been engaged in crutching. There were about 1000 Corriedales in the number shorn, the remainder being RomneyCross. While witness was working, Ivan Simmons and his brother Allan, and Graham would be taking wool away from the shears, and they would be away for 20 minutes or half an hour. The whole process of pressing, sewing, and replacing the bale with a new pack would take half an hour if they were in a hurry. The periods the men were absent were consistent with them having been engaged in pressing. There were times when the accused did odd jobs about the shed, and there were times when he went out of the shed, and witness could not say what he did. He had seen Ivan, Allan and Graham skirt wool, but ne could not see what they did after that. If there was halfbred wool in the press, out of the next lot collected, halfbred wool would be added to the press, the crossbred being placed in the bins. The skirting and classing of the wool was under the direct supervision of the accused. On the average, witness and his father would shear, between them, 20 sheep in half an hour. Witness could not say whether the accused had had anything to do with the packing of the wool, nor could he say who had tramped it. To Mr Campbell: The bales were m two halves, and it would be an o<?sv matter to put good wool on the bottom of each half, so that when the bale was pressed, the good wool would be at each end. To Mr Thomas: The shed was a fairly small one. The wool on the Corriedales was strong grown. Mr Thomas said that he could shorten the case by admitting that the wool had been consigned to Timaru, and he would admit that it was accused’s wool. Mr Campbell said that the witnesses were short, and he preferred to have the evidence. G. C. Ellis, carrier, of Makikihi, gave evidence as to having carted the wool from the farm to the railway. Stacking of Wool. William J. Dickson, foreman in the C.F.C.A.’s wool store, said that he knew the 13 bales of wool branded S.S., which belonged to the accused. Witness stacked the wool in four tiers of three, the odd bale being on the top. The bales were stacked with seven tops facing the alleyway, and six bottoms. Seven of the bales were opened. Michael Joseph Friel, stock agent employed by the C.F.C.A. at Waimate, said that he had known the accused for 15 years, and right through that

period he had been farming. Witness took the specifications of the wool branded S.S., accused having given him the particulars. Clip Examined. Frederick Cecil May, in charge of the wool department of the C.F.C.A. in Timaru, said that he had had 20 years’ experience with wool, both as a farmer and broker. The basis of breeding was the Merino, a finewoolled sheep, and when they put a long-woolled ram to a finerwoolled ewe, the progeny was a halfbred, and when they put a long-woolled ram to a halfbred ewe. they got a threequarterbred. Next, when they put a long-woolled ram to a three-quarter-bred ewe, they secured a crossbred. Continuing, witness said that buyers were allowed 73 hours to inspect a catalogue comprising 21.000 bales. For the February sale in Timaru, the wool was available for inspection on the 6th, 7th and Bth, the sale being on the 9th. The wool belonging to the accused was in the store ready for inspection on February 5. Accused was in the store, and asked witness to value his wool. This he did, valuing it at 21d. Accused said the price was absurd, remarking that it was not worth more than 16d. Witness said that in his opinion it would bring 2ld, and accused said to sell the wool for whatever it brought. On February 7, witness made a close inspection of accused’s wool along with some woolbuyers, who included Mr Milne, Mr Smith and Mr Hill. The stack was climbed by Mr Milne, who slashed open the top bale, and asked witness to have a look at it. All but six inches at each end of the bale was exposed to view. Witness saw that the wooi varied in quality. The fine wool showed at each end of the bale, and there was coarser wool in the centre. A bale was four feet long, and there was about two feet of coarse wool in the bale. The wool at the ends was worth about 21d, and that in the centre about lOd. Later the same day, witness inspected the remaining bales in the lot. He had the wool pulled down flat on the floor, and each bale was opened up. In each bale there was coarse wool in the centre and fine wool at each end. It was customary to inspect the wool from the ends of the bales, and some of the bales could not be inspected, excepting through the ends.

Witness identified samples which had been taken from the 13 bales. He went on to say that the wool had not been offered for sale, having been withdrawn. On the morning of February 9, accused instructed witness to have the wool reclassed, and this had been done.

To Mr Thomas: The standard of classing in station lines and ordinary farmers’ lines varied. The ordinary small farmer did not have the sam3 facilities as the bigger man, nor werj his men as qualified. A small farmer regarded his flock as halfbred, even though there might be a few crossbreds in it. It sometimes happened that a farmer called a three-quarter-bred flock a halfbred flock, and as a result of this, firms had instituted a system of reclassing. It was true that some farmers preferred to take what they could get for their mixed wool, rather than pay the reclassing charge. If accused’s wool had been mixed up it would have brought round about 16d, and that was the price mentioned by the accused. It was a fact that on a Corriedale it was possible to find halibred, three-quarterbred and crossbred wool. Witness admitted that it was possible that a lad of 17 might have made a mistake in the quality of the wool when placing it in the pack. It was a fact that a buyer bought on inspection, and did not place reliance on the descriptions in the catalogues. Earlier in the season, accused had sold his hogget wool, and he had inspected it before the sale. On that occasion the wool was not in the alleyway, but 10 or 15 feet from the wall. The buyers pulled "the wool out, and spread it over the floor almost to the wall. Accused had said: “They must like my wool the way they pull it out.”

Mr Thomas: If these bales had been packed the same way as the 13, they could not have been missed? Witness: That is so.

And yet accused is alleged to have fraudulently packed his bales within a few weeks of this incident? —That is so. Is there any crossbred wool in the halfbred sample before • the court?— Yes, a little.

Is it not a fact that the sample from the centre of the bales contains halfbred, three-quarterbred and crossbred in equal proportions?—Yes. Did it not sometimes happen during shearing that the farmer himself did not do any of the packing?—That is so. At the time of the trouble accused was away?—Yes. You communicated with him, and he said he could not understand it?— Yes, he said that. You did not notify him that samples were going to be taken, and criminal proceedings instituted?—No. The proceedings were instituted' by the Woolbuyers’ Association?—Yes. Do you know that someone acting on behalf of the Woolbuyers’ Association went to accused’s place and examined a boy of 17 regarding the alleged offence, while his father was absent? —Yes. Mr Campbell: Can you recall any instance in which the bales were packed like these?—No. What price did the hogget wool bring?—Four bales of halfbred wether brought 14*d. and we valued it at lid. Then 10 bales brought 16d, and we valued it at 14d. Expert’s Evidence. Pelham G. Ellis, woolclasser for the C.F.C.A., said that he reclassed the wool belonging to the accused. There was fine wool at both ends, and coarse wool in the centre. Speaking of wool generally, witness said that it was classed on degrees of fineness,, irrespective of the breed of the sheep. At this stage the court adjourned for lunch. On resuming at 2 p.m. the Crown called its final witness, Edwin Milnes, woolbuyer, a resident of Christchurch. Witness said that on February 7 he was inspecting wool in the C.F.C.A. store with the intention of making purchases at the sale on February 9. He inspected a lot of 13 bales branded S.S.. and made a valuation of the lot. To make his valuation, he “pulled” the wool so as to examine it for quality. The wool displayed was intended to represent the quality of all the wool in the bale. He examined the quality of this wool, but did not put a price on, as he, had not received his limits. He graded this particular wool as fine. Generally they were allowed three days to inspect, but on this occasion they had only two days. Two inspections were made of the accused’s wool. At the inspection before lunch on February 7, three bales were cut down the centre of the side, from end to end, and they found that the wool in the tentre was of a lower quality to that at the ends of the bales. After lunch, the whole 13 bales were inspected, and they found that at the ends there was approximately one foot of fine wool, and in the centre two feet of coarse wool. The fine wool he valued at 21 id, and the coarser wool at 9id. Witness and other buyers took small portions from the ends and centres of the bales, which were fair samples of the wools in the bales. Four or five members of the Woolbuyers’ Association’s committee were concerned in the drawing of the samples. To Mr Thomas: He did not maintain

that the wool in the centre of the bales comprised an equal percentage of three classes of wool. The sample might do so, but not the bales. Buyers did not buy on description, but on examination. It was true that in ordinary farmers’ lines there were mixed classes, but in this case there were divided classes. Mr Thomas: Are you an official of the Woolbuyers’ Association? Witness: Yes. What are you?—l am a member of the committee. Do you approve of the action that was taken of sending a man out to question the son of the accused, in the absence of his father, for the purpose of securing evidence? Witness did not answer the question directly, and His Honour said that the question was hardly a fair one, for the witness was being asked to comment on something which might have been improper. He did not know about the action of his solicitor. This concluded the case for the Crown. At this stage Mr Thomas made application to His Honour to hear argument on a legal point in chambers, and this His Honour agreed to do, the Court adjourning for 15 minutes. When the Court resumed, Mr Thomas indicated that he did not intend calling any evidence. Crown Solicitor’s Address. Addressing the jury, Mr Campbell asked them to put out of their minds any prejudices or favours they might hold towards the accused. The only interest of the Crown was to have a fair and impartial trial. It was not their duty to have citizens turned into criminals. The facts in the case should not cause them any difficulty. Accused was not charged with representing any particular class of wool; it was simply alleged that at the ends of the bale was fine wool, and that in the centre was coarse wool. It was represented that this was deliberate, and could only have been done with the object of misleading the buyers. It was not a case of one, two or three bales, but the whole 13 of them. The buyers came along and they were given a sort of assurance that the wool displayed represented all the wool in the bales. It was quite true that at times the buyers did drag the whole of the wool out; they had this privilege, but they were entitled to believe that the representation made to them was genuine. Even if a man so packed the bales, and it was discovered by the buyers, that did not let him out of the attempt to defraud. In amongst the fine wool at the ends of the bales, there was only one small piece of inferior wool. The next question to consider was who had done the packing. Who had the motive to do this except the owner, whose pocket was going to benefit? It had been suggested that the accused’s sons might have done it, but he was about the sheds all the time the packing was done, and yet he was supposed to know nothing about it. If they were satisfied that the packing of the bales was no action, and that it was done by design, then they would have disposed of the two points they had to consider, the one being intent to commit a crime, and the other being the commission of an act leading up to the perpetration of the crime. If there was both the intent and the act, that would constitute the offence of attempting to commit a crime. If there was any doubt about the matter, then the accused was entitled to an acquittal. The matter was of grave importance to the whole country, for it involved the ethics of honest trading.

Submissions For Defence. Mr Thomas made reference to the discussion which had taken place since the case first came to trial. He asked them to forget anything they had heard, and to cross out of their minds any opinions they may have formed. If they did not do this, then they would not get the fair trial they desired. The case was that the accused faked the 13 bales of wool which he sent in to be sold. They had to be satisfied that the accused packed or directed the packing of the wool, and they had also to be satisfied that he did this with the idea of fraudulent intent. The onus of proving those two things rested with the Crown, and what was the Crown case? He had been appearing in the Court for a number of years, and he did not think he had ever been in a thinner case. The wool had come from the accused’s place, and he had been shown to have been about the place, and nothing more. The whole of the case for the Crown was based on suggestion and suspicion, and he submitted that there was no evidence on which they could convict. The Crown solicitor had not taken them through the evidence and submitted that it was compatible with guilt, and why? Because he could not do so. The evidence, in a sense, alleged that every man in the shed was involved; in effect, that they were crooks. Was it likely that all the men in the shed were conspiring to defraud? Was it likely that all these men could be about the shed and not see what was going on? In December, the accused sent his hogget wool into the C.F.C.A., to be sold. He went into the store and saw the wool, practically all of it, spread out on the floor for the inspection of the buyers. The accused saw •how the buyers acted, and yet the Crown would have them believe that the accused, having seen this, deliberately sent his wool in falsely packed. Was this at all likely? It was an improbability that amounted to an impossibility. Mr May had said that some farmers were conservative, and elected to take an average price for their wool rather than pay the reclassing charges. The accused went along to see his wool, and asked May to value it. He had placed 21d on it, but Simmons had disagreed with him, saying that he thought it was worr.h only 15d. Was that the action of a guilty man? He submitted that it was not. The accused was an average farmer, and it could not be expected that he would know everything about wool. They had seen the experts at work that day, and they had not been able to agree. Certainly Mr May and Mr Ellis had agreed, but Mr Milnes’s story had been entirely different. Mr Thomas suggested that on what he had stated, he could ask the jury to throw the case out of Court. If they did that, it would be all right, but people would say, “Yes, that is all right, but what about the layers?” There was no onus on him to prove it; no explanation had been given by the Crown; but after hearing Alty’s evidence, it must be apparent that there was a simple explanation. Alty could not see who was working the press, but he could give times as to how long Allan and Graham were absent. They were away exactly the length of time necessary for pressing. Allan and Graham, then, commenced to pack. The son Ivan picked up the wool from the shears and took it to his father for skirting and classing. The fine skins carefully classed by the accused would be put in each side of the bale, which was divided in two. By this time the other three would be back on the job, and the accused would then go about his ordinary jobs. The other three, less experienced, would skirt themselves, and their wool would go on top of what accused had done, and when the two halves were pressed, this inferior stuff would be in the centre. That was the whole process.

Features of Case. Mr Thomas went on to refer to certain features of the case which, he said, should be commented on. The first was in regard to the taking of the samples. The case in the first place was a private prosecution, and samples had been taken of the bales. Why had not the bales been kept for the jury to see? If the matter had been in the hands of the police, they would not have acted in such a manner. When accused asked that his wool be reclassed it had been done. When the accused had been informed of the matter, he had said that he could not understand how it had happened, but he thought it better to reclass. Since that time right up to the present, noone had asked the accused for an explanation. It had been known that the accused was absent, and yet two men went out to the farm to try to get evidence from the son concerning a matter in which the father was involved. What did the jury think of this? It was a dastardly thing to do. Mr Thomas suggested that the woolbuyers had had inflamed minds, and they had stirred the matter up until they had seen what was not there. If there was any reasonable doubt at all, then they could not convict. The only evidence before the Court was that the accused had not done the packing. His Honour Sums Up. Summing up, His Honour said that approaching the matter in a dispassionate manner, they would observe that the Crown had to prove its case, and if they had any reasonable doubt in the matter, they would not convict. His Honour explained the law relating to an attempt to commit a crime. Packing might be done badly in a number of ways, but false packing could only be done with the idea of concealing the true state of affairs. This was what the jury had to decide in this case. They had to look to the actual packing, and by whom the packing had been done. The question of classing was a much debated one; whether the buyers or the sellers had most to gain. All parties had to be considered; not only the person deceiving, but those deceived. The evidence had shown that the buyer bought on quality and not on description. Wool was not sold on sample, and it was not a case of a sale by weight. Here the man was not guaranteeing his wool, but at the same time a man could so pack his wool intending to represent that it was something it was not. One of the witnesses had said that he did not take account of what class of wool it was; whether it was halfbred, threequarterbred or otherwise. His Honour said he did not think that the jury should take that line, but they should consider that the accused had sent in the wool from his flock, which he regarded as a halfbred flock. Necessarily, then, there must be in these bales various classes of wool. How would the buyer approach that wool? If a buyer knew the wool, he would know how to go about the matter, having had experience of the class. He would take out a piece of wool, which might be a very fine piece. He would not value that at 28d. because he would know that there would be less valuable pieces in the bale. However, he had the opportunity of pulling all the wool out, if he so desired. The accused must have known this, and he must have known that the buyer would value on the sample taken from the ends. He was entitled to make his clip attractive, but he was not entitled to pack it so that it would act as a snare. The Crown had to prove that the accused did the packing; that he did it with intent to defraud; and he would add further, that he faked the packing. His Honour said that it was argued by the defence that if one was guilty, then the lot were guilty. This was all right in a sense, but it cut against the defence in that if such was the case the accused must have known what was going on. So far as the conduct of the accused was concerned, there was nothing in this to suggest that he was not an honest man. However, they had the samples which had been taken, and these should assist the jury to an extent, ihe samples had been taken by four or five buyers, and it might have been better had there been a representative of the accused present. He was not suggesting that the buyers had taken an unfair sample, but the jury were entitled to come to this conclusion. The final question they had to decide was whether the packing was a faked packing, and that it was done with the idea of misleading the buyers. Was it done by the accused, or under his direction? If so, they would have to find him guilty. If they did not think the accused had done the packing then- they would have to find him not guilty. The jury retired at 4.42 p.m., and returned at 6.15 p.m. with a verdict of guilty.

Sentence Deferred. Mr Thomas said he did not know what His Honour proposed to do in regard to sentence. The difficulty was that he proposed returning to Christchurch that night. He did not know whether His Honour would sentence accused right away, or allow the matter to stand over. His Honour: Are there any questions you want me to hear? Mr Thomas said that he would like the question reserved as to whether there was any evidence to go to the jury, and also as to whether the intent had reached the stage of attempt to defraud. His Honour said that cn the whole it might be better for him to defer sentence until the morning. He could hear counsel in chambers on the points raised. Mr Thomas asked if His Honour would consider the question of bail. His Honour said that he could not do that at present. He added that he would defer sentence until this morning, as he would have to take into consideration the questions which counsel had put forward for consideration for the Court of Appeal. The Court then adjourned until 10 o’clock this morning.