LAW REPORT.

New Zealand Police Gazette, Volume XXXVIII, Issue 19, 14 May 1913, Page 295

LAW REPORT.

(“ New Zealand Law Reports,” Vol. xxxii, page 428.) [Court op Appeal—(Stout, C.J., Denniston, Edwards, Cooper, and Chapman, JJ.) — Ist and 21st October, 1912.] Rex v. Tier.

Criminal Law Habitual Criminal victed ” “ Four Occasions ” Numerous Counts for Separate Offences—The Crimes Act , 1908, Section 99.

The prisoner pleaded guilty to an indictment charging him with breaking and entering a certain shop. The presiding Judge sentenced him to five years’ imprisonment with hard labour and declared him to be an habitual criminal, relying in support of such declaration on a conviotion under a general verdict of “Guilty” upon an indictment containing five counts charging five offences in respect of four separate acts, and upon a plea of “ Guilty” to a further indictment containing four counts charging four offences in respect of two separate acts. Both the conviction and the plea of “ Guilty ” were taken upon the same day. Held by the Court of Appeal (Edioards, Cooper, and Chapman, JJ.; Stout, C.J., and Denniston, J., dissenting), That the declaration should be quashed, the prisoner having been “ previously convicted ” on two occasions only, and not “on at least four occasions” within the

meaning of section 29 of the Crimes Act, 1908 Case stated by His Honour Mr. Justice Chapman for the opinion of the Court of Appeal, pursuant to section 442 of the Crimes Act, 1908. The case was as follows : The prisoner pleaded guilty before me to an indictment charging him with breaking and entering a shop on Lambton Quay and stealing therein the property of Charles Hill and Sons. On the 9th of August, 1912, I sentenced him to five years’ imprisonment with hard labour, and declared him to be an habitual criminal. In so sentencing him 1 relied on several previous convictions in respect of charges embodied in two indictments which I have abstracted below. The only distinction between this ease and that of Rex v. Ehrman (31 N.Z. L.R. 136) is that which may arise upon the circumstances shown in the abstract. If the prisoner was not liable to be treated as an habitual criminal it is for the Court of Appeal to deal with the sentence under section 445, subsection 1, paragraph (c), of the Crimes Act, 1908. First indictment: First count —Breaking and entering and theft (warehouse of Gollin & Co.). Second count—Receiving stolen property (same property as above). Third count— Breaking and entering and theft (warehouse of H. Morris & Co.). Fourth count—Breaking and entering and theft (warehouse of John Keir). Fifth count—Breaking and entering and theft (shop of V. R. Simpkiss). The prisoner was, on the 13th of May, 1910, convicted under a general verdict of “ Guilty,” and was on the 16th of May, 1910, sentenced to two years’ imprisonment with hard labour.

Second indictment: First count—Breaking and entering and theft (shop of J. E. Lindberg). Second count—Breaking and entering with intent to commit theft (same property as above). Third count—Breaking and entering and theft (shop of E. Pearoe & Co.). Fourth count—Receiving stolen property (same property as above). The prisoner, on the 13th of May, 1910, pleaded guilty, and was on the 16th of May, 1910, sentenced to two years’ imprisonment with hard labour, concurrent with the sentence on the first indictment. O'Leary for the prisoner :

The declaration was made under section 29 of the Crimes Act, 1908. The question is whether the prisoner had been convicted on four occasions. The two indictments contained nine charges in respect of six independent acts. The section has been construed in Rex v. Steele (29 N.Z. L.R. 1039), and Rex v. Ehrman (31 N.Z. L.R. 136). In Steele’s case there were separate indictments for each offence, and separate informations in respect of the pleas of “Guilty ” before the Magistrate—not, as here, only two indictments. So in Ehrman’s case there were sufficient conviotions on separate indictments to bring him within the section. Each indictment and the proceedings thereon is one occasion only, and the Court oannot split the indictments into counts and treat the conviction on each count as a separate occasion. The verdict is one verdict upon the whole indictment. [Edwards, J.—Surely there is a separate verdict on each count. If the conviction as to one count could be quashed, would not the conviction stand as to the others ?J One indictment might contain several counts in respect of the same act, and a prisoner might, if the conviotion on each count is held to be a separate occasion, be declared an

habitual criminal for one act only. This is a result which was not intended, and the Court will guard against a construction which would entail such a result. The Solicitor-General, for the Crown : The decision in Rex v. Steele (29 N.Z. L.R. 1039) applies equally to separate counts as well *as separate indictments. A distinction must be drawn, however, between cumulative counts and alternative counts. For alternative counts the principle in Rex v. Steele (29 N.Z. L.R. 1039) does not apply, as there are not distinct acts but only alternative counts in respect of the same criminal act. If there is only one indictment with five counts, each in respect of a separate act, there, possibly, if there is a conviction on all counts, the four would not be previous occasions, but four contemporaneous occasions, and the prisoner could not be declared an habitual criminal. But, following the deoision in Rex v. Steele (29 N.Z. L.R. 1039) to its logical conclusion, there is no distinction between separate counts and separate indictments. The nature of separate counts is discussed in Latham v. Reg. (5 B. & S 635), and to all intents and purposes two counts are two indictments. See also Stephens’ Digest of Law of Criminal Procedure (p. 151) and sections 388 and 397 of the Crimes Act, 1908. A verdict of an indictment containing three cumulative counts is a distributive verdict on each count, and there is a conviction on each count.

O’Leary, in reply, cited Castro v. The Queen (0 A.C. 229, at p. 235)

Cur. adv. vult.

Stout, O.J.: — In this case the prisoner had been convicted on the 13th of May, 1910, under a general verdict of “ Guilty ” on an indictment in which there were five counts. The first and second counts were alternative counts, but four of the counts were for four different and unallied crimes—viz., 1, Breaking and entering and theft in a warehouse of Gollin & Co. ; 2, breaking and entering and theft in a warehouse of H. Morris & Co. ; 3, breaking and entering and theft in a warehouse of John Kier ; 4, breaking and entering and theft in the shop of V. R. Simpkiss. On the same day he pleaded guilty to another indictment in which there were four counts, but two of them were alternative. The two main counts were for distinct crimes—l, Breaking and entering and theft in a shop of J. E. Lindberg; and 2, breaking and entering and theft in a shop of E. Pearce & Co. On the 9th of August, 1912, he was found guilty of breaking and entering a shop belonging to Hill & Sons, and sentenced to five years’ imprisonment with hard labour and declared to be an habitual criminal. The question is whether that declaration is valid. *- This Court has dealt in several cases with the construction of section 29 of the Crimes Act, 1908, which makes provision for a declaration that a prisoner is an habitual criminal. The leading case is Rex v. Steele (29 N.Z. L.R. 1039). In that case the prisoner had many convictions against him, and there stood against him convictions on four separate indictments. These convictions were, however, on only two separate days, and the question was raised whether them could be different occasions on one day. The words of the section are, “ Where such conviction in respect of an offence included in Class II . . . and such person has been previously convicted on at least four occasions of any offence,” &c. Subsection 2 says, “ This section shall apply whether suoh previous convictions took place within or out of New Zealand, and either before or after the coming into operation of this Act.” It will be noticed that what is given prominence, if not dominance, is the “ previous convictions,” not the “occasions.” There is no doubt that the prisoner has been previously convicted of six offences. Were the convictions on at least four occasions?

In Steele’s case there were at least four separate indictments, four separate pleas, four separate offences, and the judgment in that case is not, therefore, conclusive of this case. It is not conclusive of this case solely on the ground that here, instead of having separate indictments for the separate and distinct offences, there were two indictments only. He pleaded to the one indictment “ Not guilty,” and that meant and must be construed as having the meaning of “ not guilty ”to all and to every one of the charges. So with the verdict and the plea of “Guilty” to the second indictment.

Can, then, each count and each plea to the indictment be treated as a separate occasion ? If it cannot, then it is a question of form overriding a matter of substance. I confess the matter is one of difficulty. If a wide meaning is given to the word “ occasion,” then I am of opinion that the case would come within the statute. Our Interpretation Act, as their Lordships of the Privy Council have informed us, declares that our statutes ought to “ receive suoh fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Aot and of such provision or enactment, according to its true intent, meaning, and

spirit,” This rule must be followed in criminal statutes, for every provision, “whether its immediate purport is to direct the doing of anything ... or to prevent or punish the doing of anything it deems contrary to the publio good,” is to be so construed: Paragraph ( i ) of section 6 of the Acts Interpretation Act, 1908. “Occasion” can mean opportunity, event, or something happening. It was so construed in even a wider sense in a case as to the power of trustees in dealing with a charity : See In re Palatine Estate Charity (39 Ch.D. 54). The trustees had power to employ all rents, &c., of a small parcel of land “ for and towards the reparations, ornaments, and other necessary occasions of the said parish church,” &c. It was held that the words “ necessary occasions ” included all those things that were necessary and proper to fulfil the objects of a church, and hence a new spire was such. This seems to me to have eliminated points of time and made “ occasions ” mean events or happenings. By our law, as well as by the law of England, each count may be deemed a separate indictment (see subsection 2 of section 397 of the Crimes Act, 1908). In Latham v. Reg. (5 B. & S. 635, at p. 642) Mr. Justice Blackburn said, “ Where an indictment consists of several counts they are to all intents and purposes several indictments, and the same as if separate juries were trying them.” If there had been separate indictments Rex v. Steele (29 N.Z. L.R. 1039) would have applied. If so, why must the Court not now treat the counts as indictments ? It has to construe a section in an Act that has declared a count in an indictment may mean a separate indictment, and if it is to construe the Act as a remedial statute and in the way in which the terms of the statute must be carried out I think that it may construe each count as if it were a separate indictment; and, as the reading of each count was an occasion, there is nothing I can see wrong logically or philologically in so construing the word “ occasions.” The most that can bo said is—and I do not desire to minimize the strength of the argument, which I appreciate—that in ordinary speech “occasions” means not contemporary or simultaneous happenings, but suggests some interval of time between one occasion and another. Looking, however, at the substance of what has happened, and at our Interpretation Act, and the object of section 29 of the Crimes Act, I am of opinion that the declaration made regarding the prisoner should stand. Denniston, J.: — To entitle the Court to deolare any person an habitual criminal he must have been previously convicted on at least four occasions of any of the offences mentioned in classes 1 and 2 referred to in section 29 of the Crimes Act, 1908. The prisoner had before his present conviction been convicted of more than four such offences. The question reserved is, Has he been convicted on at least four occasions ?

It was held by the Court of Appeal in Rex v. Steele (29 N.Z. L.R. 1039) that a prisoner pleading guilty on the same day and at the same time to five indictments for offences committed at different times was convicted on five separate occasions. That case is not identical with the present one, and there is nothing in the reasoning of any member of the Court which exactly applies hero. The question, therefore, is still open to the Court to decide.

The circumstances in the second indictment mentioned in the case stated are identical with those in Rex v. Steele (29 N.Z. L.R. 1039), except that in the present case the offences are alleged not in separate indictments, but in separate counts in one indictment. The prisoner pleaded guilty to them all. He must, I think, be taken to have pleaded guilty, and his plea to have been recorded generally. That is, I think, shown from the fact that he has pleaded guilty to four separate offences, whereas he could only have been guilty of two aotual offences, the first and second counts being alternative—stealing and receiving the same goods—offences which are incompatible as referring to one transaction, and the same being the case as to the third and fourth counts.

I think it very doubtful if that was the proper course. The oomraon law in England on the subject will be found in Arohbold’s Criminal Pleading (24th ed. 81). Much of the learning on the subject there shown is made unnecessary by the provision in our Crimes Act (section 37) that any number of counts for any crime whatever (except murder) may be charged in the same indictment, that where there are more counts than one in an indictment each count may be treated as a separate indictment, and that the Court may order the accused to be tried upon any one or more of such counts separately. It is stated in Archbold’s Criminal Pleading (24th ed. 85) that “ the proper course is to enter up the verdict and the judgment separately on eaoh count.” For this O’Connell v. Reg. (1 Cox C.C. 413) and Latham v. Reg. (5 B. & S. 635) are cited. In Halsbury’s Laws of England (Vol. ix, par. 665,

p. 343) it is stated, “If several counts are joined in one indictment a verdict should be taken separately on each count, because if there is a general verdiot and a general judgment on the whole indictment, and some of the counts should be decided to be bad, the whole judgment is vitiated ” —citing only O’Connell v. the correct oourse, I do not see that its not having been followed should interfere with the construction of the statute. If this course is followed, the only difference between this case and Rex v. Steele (29 N.Z. L.R. 1039) would be the fact that in the present case the offences are contained in one piece of parohment instead of four. I cannot see that this would make any substantial distinction between the two cases. In each case there would be, in my opinion, an independent happening, in the plea on each count, with necessarily an appreciable interval of time. Then, as to the first indictment mentioned in the case stated, that differs from the others in the fact that the plea to each of the five offences there charged was “Not guilty,” and there was a trial and a general verdict of “ Guilty.” There, again, I have some doubt whether such a verdict is the proper one, as there were really only four offences, the second and third counts relating to the same matter. The observations I have made as to the second indictment apply, in my opinion, to this. This also does not seem to me to differ substantially from Rex v. Steele (29 N.Z. L.R. 1039). It is right to say that no injustice has been done to the accused in either of these instances, as the sentence is of course based on the offences actually disclosed on the indictments. Before expressing any concluded opinions on these points I should wish to have the opportunity of looking more fully into the authorities. I do not think this necessary, as I have arrived at the same result by simpler considerations. The intention of the Act is, I think, clear. Two or four, as the case might be, previous convictions were to bring an accused within the category of persons liable to be sentenced to be declared habitual criminals. It is the fact of the convictions that is material—not the date of circumstances. The words of the section are: “Where such conviction” [that is, a conviction of any person on indictment] “ is in respect of an offence” of one of the classes mentioned, “ and such person has been previously convicted on at least two occasions” (or four, as the case might be) the liability has accrued. “Previously,” of course, relates only to the relation in time between all the convictions relied on as creating the liability. The only reference to the number of the convictions and their circumstances is in the words convicted on at least two occasions.” “ Oocasion ” is not a term of art; it must be read according to the subjectmatter and the context. Thus read “ convicted on at least four occasions ” appears to me to be only a somewhat roundabout way of saying “convicted at least four times.” I cannot think it possible that anything so ludicrous could be intended as to make the liability to a declaration as an habitual criminal depend on whether the criminal had been convicted of four offences in four indictments or of four crimes in four counts in one indictment. Nothing but the plainest necessity would, in my opinion, justify such a construction. I think the construction I am accepting is a construction the words are quite capable of bearing, and at the same time attains the object of the Act and of the provision “according to its true intent, meaning, and spirit.” In my opinion the facts stated in the case show that the sentence as an habitual criminal was justified. Edwards, J.: —

The provisions of sections 29 and 30 of the Crimes Act, 1908, are enacted with respect to matters the understanding of which requires no technical or special knowledge of any description. These provisions ought therefore, in my opinion , to be construed in the meaning in which they would be understood by any person of average intelligence and education —in a word, as they would be understood by the members of the Legislature which enacted them. Certainly no strained interpretation ought to be placed upon the words of an enaotment which involves the detention in prison of offenders for an unlimited period, so as to bring within its operation any offender to whom it does not clearly apply. Now, it appears to me to be plain that no person of average intelligence and education who was present in the Court and heard a prisoner tried and found guilty upon an indictment charging in four separate counts separate crimes would afterwards think that any one correctly stated what he had himself witnessed and heard who asserted that upon four occasions he had seen and heard the prisoner tried in the Supreme Court and convicted of crime. I agree, therefore, with Mr. Justice Chapman that the prisoner ought not to have been declared an habitual criminal, and that that part of his sentence should be quashed. It is said that there is no difference in law between four separate convictions upon four separate indictments and a conviction upon one indictment containing four separate counts charging distinct crimes, and that to hold that there

is a practical difference in the application of section 29 of the Grimes Act, 1908, is to allow form to prevail over substance.

I am not sure that this is in practice quite correct. A prisoner who is tried upon four separate indictments has the advantage of a trial by a separate jury in each case, and he may be lucky enough to escape conviction upon one of them. If so, his convictions at that sitting of the Court will not bring him within section 29. If he is tried under one indictment containing four counts in respect of the same offences, and is found guilty, the verdict of one jury will, if his trial is deemed to be a separate occasion in respect of each count of the indictment, bring'him within that section.

It does not appear to me that it would be illogical if the Legislature deliberately intended that before a prisoner could be declared an habitual criminal he should be found guilty by each of four separate juries, or that he should have pleaded guilty to each of four separate crimes charged in a separate indictment. Probably the question has never been carefully considered, but the language of the statute is consistent with that construction, and the prisoner is, in my opinion, entitled to the benefit of it.

It is to be regretted that the adoption of this construction will probably materially increase the cost of trying persons who are entitled to but little consideration. That circumstance, however, ought not to affect the construction placed by this Court upon the statute. If it is considered that an offender who has been convicted of the specified number of crimes, whether charged in one indictment or in several indictments, should be brought within section 29, a very simple amendment of the law will have that effect.

Cooper, J.:— The question for determination by the Court in this oase was left open in Rex v. Steele (29 N.Z. L.R. 1039) and Rex v. Ehrman (31 N.Z. L.R. 13G). In my opinion the Court ought, in the construction of paragraph ( b ) of subsection (1) of section 29 of the Crimes Act, 1908, to give the words used their ordinary sense and meaning. I think that the ordinary meaning of the words “ previously convicted on at least four occasions ” mean four separate and independent occasions, and that the circumstances set out in the case reserved by Mr. Justice Chapman only show previous convictions on two separate occasions. If a prisoner is arraigned generally upon an indictment charging him in two or more counts with two or more independent offences, and pleads a general plea of “ Guilty ” to the whole indictment, then in my opinion, although he is convicted on this plea of two or more independent offences, this conviction is on one “ occasion ” and not on two or more “ occasions.” There is, in fact, but one arraignment and but one plea. It is true that in law the plea is distributive and applies automatically to each count, but the “ occasion ” or incident, although it involves this consequence, is one only. I think that to say that what really takes place upon one “ occasion ” in point of time is, because of the distributive nature of the plea, to be theoretically two or more “ events ” is placing a strained meaning on the word “occasion,” and this we are not in my opinion justified in doing, especially in a case like this which involves penal consequences to the prisoner. Chapman, J. : I think that section 29 of the Crimes Aot, 1908, must be read as an ordinary educate d man would read it. Looking at it in this way we find that the prisoner, when sentenced on this occasion, had been previously convicted on two occasions. It is true that on one of these occasions he had been subjected to four and on the other to two distinct convictions based on as many distinct offences, but it would not accord with plain ordinary English to say that for this reason he had been previously convicted on six occasions. Sections 387, 388, and 389 enable us to determine the nature of a count in an indictment whether these sections are restatements of the common law or modifications of it, but they do not help us to interpret the words under consideration. A Court must always be on its guard against the temptation to overlook the exact language used, and try to shape an enactment into the expression of a logical system. When no term of art has been employed it is safer to endeavour to give effect to the words used in their popular sense. I think that in doing so here we must hold that the prisoner was not liable to be declared an habitual criminal. A fresh sentence need not be passed. The Court has jurisdiction under section 445, subsection 1, paragraph (/), to quash so much of the sentence as declares the prisoner to be an habitual criminal, and this will suffice. Declaration quashed. [Solicitors for the Crown —Crown Law Office (Wellington).] [Solicitors for the prisoner—O’Leary & Kelly (Wellington).]