LAW REPORT.

New Zealand Police Gazette, Volume XL, Issue 14, 7 April 1915, Page 254

LAW REPORT.

(“ Times Law Reports,” Vol. xxxi, page 159.) [Court of Criminal Appeal. (Lord Reading, C.J., Ridley and Bankes, JJ.) — lßth January, 1915.] Rex v. Berger. Criminal Law —Receiving Stolen Goods—Possession — Test. To make a person liable for receiving stolen goods, well knowing them to have been stolen, it must be shown that the goods were under his control. This was an appeal by Edward Berger against a conviction at the Central Criminal Court, where he was sentenced to three years’ penal servitude on a charge of receiving stolen property. The appellant was also recommended for expulsion. Mr. Raglan Somerset appeared for the appellant; and Mr. A. S. Comyns Carr for the Crown. The facts and arguments are sufficiently stated in the judgment. The Lord Chief Justice, in delivering the judgment of the Court, said that the appellant was convicted with two other men, named Hegdis and Natterson, and each of them was sentenced to three years’ penal servitude, and recommended for expulsion. Hegdis had applied for leave to appeal against his sentence, and the application had been refused. No question now arose with regard to Natterson, and the only question the Court had to deal with was whether there was sufficient evidence and a sufficient direction to the jury for the conviction against Berger to stand. The case against the appellant was undoubtedly extremely thin. It was a finely balanced point to say whether there was sufficient evidence against him of having received the goods. The charge against him was not of warehouse-breaking, but of receiving the goods well knowing them to have been stolen, and before he could be convicted there would have to be proof that the goods were in his possession. The two questions were : (1) Whether the goods ever were in his possession ; and (2) whether the direotion of the learned Judge to the jury was sufficient to apply the real test to the facts. With regard to the first question, two men, Hegdis and Natterson, were seen on a van which contained furs and other goods worth £750, which had been stolen from a warehouse the night before. They were followed, and the goods were brought to the appellant’s shop. The saoks were unloaded from the van, and when several had been unloaded the police entered the shop. It might be, as the learned Judge pointed out, that if the police had waited a little longer they might have had conclusive evidence against Berger, but they did not wait, and, having entered, they put questions to the appellant. His answer was that he was the occupier of the plaoe, and that he had let a room to Natterson on the day before. His explanation, therefore, was that Hegdis and Natterson were bringing the goods to put in the room. It was a difficult point to say whether that amounted to possession or not, more especially when the true test was considered. The great difficulty which the Court had had to surmount was what was the true test. There was a division of opinion in the case of Reg. v. Wiley (20 LJ., M.C. 4), a case which was argued at first before several Judges, and then adjourned for further argument before more Judges, the result being that the opinion of the majority was that the conviction was wrong. The principle was best laid down in the words of Mr. Justice Patteson, where he said on page 9 “ I do not think it necessary that in order to constitute a man a receiver it is necessary that he should touch the goods, or that under certain circumstances a party having a joint possession with the thieves may not be convioted as a receiver ; but, I think, to make a person liable as a receiver the goods must be under his control.” The Court thought that was a correct statement of the law. The Court were of opinion that in this case there was not a sufficient direction to the jury as to the test in law with regard to possession. The conviction must be quashed. [Solicitors—The Registrar of the Court of Criminal Appeal ; the Director of Publio Prosecutions.]

(“ Times Law Reports,” Vol. xxxi, page 173.) [Court of Criminal Appeal—(Darling, Lush, and Atkin, JJ.) —22nd December, 1914.] Rex v. Norman. Criminal Law False Pretences Several Transactions — Obtaining Chattel—Obtaining Credit—One IndictmentDifferent Counts—Election by Prosecution. Where a prisoner is charged on an indictment whioh refers to more than one transaction and contains a count for obtaining a chattel by false pretenoes and another

count for obtaining credit by false pretences, the prosecution should be called upon to proceed upon one count at a time. This was an appeal from conviction and sentence at the Surrey Sessions held at Kingston-on-Thames on 23rd and 24th October, 1914. Mr. H. W. Rowsell appeared for the appellant; Mr. G. C. Whiteley for the Crown. The judgment of the Court was delivered by Lush, J.: — In this case the appellant was convicted of obtaining a mare by false pretences, and of obtaining credit from two persons by false pretences, and was sentenced to five years’ penal servitude. The only case in which he was charged with obtaining a chattel by false pretences was that in which he obtained the mare. The other two charges were confined to obtaining credit by false pretences. There were other counts also, but they were for obtaining credit by fraud other than false pretences, the Debtors Act, 1869, making it an offence to obtain credit by false pretences or by any other fraud. There was evidence against the appellant with regard to the transaction by which he obtained the mare, and it was very necessary that the jury should be directed with regard to the two ways in which the transaction might be viewed. They should have been directed as to what constituted obtaining a chattel by false pretences and as to what constituted obtaining credit by false pretences. Unfortunately there is not a word in the summing up directed to that view of the case. No direction at all was given to the jury as to the difference between the two offences or as to any particular evidence pointing to one offence or to the other. We do not say that there was no evidence upon which the appellant might have been convicted of obtaining the mare by false pretences, but there was, as I have said, no direction whatever as to what these two offences were or as to what the prosecution had to prove according to whether they charged the appellant with the one or the other. It was a matter of very great importance that the two offences should be kept distinct, because different evidence was admissible in the two cases. Upon that ground we are of opinion that we ought to treat the verdict as a verdict on the lesser charge—namely, that of obtaining credit by false pretences—and to substitute for the sentence of five years’ penal servitude that of twelve months’ hard labour, which is the maximum sentence for that offence. We desire to add this: In cases of this kind, where there are several counts and several transactions, in order that the counts charging the prisoner with obtaining chattels by false pretences and the counts charging him with obtaining credit by false pretences may be dealt with on a proper direction, we think the right course to follow is to try the prisoner upon one count or the other, and not upon all at the same time. If he is tried upon them all at once very serious difficulties may arise, inasmuch as evidence which is admissible on the charge of obtaining credit by false pretences may not be admissible on the charge of obtaining chattels by false pretences, and when all the evidence on both charges is before the jury it is very difficult, if not impossible, for them to separate the evidence when they come to consider their verdict. It is therefore highly im-

portant that the prosecution should be called upon to proceed on one count at a time, and that the prisoner should not be tried on all at the same time. It is, of course, open to the proseoution, if they fail on any one oount, to proceed upon those remaining. [Solicitors—The Director of Public Prosecutions; the Registrar of the Court of Criminal Appeal.]

(“Times Law Reports,” Vol. xxxi, page 177.) Court op Criminal Appeal (Lord Reading, G.J., Ridley and Shearman, JJ.) — 25th January, 1915.] Rex v. Golathan. Criminal Law — Plea—Ambiguity—Treatment as Plea of Guilty—Conviction quashed—Order for Trial. An ambiguous plea must be taken as a plea of Not Guilty, and if such a plea has been taken as a plea of Guilty and the prisoner has been convicted and sentenced the Court of Criminal Appeal can, on quashing the conviction and sentence, order the case to be tried, inasmuch as in the above circumstances the prisoner has not been tried at all. The appellant, who pleaded Guilty at the Brecon County Sessions to a charge of entering a dwellinghouse by night with intent to steal, and who was sentenced to seven years’ penal servitude, appealed against both conviction and sentence. The facts appear from the judgment of the Court. Mr. Roland Oliver appeared for the Crown, and the appellant was not represented. The Lord Chief Justice said that the appellant had been convioted, on his own plea of Guilty, of unlawfully entering a 'dwellinghouse with intent to steal. It appeared that at the most he had intended to admit that he had entered the premises unlawfully, but had had no intent to steal. That was taken as a plea of Guilty, but it was not a plea of Guilty at all. No one ought to be convicted on an ambiguous plea; if a plea had any ambiguity about it it must be taken to be one of Not Guilty. The conviction and sentence here could not stand, and the result was that the appellant had never really been tried at all. The Court could not remit a case for retrial, but where there had not been a trial they could order a case to be tried (Rex v. William Baker; 28 The Times L.R, 363; 7 C.A.R. 217). Whether a prisoner had pleaded guilty by mistake was a question which the Court would decide on taking all the facts and circumstances into consideration (Rex. v. Rhodes 11 C.A.R. 33). As to the present case, they had power to order the appellant to be kept in custody until trial, but that was a matter for their discretion, and they would not make such an order. The presecution could go on if they thought right, but the Court, after seeing the depositions, considered that it was doubtful whether on the facts there was any evidence on which the appellant could be convicted of the offence charged.