R v Durante
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 20 June 1972 |
| Judgment citation (vLex) | [1972] EWCA Crim J0620-3 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 216/B/72 |
| Date | 20 June 1972 |
[1972] EWCA Crim J0620-3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Edmund Davies
Lord Justice Stephenson
and
Mr. Justice Browne
No. 216/B/72
MR. O. SHAW appeared on behalf of the Appellant.
MISS A. MALLALIEU appeared on behalf of the Crown.
This appeal will be allowed. It is one brought by Reginald William Durante who, on the 21st December of last year, was convicted at the Inner London Quarter Sessions of handling a stolen cheque. That was the first count in the indictment. He was acquitted of the second count of endeavouring to obtain money on a forged instrument. That was the stolen cheque. The Jury were discharged from giving a verdict on a third count of attempting to obtain money by deception.
He was sentenced to nine months' imprisonment on the first count and an earlier sentence of three months for an offence of making a false representation to obtain benefit which had originally been suspended was brought into effect consecutively. There was also a breach of a Probation Order in respect of which he was sentenced to three months' imprisonment, so in all the Appellant was ordered to serve fifteen months' imprisonment.
He appeals against his conviction on the charge of handling a stolen cheque by leave of the single Judge. He was also granted bail, but that was ineffective since his proposed sureties declined to be bound.
One has to say in order to get the true picture that one is dealing here with an Appellant who has for years been an alcoholic. We mention that unfortunate fact because his drinking habits are directly germane to the events we have to relate.
A Mr. Fowler, who was employed by Printers Express Delivery Service Limited, had two cheques stolen from a company chequebook belonging to his employers.
Part of Mr. Shaw's interesting submissions below was, as we gathered, that a blank cheque form is not a "cheque" for the purpose of the first count, it not being a cheque within the Bills of Exchange Act, 1882. It is an interesting and, speaking entirely for myself, a startling submission and one upon which my colleagues and I have not conferred because it has been unnecessary so to do. Decision upon it must remain in abeyance until the next time counsel valiantly advances it, when it can receive due consideration - that is if the point be ever taken again.
Mr. Bunn is the assistant manager of a public house in the City. He gave evidence that on the 28th August of last year at about 2 o'clock Durante came into his premises with another man and asked Mr. Bunn to cash a cheque. There is no doubt that this was one of the two cheque forms which had been stolen from the chequebook of Mr. Fowler's employers. It was made out in the sum of £27.65 in very bad handwriting and in favour of the Appellant. Mr. Bunn saw instantly that it was not signed by the drawer. This Appellant insisted that it was a cheque for his week's wages. Mr. Bunn very kindly told him, in effect, "Well, you will have to get it signed".
So this Appellant goes out of the public house and he comes back about fifteen or twenty minutes later and by then the name "Stevens" had been written in. But it was not in that place where when we have to sign cheques we like to sign them or are required to sign them. This name "Stevens" was not signed under the name "Printers Express Delivery Service Ltd.", which was printed on the cheque. Instead, it was written above the place where the amount of the cheque appeared.
Mr. Bunn not surprisingly in those circumstances promptly telephoned the Police, who arrived and arrested this Appellant. According to them, he admitted that it was his cheque. When it was put to him that it had obviously been stolen he said, "Yes, I had a drink in King's Cross today. I bought the cheque for £2 from a man in a pub. I told the barman it was my wages". When he was told he was being arrested for uttering a stolen and forged cheque he replied "I'm guilty".
The accused gave evidence as to how he acquired the cheque. This account differed from that which he had given to the Police. He said that he had been introduced by a man named Jimmy Finlay (whom he knew) in a public house in King's Gross to another man whose name it turned out was Ferguson. Then Ferguson asked him if he knew anything about cheques, and this Appellant replied "Not on your life". Ferguson then had a conversation about cheques with a third man who said he had two or three of them. Then this Appellant left Ferguson and the other man in order to go to the lavatory and on his return Finlay warned him not to mix with Ferguson and the other man. But he returned to Ferguson and they went off to another public house by taxi.
According to the Appellant's evidence, in the taxi, although he wanted to sleep off the great amount of drink which he had been taking since the early hours of that day, beginning in Covent Garden, Ferguson persisted in asking if he could do anything about a cheque. Durante said he was not interested "in any damn cheque". Nevertheless he accepted from Ferguson a blank cheque.
He did not challenge the evidence of Mr. Bunn or the Police Officers, save that he insisted that when he first presented the cheque to Mr. Bunn it bore the name "Stevens". He agreed that he was the person who had made out the entire cheque, but he denied any intent to defraud. Fraud was an essential element of both counts, but he said he was too drunk at the material time to be able to form the necessary criminal intent which it required.
The issue of drunkenness was accordingly at the heart of this case. What was the evidence about it? We have already related the accused's own testimony about the vast number of drinks he had taken and the extent to which he had mixed his drinks. Mr. Bunn said that the appearance...
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