R v Charles
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BRIDGE,LORD JUSTICE LAWTON |
| Judgment Date | 29 June 1976 |
| Neutral Citation | [1975] EWCA Crim J1118-9 |
| Judgment citation (vLex) | [1976] EWCA Crim J0629-12 |
| Date | 29 June 1976 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Nos. 5290/C/75, 5352/A/75 and 5353/A/75 |
[1975] EWCA Crim J1118-9
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Bridge
Mr. Justice Bristow
and
Mr. Justice Boreham
MR. E. TABACHNIK appeared for the Appellant.
MR. M. WORSLEY and MR. C. HART appeared for the Crown.
On the 6th December, 1974, at the Inner London Crown Court, after a retrial lasting six days the Appellant, Derek Michael Charles, was convicted of one offence of obtaining property by deception and two offences of obtaining a pecuniary advantage by deception. Sentence was deferred until the 6th June of this year when a fine of £150 was imposed. The Appellant appeals against his convictions by leave of the single Judge.
The prosecution arose was as follows. On the 31st October, the Appellant opened a current bank account at the Peckham Rye branch of the National Westminster Bank. On the 23rd November, he wont to see the Manager, Mr. Mason, asked for, and was granted, authority to overdraw on his account for a period of one month up to a limit of £100. He went to see Mr. Mason again shortly before Christmas and asked that the overdraft up to a limit of £100 should be extended for a further month. That request was granted. He further indicated to Mr. Mason that he was having certain difficulties, having regard to where his business activities took him, in cashing cheques when he wished to do so. It was at Mr. Mason's suggestion that he was issued with a cheque card. The cheque card was in what is now, no doubt, a common and very familiar form but since important questions arise in the case as to the implications of a transaction in which a cheque is presented, backed by a cheque card, it is appropriate to set out in full the terms of the card which was issued to the Appellant in this case. It bore on its front the legend "National Westminster Bank £30 for conditions see over." On the back is written the following: "The issuing Banks undertake that any cheque not exceeding £30 will be honoured subject to the following conditions: a. The cheque must be signed in the presence of the payee. b. The signature on the cheque must correspond with the specimen signature on this card. c. The cheque must be drawn on a bank cheque form bearing the code number shown on this card." I interpose to observe that the code number on the card was of course the code number of the Appellant's account with the bank. "d. The cheque must be drawn before the expiry date of this card. e. The card number must be written on the reverse of the cheque by the payee."
Between the 28th and the 31st December the Appellant issued a total of eighteen cheques backed by this cheque card, each for £30, amounting, therefore, in total to £540. The issue of those cheques for that aggregate amount was going to have the consequence, in the events which happened and which, as the jury must be taken to have found, must have been foreseeable, by the Appellant, of putting his account with the bank into debit to an amount substantially in excess of the £100 authorised overdraft. Some of the eighteen cheques issued in the period before the end of the year had, we understand, been presented at banks for encashment. The bulk of them, however, had been paid for the purchase of gambling chips to a gambling club resorted to by the Appellant known as the Golden Nugget Club.
On the 2nd January the first four of those eighteen cheques including, it would seem, at least two which had been cashed on the same day at different banks, reached the Peckham Rye branch of the National Westminster Bank. They immediately caused Mr. Mason concern, partly because of the two cheques that had been cashed on the same clay at different banks and partly because the immediate state of the Appellant's account was then such that the four cheques for £30 each would, themselves, put the account in debit to an amount of £120.
There had, however, been paid into another branch of another bank on that same day a cheque for £500 to the Appellant's credit of which Mr. Mason was aware; but that cheque had not at that time been cleared and therefore had not been credited to the Appellant's account.
It was in those circumstances that Mr. Mason got in touch with the Appellant and asked him to call at the bank, which the Appellant did later on the 2nd January. There was a discussion between the Appellant and Mr. Mason to which further reference will have to be made hereafter. At the end of the interview the Appellant asked for a new cheque book and was supplied with one containing twenty-five cheques. That evening the Appellant went to the Golden Nugget Club again. Perhaps it is not an unreasonable inference that he was hoping to redeem his fortunes at the gaming tables but, as so often happens in such a situation, instead of saving the day he plunged still further into disaster and in the course of the night's gambling he used all twenty-five cheques from his new cheque book; paying them out to the manager of the Golden Nugget Club, £30 at a time, each cheque backed by the cheque card and duly completed in accordance with the conditions on the cheque card. The twenty-five cheques amounted, in the aggregate, to £750 and on their presentation to the Appellant's bank, put his account into debit far beyond the limit of his authorised overdraft.
The three counts, in an indictment originally containing ton counts, of which the Appellant was eventually convicted, wore as follows: Count throe charged him with dishonestly obtaining the cheque book which had been issued to him following his interview with Mr. Mason, on the 2nd January, by deception, namely by falsely representing the true state of his bank account. The ninth and tenth counts of the indictment related to two of the cheques he had issued on the night of the 2nd/3rd January, the last one dated the 2nd and the first one dated the 3rd, each for £30. The charge in each count was dishonestly obtaining a pecuniary advantage for himself namely increased borrowing by way of overdraft from the National Westminster Bank by deception namely by deliberately or recklessly representing that he was entitled and authorised to use his cheque card when issuing the cheque in question.
It is important to observe at the outset that since these counts were laid under sections 15 and 16 of the Theft Act, 1968, it was an essential ingredient in each of the offences charged which the prosecution had to establish, that the Appellant had, by words or conduct, been guilty of a deception and that in each ease that deception had operated on the mind of the party deceived to induce him to do that which enabled the Appellant to obtain in the case of count three goods – the cheque book – and in the case of counts nine and ten a pecuniary advantage – the illegitimate increase of his overdraft with the bank.
The central point which arises in the appeal, albeit it arises in a different form in relation to count three on the one hand and counts nine and ten on the other, is whether on the evidence led by the Crown there was prima facie evidence proper to be left to the jury of the relevant deception alleged to have been practised by the Appellant and that that deception operated to induce the party deceived to act as he did.
It is necessary to go back now to examine in more detail the substance of the interview between Mr. Mason and the Appellant on the afternoon of the 2nd January which had the result, as one of its consequences, of the issue to the Appellant of the new cheque book he requested.
First Mr. Mason pointed cut to the Appellant that of the four cheques, which by that time had arrived back at the Peckham Rye branch, more than one had been cashed at a bank on the same day and, although this had not been explained to the Appellant by Mr. Mason when the cheque card had originally been issued to him before Christmas, Mr. Mason now told the Appellant that it was one of the bank's rules, which customers holding cheque cards should observe, that they were not available for cashing more than one cheque for £30 at any bank or banks on any one day. These transactions, it should be pointed out, occurred before it became the common practice of the banks to stamp on the back of the drawer's cheque book a record of his cashing a cheque backed by his cheque card on any day.
Mr. Mason further said to the Appellant that apart from cashing cheques at banks the cheque card should not be used to issue any cheques for more than £30 in relation to any one transaction. He further pointed out to the Appellant that as the £500 cheque paid in that day had not yet been cleared, the four cheques received would create an overdraft in the Appellant's account in excess of the permitted limit of £100. The Appellant's reply to this was first that he had drawn the four cheques in question innocently, not knowing the bank's restriction on the number of cheques to be drawn on the strength of the card on any single day, secondly he said that he was surprised that the £500 cheque had not been paid in earlier and he said further that he had paid the four cheques on two days, the 28th and 29th December, because he had been moving house and had extra expenses.
There was undoubtedly a general discussion between Mr. Mason and the Appellant regarding the state of the Appellant's account. At the end of the interview, Mr. Mason said, he was quite happy. He also said that had he known that in addition to the four cheques, which had reached the Peckham Rye branch on the 2nd January, the Appellant, between the 28th and the 31st December, had issued another fourteen cheques each for £30 he certainly would not have issued him with a further cheque book; but...
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