R v Drury
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 01 November 1971 |
| Judgment citation (vLex) | [1971] EWCA Crim J1101-9 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 1796/B/71 |
[1971] EWCA Crim J1101-9
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Edmund Davies
Lord Justice Stephenson
and
Mr. Justice Waller
No. 1796/B/71
MR. S.M. SPENCER appeared on behalf of the Appellant.
MR. HITCHIN appeared on behalf of the Crown.
This is a most puzzling case. It gives rise once more to the question of how the inconsistent verdicts of Juries are to be regarded in this Court. We reject as too bold the proposition that the simple fact that a Jury has returned inconsistent verdicts, acquitting on some count or counts and convicting on others, means that in every such case this Court is obliged exnecessitate to quash the convictions. Each such case must depend upon its own facts. There are cases which in our view can arise when, notwithstanding a clear inconsistency, it would be proper for this Court to say that, notwithstanding the inconsistency, the conviction or convictions must stand. It all depends upon the facts of the case. Those of the present case are indeed puzzling, and we are totally at a loss to understand how the Jury could have arrived at what we must be permitted to describe as their wholly incomprehensible verdicts.
The appeal of Ian Drury is from his convictions at the Teesside Quarter Sessions last March by a majority of 11 to 1 on two counts of obtaining goods by deception, contrary to Section 15 of the Theft Act of 1968, in respect of which he received concurrent sentences of 12 months' imprisonment suspended for two years. He was by that same Jury acquitted of the first count in which he was charged that on 18th December of last year he stole 28 boxes of oranges to the value of £37 belonging to Wilson & Leatherlands Limited. The particulars of the further counts upon which he was convicted related to his sale to two different people of a quantity of oranges, being part of the same consignment of 28 boxes of oranges referred to in the first count. Mr. Spencer, who has appeared for the Appellant today, has submitted to this Court that the acquittal on the count of theft and the convictions on the obtaining counts are so impossibly irreconcileable and so glaringly inconsistent that their incomprehensibility must lead to quashing the convictions on the two obtaining counts. When I add that Mr. Spencer has frankly conceded that, had this indictment contained only the two obtaining counts there was an abundance of evidence to justify the Jury's verdict of guilty, in one sense the boldness of his submissions, that (notwithstanding the plenitude of evidence to support those convictions) they must be quashed, becomes manifest.
Let me relate the short facts. The Appellant was employed as a lorry driver by the A.1 Transport Company and on 18th December of last year he had a load of 1600 boxes of oranges for delivery to two firms, Messrs. Wilson & Leatherlands being the first, and Messrs. Hall and Sons the second. They were wholesale fruiterers in Middlesbrough, and each of those two consignees was due to receive 800 boxes. The practice which had been arrived at between those two firms was this: the first delivery would usually be made to Wilson & leatherlands and there would be no exact check of the number of boxes unloaded to them. Using their best judgment, they and a driver would see to it that half the load would be deposited with them, that the driver would then proceed to Hall and Sons and complete his delivery there, that it would be during the latter delivery that the number of boxes in the consignment was counted, and then if it turned out, for example, that Hall and Sons were getting more than half the total consignment, the surplus would be conveyed back to the first consignee, Wilson & Leatherlands. Such was the general practice.
On this particular occasion, when Halls had taken delivery of 800 boxes of oranges it was found that there were 28 boxes more left on the lorry, that is to say, that the first consignees were 28 boxes short, and accordingly the Appellant was instructed to take them back to Wilson & Leatherlands. It was then about half past one, and Drury was due for his lunch break. He drove the lorry direct back to his employers' depot without passing Wilsons, although their yard was only a couple of hundred yards away. At the depot Drury was seen by his work-mates to put a tarpaulin over the boxes on the lorry and rope them down. That took many more minutes than it would have taken for him to have effected the return of the surplus 28 boxes to Wilson & Leatherlands. Some 10 minutes later, one of the drivers saw Drury drive his lorry away. Nobody saw Craven (the transport manager), an important witness for the Crown, go anywhere near the lorry while it was at the depot. Craven himself denied approaching the lorry or having any conversation with Drury in relation to the consignment. According to him, on the contrary, this Appellant handed him the relevant signed delivery notes about 2 o'clock that day, and he assumed that the deliveries had been properly completed. He then proceeded to give Drury another job to perform.
At about half past 2 that afternoon, the Appellant called with his lorry on a Mr. Sisson, who owned a fruit shop in Billingham, and offered him some oranges. He said he had just delivered a load of 800 boxes and that his boss had told him that the number left behind were surplus and that he had to sell them in order to enable him to get his lorry clear for the next load. As a result of those representations which were, according to the Crown, absolutely false, Mr. Sisson bought 22 boxes worth £29 wholesale and got them for a mere £11.
About three o'clock that afternoon the Appellant went to a Mr. McNay, a greengrocer at Thornaby. He told him that he had some surplus oranges and what his employer's instructions were, and in consequence Mr. McNay bought four boxes of the oranges for £2.
About six o'clock that afternoon, back at the depot, the Appellant told other employees who were called as witnesses that he had a single box of oranges left over from a load on his lorry and he offered them some.
By early the following morning, the first consignees, Wilsons, were aware of their loss, and a member of that firm went to the depot to look for Drury, but he was not there. In consequence, this Appellant called on Wilsons in the forenoon of that day and in answer to questions about his failure to deliver up the 28 boxes which were really the entitlement of Wilsons, and they telling him that they knew he had taken them away from Halls, he claimed that he had been instructed by his employers to return direct to their depot, that he had then been sent out with another load, leaving the boxes of oranges on his lorry, after sheeting and securing them. He added that after that he just did not know what had happened to the oranges. Later that day, after Drury had returned to his transport depot, a driver named Pitchers arranged to drive Drury home, and before they set off the evidence was from Pitchers that Drury put a box of oranges into his lorry and when they arrived at his home the Appellant made a present to Pitchers of 30 oranges from the box.
The police were called in on the following day and the Appellant denied any knowledge of the missing boxes beyond having sheeted them when he returned to the yard and leaving them there. He declined to allow the police to search his house without a warrant. He was again seen by the police the following day when he repeated his story. He said he had tied the boxes down with a tarpaulin, but now said that he had told the depot manager, Mr. Craven, what he had left and that he was told by Craven to leave them. Afterwards he had taken another lorry out on a journey and never saw the...
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