R v Griffiths
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JAMES |
| Judgment Date | 21 June 1974 |
| Judgment citation (vLex) | [1974] EWCA Crim J0621-4 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 4629/B/73 |
[1974] EWCA Crim J0621-4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice James
Lord Justice Ormrod
and
Mr. Justice Waller
No. 4629/B/73
MR. D. KEANE appeared as Counsel for the Appellant.
MR. J. JENKINS appeared as Counsel for the Crown.
On 3rd October, 1973 at the Crown Court at Gloucester Leslie George Griffiths, the Appellant, was convicted of an offence of handling a pair of stolen candlesticks. On a second indictment he was convicted of an offence of burglary committed at Cheltenham on 28th April, 1973. He was sentenced to consecutive terms of two years' imprisonment.
He appeals against the conviction of handling by way of certificate granted by the Recorder under Section 1(1) of the Criminal Appeal Act 1968. He also applies for leave to appeal against the sentences.
The candlesticks were stolen from a church in Cheltenham on the 31st May, 1973. The Appellant, who lived in Cheltenham, was arrested on 4th June in Cirencester. He had tried to sell the candlesticks that afternoon to two dealers to whom he admittedly told lies as to how he came into possession of the candlesticks. He first told the police that he had bought them that afternoon from a dealer. He later said he had purchased them from a man he could not describe in the High Street in Cheltenham that morning. When asked if he had asked the man where they came from he replied, "You don't ask questions like that do you". When it was suggested that he must have realised they were stolen he replied, "Yes, I suppose so". In a written statement he repeated the story of buying the candlesticks from the man in the High Street and said, "I did not ask him where he got them, you don't do things like that do you." The defence was the same as the account in his written statement. He denied making answer to the police in terms that he knew the candlesticks were stolen. He said in evidence that he might have had suspicions but the suspicions were not related to any criminal offence.
There was no evidence tending to show that the Appellant was the thief. It was not suggested to or by any witness, including the Appellant, that the Appellant was the thief or that the candlesticks were in his possession, to use the words of Section 22(1) of the Theft Act, "in the course of the stealing". But at the close of the evidence, in the absence of the jury, Mr. Keane - who appeared for the Appellant at the trial and who has conducted the appeal in this Court - submitted to the Recorder that the burden lay on the Crown to prove the positive factor that the candlesticks were in the Appellant's possession otherwise than in the course of the stealing, and that on the evidence the Crown had not established that the Appellant was not the thief. Mr. Keane indicated that he proposed to address the jury on those lines and the Recorder, in rejecting the submission, said he proposed to direct the jury that there was no evidence that the Appellant was the thief.
Mr. Keane also raised at this stage of the trial a question as to what the Crown must establish to prove an offence under Section 22(1) of the Theft Act 1968 in relation to "knowing or believing" the goods to be stolen goods. He invited the Recorder's attention to the case of Atwal v. Massey, (1972) 56 Criminal Appeal Reports, 6. It is significant to observe that the Recorder in discussion with Counsel expressed the view that "The jury have to get inside the mind and they can decide, taking into account the circumstances, whether the man did know or believe".
In this appeal Mr. Keane takes the same two points, the first alone being the subject of the Recorder's certificate.
Upon the first point the argument is that, in the state of the evidence, the Recorder should have directed the jury that they should first decide whether they believed or rejected the Appellant's version as to the receipt of the goods, and, if they rejected his version as to receipt, they should convict only if they were sure that the Crown had established that his receipt was otherwise than in the course of the stealing. Mr. Keane relied on the case of Stapylton v. Q'Callaghan, (1973) 2 All England Reports, 782. In that case the Magistrate dismissed both informations, one alleging dishonestly receiving a stolen driving licence the other alleging theft of the same licence, because he found the evidence inconclusive as to how the defendant came into possession of the licence and the prosecution had failed to satisfy him which offence had been committed. The facts found by the Magistrate were that the defendant dishonestly possessed himself of the licence, which was a stolen licence, and intended to keep that licence. On the appeal by case stated to the Divisional Court the Lord Chief Justice, Lord Widgery, pointed out, at page 784, that on those findings the defendant was one who had appropriated property belonging to another within the definition of 'appropriated' in Section 3(1) of the Theft Act 1968 and therefore the offence of theft was committed. The judgment continued: "Of course, if one looks on to S.22, which is the section charging handling, one finds that activities such as described here if committed otherwise than in the course of stealing may be caught by S.22, and understandably attract a more severe penalty, but if the facts justify the conclusion that the offence of stealing was committed, the right course in my judgment is to convict of stealing and not to go on to consider the possible additional hazard of convicting the accused of handling with the added penalty which might arise."
Mr. Keane also referred to Seymour (1954) 38 Criminal Appeal Reports, 68, but we derive no assistance in the present matter from that authority which is concerned with the circumstances in which an indictment should contain counts for theft and receiving (under the old law) and the procedure appropriate to the return of the jury's verdict where that is done.
The Recorder directed the jury in terms which made no reference to "otherwise than in the course of the stealing" in relation to the ingredients of the offence charged. He did not give the direction which Mr. Keane has argued should have been given. In the judgment of this Court the Recorder was absolutely right to deal with this aspect of the case as he did. There was no issue as to whether the receipt of the candlesticks was otherwise than in the course of the stealing. In a case in which there is, on the evidence, an issue as to whether the receipt of stolen goods was in the course of the stealing or otherwise a direction would be necessary. To give such a direction in this case, in which there was no issue to which Counsel's submission could relate, would have been both confusing and wrong.
The second point taken has caused us more difficulty. Mr. Keane argues that the Recorder misdirected the jury in that he told them that they could convict if they were satisfied that the Appellant was in one of three states of mind as to the stolen nature of the candlesticks, (i) that he knew, or (ii) that he believed, or (iii) that he suspected and deliberately chose not to ask any...
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