R v King (David)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL |
| Judgment Date | 28 November 1986 |
| Judgment citation (vLex) | [1986] EWCA Crim J1128-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Nos. 1723/F/86: 1724/F/86 |
| Date | 28 November 1986 |
[1986] EWCA Crim J1128-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Neill
Mr. Justice Waterhouse
and
Mr. Justice Saville
Nos. 1723/F/86: 1724/F/86
MR. COCKBURN appeared as Counsel on behalf of the Appellants.
MR. K. CUTLER appeared as Counsel on behalf of the Crown.
On 19th February, 1986 in the Crown Court at Southampton the appellants, David King and James Stockwell, were convicted of attempting to obtain property by deception. They were each fined £100, with 30 days imprisonment in default of payment. They now appeal against conviction by leave of the single judge.
The case for the prosecution at the trial can be stated quite shortly. On 5th March, 1985 the appellants went to the house of Mrs. Mitchell, in New Milton. Mrs. Mitchell, who had lived in the house all her life, was a widow of 68 years of age. The appellants told her that they were from Streets, a firm of tree surgeons. She knew of the firm, and in answer to her question one of the appellants claimed to be Mr. Street. They told her that a sycamore tree in her garden was likely to cause damage. They purported to carry out a test, with a plastic strip placed against the tree, and one of the appellants then said that the tree was dangerous.
They told her that the roots of the tree were growing into the gas main and could cause thousands of pounds in damage. They told her that it would cost £150 to fell the tree, which Mrs. Mitchell agreed to pay. They then looked at other trees and told her that another sycamore was dangerous as well as one of her conifers. In addition they told her that the roots of her bay tree were causing damage to the foundations of the house. Mrs. Mitchell asked the appellants about the cost of doing all the work, and they told her that to remove the four trees including the bay tree would cost about £500. When Mrs. Mitchell told them that she was going to telephone her brother, one of the appellants informed her that they would do the work for £470 if paid in cash. Mrs. Mitchell then said that she would have to go and get the money from the bank. In fact, she decided to draw some money from her two building society accounts. From one account she withdrew £100, and she was in the process of withdrawing £200 from her account with a second building society, intending at that stage to go to her bank to draw the balance, when the cashier at the second building society noticed that she seemed very distressed.
Following a conversation between Mrs. Mitchell and the cashier, the police were informed. Police officers then went to Mrs. Mitchell's house and found the appellants there. The appellants were arrested, and on 17th February 1986 they appeared at the Crown Court at Southampton on an indictment charging them with attempting to obtain property by deception, contrary to s.1(1) of the Criminal Attempts Act 1981.
At the outset of the trial counsel for the appellants moved to quash the indictment on the ground that the conduct alleged did not constitute a criminal offence. As the arguments advanced in support of the motion to quash the indictment were later repeated in this Court it is unnecessary for us to deal with the motion in detail. It is sufficient to say: (a) That after hearing argument the judge ruled that the count appeared to him to be a good one and that he had no power to quash it. (b) That at the conclusion of the evidence on 18th February counsel for the appellants submitted that there was no case to answer. On that occasion some further argument on the same lines as on the previous day took place. At the end of the argument the judge ruled that he proposed to leave the case to the jury. At the same time, however, he allowed an unopposed amendment to the indictment to add the word "then" in the Particulars of Offence. We shall have to set out the precise terms of the Particulars of Offence (as amended) a little later in this judgment.
It may also be observed that, as the argument on the motion to quash required reference to be made to textbooks and other authorities, it was necessary to adjourn the case for a time so that research could be carried out in the local chambers and in the public library in Southampton. On Wednesday, 19th February the judge summed the case up to the jury. After a retirement of nearly three hours the jury returned verdicts of guilty against both men.
In support of the appeal against conviction counsel for the appellants argued that the judge erred in rejecting the motion to quash the indictment, or alternatively the submission that there was no case to answer. The argument was developed on the following lines: (1) That, as the appellants were charged with an attempt, it was incumbent on the prosecution to prove that if the relevant conduct had been completed it would have constituted a criminal offence. (2) That if the appellants had received £470 for cutting down the trees they would have been paid by reason of the...
To continue reading
Request your trial
- R v Miller (Steven)
-
R v Paulet and Others
...case this argument was rejected in R v Carter and others [2006] EWCA Crim 416 when, after an examination of a much earlier decision ( R v King [1987] QB 547) in the context of the current statutory provisions, the court, substituting “benefit” for “property” suggested that the question is: ......
-
R v Carter (2006)
...of the false representation. 37 The argument raised by Mr Bodnar was raised long ago, in 1986, in the reported case of R v King David [1987] 1 QB 547. In that case, to which it is unnecessary to refer on the facts, Neill LJ dealt with an argument, which like Mr Bodnar's, started with relian......
-
The Fraud Act 2006—Some Early Observations and Comparisons with the Former Law
...made is that D is authorised to make thetransaction. Under the former deception offences it had to be shown that44 [1970] 3 All ER 432.45 [1987] QB 547.The Fraud Act 2006—Some Early the obtaining was because of a false statement. In such cases the problemwas that the property was parted wit......
-
Cyber-Ticket Touting as Fraudulent Trading
...Reference (No 1 of 2001) [2002] 3 All ER 840 at 849; R v Bennett (1914) 9 Cr App Rep 146; R v Potger(1971) 55 Cr App Rep 42; R v King [1987] QB 547; Balcombe v De Simoni (1972) 126 CLR 576.60. The Federal Court of Australia rightly observes: “[W]hilst it is necessary to show the existence o......
-
Cyber-Ticket Touting as Fraudulent Trading
...Reference (No 1 of 2001) [2002] 3 All ER 840 at 849; R v Bennett (1914) 9 Cr App Rep 146; R v Potger(1971) 55 Cr App Rep 42; R v King [1987] QB 547; Balcombe v De Simoni (1972) 126 CLR 576.60. The Federal Court of Australia rightly observes: “[W]hilst it is necessary to show the existence o......
-
Money for nothing, cheques for free? The meaning of 'financial advantage' in fraud offences.
...v Hart [1984] 3 NSWLR 641. (159) See also Robert C Evans, 'Case and Comment: R v Vasie' (2006) 30 Criminal Law Journal 47. (160) R v King [1987] QB 547, 553 (Neill LJ, reading the judgment of Neill LJ, Waterhouse and Saville (161) Lanham et al, above n 146, 374. (162) (1989) 39 A Crim R 145......