R v Kirby
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 11 July 1972 |
| Judgment citation (vLex) | [1972] EWCA Crim J0711-2 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 6002/A/71 |
| Date | 11 July 1972 |
[1972] EWCA Crim J0711-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Edmund Davies
Lord Justice Stephenson
and
Mr. Justice Thompson
No. 6002/A/71
MR. J. DICKSON appeared on behalf of the Appellant.
MISS A. GODDARD appeared on behalf of the Crown.
This is yet another appeal based upon the ground that the Jury returned inconsistent verdicts and that accordingly such verdicts of guilty as they pronounced should be regarded by this Court as unsafe and unsatisfactory and the resulting convictions quashed.
In relation to this matter we said in Drury as recently as November of last year (56 Criminal Appeal Reports at page 104) that there is no general rule that the mere fact that a Jury has returned inconsistent verdicts means that the Court of Appeal is obliged ex necessitate to quash any convictions which may have resulted. Each case depends on its own facts. The approach which this Court in the unreported case of Durante, decided on the 20th June 1972, said is the proper one was indicated by Mr. Justice Devlin in the unreported case of Stone, heard in the Court of Criminal Appeal on the 13th December, 1954. The learned Judge there said: "When an appellant seeks to persuade this court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that".
Respectfully approving of and adopting those words, we proceed to apply them to the present appeal of Gary Kirby who, on the 22nd November of last year at the Middlesex Area Quarter Sessions, faced four charges. The first was stealing a cheque; the second, that of handling the stolen cheque; the third, forging the cheque; and the fourth, obtaining £45 on the forged cheque.
He was acquitted of stealing and of obtaining. By the direction of the learned Judge he was also acquitted of handling. He was, however, convicted of forgery.
Mr. Dickson, who appeared below at both trials (for we are concerned with a second trial, the Jury having failed to agree on any of the counts at the first trial) began his helpful submissions by saying in the clearest terms that if the forgery count had stood alone there would have been no appeal. This was because there would then have been no ground of complaint, for he accepts that there was abundant evidence entitling the Jury to find that the accused, and none other than the accused, forged the cheque.
So this is a case, as we have said, which turns solely upon the alleged inconsistency of verdicts. The ultimate submission to which Mr. Dickson was driven was that, notwithstanding that the evidence of forgery was clear, the Jury were nevertheless not entitled to convict upon it. Upon the hypothesis that the evidence of guilt is clear, can a Jury who return the verdict which that evidence calls for properly be described as acting unreasonably in returning it? What Mr. Dickson says is that the case for the Crown was that one man stole the cheque, that the same man forged it, and that this same man then proceeded to cash it. We understand Mr. Dickson to say that, the Crown case being presented in that way (not, we add, by Miss Goddard who is here today and whom we have not found it necessary to call upon) the Jury were obliged to deal with the evidence in the same manner.
We entirely dissent from such a proposition. The Crown often advances theories. But it is ultimately for the Jury to examine the evidence and come to their conclusions as to the way in which it points.
Before we go into the facts of the case, there is one other preliminary observation that we would make. We do not know when this indictment was prepared, but the second count, that of handling stolen goods contrary to Section 22 of the Theft Act, 1968, is in our view defectively drafted. The particulars are that "Gary Kirby on or before the 21st day of December, 1970 in Greater London did dishonestly handle certain stolen goods, namely, a cheque, knowing or believing the same to be stolen goods". In Sloggett, reported in 1971 3 Weekly Law Reports 628, and in the cases of Marshall decided by this Court on the 17th December, 1971, and Alt in which we gave the judgment on the 23rd March, 1972, it was stressed that Section 22 of the 1968 Act deals with several kinds of handling. In the first part it deals with what may be described as receiving in the old sense of Section 33(1) of the Larceny Act, 1916. In the second half it deals with dishonestly undertaking or assisting in the retention, removal, disposal or realisation of stolen goods. In the latter case it has to be by or for the benefit of another person. In the general run of cases it is essential that the particulars of a handling count should state the particular form of handling that is being alleged. If more than one form is sought to be alleged then the different forms can be made the subject of different counts in the indictment. But in the present case, as we have said, handling being charged, the particulars merely say that the accused dishonestly handled. That...
To continue reading
Request your trial
-
Haynes and Jacob v R (Appeal)
...judge having regard to the whole of the evidence so to direct them. In this connexion we would refer to and respectfully adopt a dictum in R. v. Kirby (1972) 56 Cr. App. R. 758 at 761. In that case counsel advanced the proposition that the Crown having presented its case in a certain way th......
-
Williams, Craig John v R
...to establish inconsistency of verdicts rests upon the person making the submission (SeeR v Hunt [1968] 2 QB 433 at 438; R v Kirby (1972) 56 Cr App R 758).’ 3 In essence, this was a case of the complainant's word against that of the appellant as to the absence of consent and the doing of the......
-
R v James Nigel MacKie
...been referred to a number of authorities in relation to inconsistent verdicts. We think that it is only necessary to refer to one, namely, R v. Kirby [1972] 56 Cr.App.R. 758. The headnote in that case reads: "When an appellant seeks to obtain the quashing of a conviction on the ground that ......
-
R v Robert Brian Millgate
...in the words of Mr. Justice Devlin, (as he then was) adopted by this court in the cases of R. v. Durante (1972) 1 W.L.R.. 1612, and R. v. Kirby (1972) 56 Cr. App. R. 758. Mr. Justice Devlin said this: "When an appellant seeks to persuade this court as his ground of appeal that the jury had ......