R v Moys
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 18 May 1984 |
| Judgment citation (vLex) | [1984] EWCA Crim J0518-1 |
| Docket Number | No. 5666/B/83 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 May 1984 |
[1984] EWCA Crim J0518-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Mustill
and
Mr. Justice Otton
No. 5666/B/83
MR. A. GOYMER appeared on behalf of the Appellant.
MR. R. HAWORTH appeared on behalf of the Crown.
On 27th September 1983 in the Crown Court at Maidstone before Her Honour Judge Cosgrove and a jury, this appellant was convicted of handling stolen goods in respect of which he was sentenced to three months' imprisonment, and also of obtaining property by deception, in respect of which he was sentenced to one month's imprisonment concurrent, those sentences being suspended for two years. He was also ordered to pay £200 towards the costs of the prosecution.
This is an appeal on a point of law and consequently it is an appeal as of right.
The facts of the case are simple. There was a black and white mare named "Kizzy", valued, it is said, at about £600 or £700, owned by Miss Glynn. It was kept by Miss Glynn in some livery stables at Wincheap near Canterbury. On the evening of Sunday 16th May 1982 – the precise time is not known – someone stole that mare from the stables.
The mare re-appeared on the next day, Monday the 17th of May, when it was sold by this appellant, Robert Moys, to a man called Matthews for £480 in cash. The mare, to cut a long story short, was recognised by the owner. The news apparently got round that the mare had been returned to the owner. As a result of that Moys the appellant presented himself at the police station to say that he was the man who had sold the mare to Matthews.
The charge against him was first of all one of theft, which the jury found not to be proved; secondly one of handling this mare knowing it to be stolen, which the jury found to be proved; and thirdly, a charge relating to the sale to Mr. Matthews of obtaining money from Mr. Matthews by the deception that the mare was his to sell. So it will be seen that the two counts on which he was convicted stood or fell together. If he was not guilty of handling he would not be guilty of deceiving Mr. Matthews with the parting of his money.
The appellant denied throughout that he had been guilty either of theft or of handling. The main suspicious circumstance levelled against him was that he told two different stories about the circumstances in which he had come to buy the mare from a man whose name he did not know and whom he therefore could not identify.
The learned Judge correctly directed the jury as to the law of theft and indeed on all matters of law, with one exception, and that exception is the basis of this appeal. The passage of which complaint is made is this: "Thirdly, the prosecution has to satisfy you so that you are sure that at the time the horse came into his possession the defendant knew or believed that it was stolen. 'Believed' in that sense means he suspected very strongly that it was stolen and shut his eyes to that possibility altogether. It does not cover having found it and not enquiring where it came from."
No doubt that form of words was derived from the decision of the Divisional Court in Atwal v. Massey (1972) 56 Cr. App. E. 6. In that case at page 8 of the report Lord Widgery, Chief Justice, said this: "The question is a subjective one: was the appellant aware of the theft or did he believe the goods to be stolen or did he, suspecting the goods to be stolen, deliberately shut his eyes to the consequences?"
But what was apparently not drawn to the learned Judge's attention in the present case was that those words of Lord Widgery in the Divisional Court were considered by this Court in R. v. Griffiths (1974) 60 Cr. App. R. 14. In that case it was made clear that the words used by Lord Widgery in Atwal v. Massey must not be taken as adding another form of guilty knowledge to the words in the statute "know or believe", although it is true that at first sight the words used by the then Chief Justice may appear to have that effect.
Lord Justice James in the case of Griffiths, at page 18 of the report, had this to say: "There is a danger in the adoption of the passage cited from the judgment in Atwal v. Massey as the direction to a jury unless great care is taken to avoid confusion between the mental element of knowledge or belief and the approach by which the jury may arrive at a conclusion as to knowledge or belief. To direct the jury that the offence is committed if the defendant, suspecting that the goods were stolen, deliberately shut his eyes to the circumstances as an alternative to knowing or believing the goods were stolen is a misdirection. To direct the jury that, in common sense and in law, they may find that the defendant knew or believed the goods to be stolen because he deliberately closed his eyes to the circumstances is a perfectly proper direction."
In the present case the words used by the Judge plainly told the jury that strong suspicion coupled with a deliberate shutting of the eyes was not merely an alternative but was equivalent to belief. This is not correct for the reasons indicated. It was a material misdirection and the only remaining problem is that of whether the proviso should be applied.
It is true that there were suspicious circumstances. As I have already indicated, the appellant told two conflicting stories as to the circumstances in which he had come into the possession of this animal. On the other hand there were none of what have come to be regarded as the usual trappings of a guilty receipt, there was no reliable evidence that he paid too little for the horse. The prosecution evidence indicated that the absence of a receipt in these circumstances was not unusual: apparently people trading in horses are not apt to record their transactions in writing as a general rule in ordinary circumstances. Consequently there was nothing significant of that nature.
We accordingly feel unable to say that properly directed, the jury would necessarily have come to the same conclusion as that which they did. It follows therefore that the conviction on the handling must be quashed and the appeal allowed. As I have already indicated, the two counts stood or fell together and consequently the conviction on count 3, which dealt with the sale to Matthews, must also be quashed.
We would however like to take this opportunity of making it clear, if it is not already clear from the decision in Griffiths...
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