R v Oliver

JurisdictionEngland & Wales
Date1944
Year1944
CourtCourt of Appeal
[COURT OF CRIMINAL APPEAL] REX v. OLIVER. 1943 Nov. 8, 10, 24. VISCOUNT CALDECOTE C.J.

Criminal law - Evidence - Onus of proof - Proof of absence of authority - Sentence - Penalty increased after commission of offence.

The appellant was convicted on an indictment charging him, as a wholesaler, with supplying sugar, on various dates in 1940 and 1941, otherwise than under the terms of a licence, permit or other authority granted by the Minister of Food, contrary to reg. 55 of the Defence (General) Regulations, 1939, and art. 2 of the Sugar Control Order, 1940. Quarter sessions, availing themselves of powers given by St. R. & O., 1942, No. 501 (which increased the penalties prescribed by reg. 92 of the Defence (General) Regulations, and later by St. R. & O., 1941, No. 1981), sentenced the appellant to three years' penal servitude and fined him 8,500l.

The appellant appealed against conviction and sentence on the grounds (1.) that the prosecution had failed to discharge the onus of proving that he had not a licence, and (2.) that the increased penalties authorized by Or. No. 501 did not apply to an offence complete before that order came into force:—

Held, that the onus was on the appellant to prove that he had a licence, as being a fact peculiarly within his own knowledge, and the prosecution was under no necessity of giving prima facie evidence of the non-existence of a licence.

Semble, the indictment would have been sufficient if it had merely charged the accused with having supplied controlled goods contrary to the provisions of the order:—

Held, further, that the words of art. 1 (1D.) of Or. No. 501 were sufficiently clear and wide to require the court to find that the increased penalties applied to offences already complete.

Buckman v. Button [1943] K. B. 405, approved.

APPEAL against conviction and sentence.

On July 9, 1943, at Middlesex Sessions, the appellant, Frank Ephraim Oliver, was convicted on an indictment charging him, as a wholesaler, with supplying controlled goods, to wit, sugar, on various dates in 1940 and 1941, otherwise than under the terms of a licence, permit, or other authority granted by the Minister of Food, contrary to reg. 55 of the Defence (General) Regulations, 1939, and art. 2 of the Sugar Control Order, 1940. On other counts of the indictment he was convicted of selling sugar and other controlled goods at prices in excess of the maximum authorized by orders made under reg. 55 of the Defence (General) Regulations, 1939. The appellant was sentenced to three years' penal servitude and was fined 8,500l. and ordered to pay part of the costs of the prosecution.

At the trial the prosecution tendered no evidence that the appellant did not have a licence to supply sugar by wholesale, and the appellant did not give any evidence on his own behalf. In passing sentence, quarter sessions availed themselves of the powers conferred by St. R. & O., 1942, No. 501F1, which increased the penalties above those prescribed by reg. 92 of the Defence (General) Regulations, 1939, and later by St. R. & O., 1941, No. 1981. Order No. 501 came into operation after the date of the commission of the offences by the appellant, but before the date of his conviction.

Slade K.C. and Hoy for the appellant. The conviction of the appellant was wrong. The prosecution gave no evidence that the appellant did not possess a licence, but that was an integral part of their case. Rex v. ScottF2 shows that the onus in such a case would only be on a defendant where the fact was peculiarly within his knowledge, and here the information could easily have been obtained by the prosecution from official sources. The party in a criminal trial who alleges an unlawful act must prove it: Williams v. East India Co.F3; Elkin v. JansenF4; Abrath v. North Eastern Rly. Co.F5; and Hire Purchase Furnishing Co. v. RichensF6. [HALLETT J. referred to Rex v. JamesF7 and Rex v. AudleyF8.] As to sentence, the increased penalties provided by St. R. & O., 1942, No. 501, cannot be imposed on the appellant. The order came into force after the commission of the alleged offences, and it is not retroactive. Buckman v. ButtonF9, a decision of a Divisional Court to the contrary effect, was wrongly decided, and should be over-ruled. Ex post facto criminal laws are peculiarly undesirable. In any case, the order is ambiguous. It can be read retrospectively or prospectively, and should, therefore, in accordance with the canons of construction, be read prospectively: Every statute which takes away or impairs rights acquired under existing laws, creates a new obligation, or attaches a new disability in respect of transactions or considerations already past, must be presumed to be intended not to have a retrospective effect: Maxwell's Interpretation of Statutes, 8th Ed., p. 190. It would be a gross injustice to increase the penalty for an offence previously committed unless it is expressly provided for in the statute. See also per Wright J. in In re AthlumneyF10. Order No. 501 creates two new offences, and that is an additional argument against its being retrospective. Moreover, a distinction is to be drawn between the phraseology of this Order and that of the order dealt with in Director of Public Prosecutions v. LambF11.

Sir D. Maxwell Fyfe, S.-G. and F. D. Levy for the Crown. If a statute lays down that an act is prohibited except in the case of persons who are excepted, the onus is on the defendant to prove that he is within the excepted class. There is a good deal of modern support for Lord Ellenborough's judgment in Rex v. TurnerF12; see Rex v. PayneF13, Rex v. JamesF14; and Williams v. RussellF15. The civil cases cited on behalf of the appellant are not in the least hostile to the principle contended for by the prosecution. On the question whether the increased penalties are retroactive, Humphreys J. in Director of Public Prosecutions v. LambF11 was really saying:— that the words of the order are clearly and unambiguously related to the time of conviction and not to the time of the committal of the offence, and entitled quarter sessions to pass the sentence which they did pass in the present case. If the words of the order are not quite clear then it is for the court to consider whether the order is intended to safeguard public interest, and to weigh...

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