LIniecraP v '

High Court of Australia|1905-07-01|Before: O'Connor JJ, Magistrates J, Coxnor J

a ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

tially described - Crimes Act (N.S.W.), (No. 40 of 1900), secs. 130, 131 cial leave to appeal - Decision obviously right.

c. 130 of the Crimes Act 1900 provides that on the trial of a person for

ther person without the consent of the owner, may acquit the accused

he offence charged and find him guilty ot the other offence, and he shall e to punishment accordingly.

e applicants were charged with stealing cattle, and also with feloniously

eiving eattle knowing them to have been stolen. 'The Judge explained to

jury the verdict which they were entitled to return under secs. 130, 131,

The Supreme Court having, on a special case stated, sustained the convic- ion on the ground that the verdict returned was a substantially accurate eription of the offence created by sec. 131, the High Court, being of the tion that that decision was obviously right, refused to grant special leave

leave to appeal from the decision of the Supreme Court, R. v. crap and. another, 22 N.8.W. W.N., 125, refused.

applicants were charged at Quarter Sessions under an on containing counts for stealing cattle, and for felon- ving cattle knowing them to have been stolen. The told by the Crown Prosecutor in his address, and also

lict - " Megally using" Precise words of Statute not followed - Offence H.C. oF A.

g cattle, the jury, if they are not satisfied that the accused is guilty of S@mlember 4. ;charge, but are satisfied that he is guilty of an offence under sec. 131 of Grigith c.J.,

H. C. or A. by the presiding Judge in his summing up, that if they ;

"stated for the opinion of the Supreme Court on the point menti

the opinion that the cattle had not been stolen by the but had been unlawfully used by them without the conse the owners, they might find a verdict of "illegally using," Judge explained to the jury both the elements of the of defined in sec. 131, i. the taking and the using, without consent of the owners. The jury acquitted the accused of ste and of receiving, but found them guilty of "illegally usin attorneys for the prisoners then took the point that the of "illegally using" was a nullity. Certain other points taken, which are not material to this report, and a special ca

as well as on the others. That Court held that the verd although it was not technically correct, was in the form eomn used to denote the offence defined in sec. 131, and was stantially accurate description of it. The other points b decided against the prisoners, the conviction was sustained ; J Lilliecrap and another (1).

The present application was for special leave to appeal fi that decision.

Garland, for the applicants. Where a special verdict is retu it is necessary that the jury should state in their finding all essential elements of the offence of which they intend to eon the accused. If they do not clearly state these matters, impossible to say whether they have really considered and found them against the accused. There should be no u tainty in the verdict. If the words used are consistent innocence, i.¢., are capable of meaning something which | offence in law, the verdict is bad. Although in R. ve H reported in Addison's Digest of Criminal and 'Magistrates J p. 303, it was held that a verdict of "receiving" was a valid there are later cases inconsistent with that decision. An inf tion which does not allege intent, where intent is a nee ingredient of the offence, is bad: R. y. O''Hearn (2), and ing of the jury must set out substantially all the matters 0 would have to be stated in the information. They should fo

ns of the section empowering them to return the particular Here both a " taking" and a " using" were essential.

Coxnor J. - Have not the words "illegal using" been so only used that they have almost acquired a technical ng to indicate the particular offence mentioned in sec. 131 2] n if so, that would not be sufficient. This particular jury ot have so understood them. It was held that a verdict of 'ully wounding" was not a proper verdict under see. 35.

lover, or the special count referred to in order that the jury ht give their assent.

FitH C.J. The point taken in this case is a very simple The prisoners were charged with larceny and with receiv- g. Under the Statute a person charged with larceny may be victed of an offence under sec. 131, i.c., of taking and' working erwise using cattle the property of another person without ent of the owner or person in lawful possession thereof, may be punished accordingly. At the trial of the prisoners learned Judge in his summing up told the jury that they

y thought that the cattle were only taken for the purpose of ng them, they might find a verdict of "illegally using." The y acquitted the accused of stealing and of receiving, and md them guilty of "illegally using." The objection taken that the verdict ought to have been returned in the terms section, i.¢., guilty of "illegally taking and using" the in question. A special case having been stated, it was d before the Supreme Court that in a special verdict Jury must use the precise words of the section describing the But that Court took the common sense view that it is sufficient if the words used in the oral verdict are those com- used to describe the particular offence. It is not disputed words used were those under which this offence is com- y known. The Supreme Court followed the case BR. v. Hall,

Ss ae A. Addison's Digest of Criminal and Magistrate's Cases, p. 303, wh + é

ae was decided in 1874 by Sir James Martin C.J., Fanucett and Ha '. Lunecrar grave JJ. In that case the accused was charged with healt . and receiving, and the jury returned a verdict of guilty of receiy ing, omitting the words "feloniously" and "well knowing : same to have been stolen." The Supreme Court held that the verdict was a valid one, and sustained the conviction,

I cannot help thinking that in this case the point is not seriously

| of opinion, therefore, that the decision sought to be appealed team -is obviously right, I think that special leave to appeal from it should be refused. :

v Ward, Barton J., and O'Connor J., concurred. [1989] VR 149 Freee v = mas : Lig SEER ; Leave refused.

Lid [1984 dt Cor RT Fey eee an Beg ie ie Foll Kastropil, poy Frasee CrimR 164 ¥ Com of "4 Abas (8s) } aay

H.C. or A, Insolvency Act 1890 (Victoria) (No. 1102), secs. 70 (v.); 72 - Insolvency Act bal 1905. (Victoria), (No. 1513), sec. 5 - Married Women's Property Act 1890 (iclorah

- (No. 1116), secs. 10, 13 - Court of Insolvency - Jurisdiction - Application es

MELBOURNE, declare trustee entitled to property adversely claimed - Burden of proof - Savings

August 8, 9, of wife out of housekeeping allowance by husband - Deposit in Savings Bank - ,

10, ar 4, 15, Settlement - Grocer's licence - Goods and chattels "_Reputed ownership.

'The Court of Insolvency has jurisdiction under the Insolvency Act 1897 to : nt estate for a declara

Griffith C.J., : Barton and entertain an application by the trustee of an insolve

O'Connor JJ, Ly ' that property claimed by a third person to which paramount is part of the insolvent estate.

At a glance

Court

Decision date

Before

Source

Judgment (38 paragraphs)

Parties