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I'm always advising drivers to get their money up front if they undertake a journey of any considerable distance. Here is a typical reason why.
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R. v. WATERFALL.
COURT OF APPEAL, CRIMINAL DIVISION
[1970] 1 QB 148, [1969] 3 All ER 1048, [1969] 3 WLR 947, 53 Cr App Rep 596, 134 JP 1
HEARING-DATES: 25 July 1969
25 July 1969
Criminal Law -- Obtaining pecuniary advantage by deception -- Acts constituting offence -- Incurring debt subsequently evaded -- Theft Act 1968 (c. 60), s. 16 (1).
Criminal Law -- Obtaining pecuniary advantage by deception -- Deception -- Ability to pay implicit in circumstances -- Taking taxi after agreeing fare with driver -- Theft Act 1968 (c. 60) s. 16 (1).
Criminal Law -- Obtaining pecuniary advantage by deception -- Dishonestly -- Honest belief negativing dishonest intent -- Test of honest belief subjective -- Theft Act 1968 (c. 60), s. 16 (1).
HEADNOTE:
The appellant arranged for a taxi driver to driver him from Southampton to London at 3.50 one morning and a fare (L14) was agreed. On arrival at the destination the driver asked for £ 10 in advance and the appellant said that he would pay this on arrival at his accountant. They drove then to the appellant's former lodging where he hoped to borrow money. Neither there nor from his accountant did he succeed in borrowing any money. They returned to Southampton and the driver was never paid. The appellant was charged with obtaining pecuniary advantage by deception contrary to s. 16 (1) * of the Theft Act 1968. In the course of summing-up the deputy recorder directed the jury, in relation to the appellant's belief that he could borrow money from his accountant: "... what you have to decide in regard to that is not merely was it a genuine belief but was there any reasonable ground for thinking that [the accountant] would lend him money." The appellant was convicted. On appeal,
* Section 16 (1), so far as material, is set out at p. 1049, letter E, post.
Held: the conviction would be quashed, because --
(i) although the appellant, by making himself liable for a debt which he had evaded, had obtained a pecuniary advantage within s. 16 (1) (see p. 1049, letter H, post); and
(ii) although the appellant, by taking a taxi in circumstances such as to convey that he had money to pay, had acted by deception within s. 16 (1) (see p. 1049, letter I, post); yet
(iii) the test whether the appellant had an honest belief in his ability to pay the fare was a subjective test and, whilst the absence of reasonable ground might point strongly to the fact that that belief was not genuine, it was for the jury to say whether or not the appellant had a genuine belief for the purposes of s. 16 (1) (see p. 1050, letter E, post).
Appeal allowed.
NOTES:
As to obtaining pecuniary advantage, see SUPPLEMENT to 10 HALSBURY'S LAWS (3rd Edn.) para. 1586A, 2.
For the Theft Act 1968, s. 16, see 8 HALSBURY'S STATUTES (3rd Edn.) 793.
INTRODUCTION:
Appeal. This was an appeal by Arthur Geoffrey Waterfall against his conviction at the Southampton Quarter Sessions on 1st March 1969 of obtaining pecuniary advantage by deception contrary to s. 16 (1) of the Theft Act 1968 before the deputy recorder (G. G. MACDONALD, ESQ.) and a jury. He was sentenced on 28th April 1968 by being subjected to a hospital order under s. 60 of the Mental Health Act 1959. The facts are set out in the judgment of the court.
COUNSEL:
W. J. F. Ward for the appellant. J. A. C. Spokes for the Crown.
PANEL: Lord Parker, C.J., Waller and O'Connor, JJ.
JUDGMENTBY-1: LORD PARKER, C.J.
JUDGMENT-1:
LORD PARKER, C.J., delivered the judgment of the court: The appellant was convicted on 1st March 1969 at Southampton Quarter Sessions of obtaining pecuniary advantage by deception; he was, after an adjournment, sentenced by having a hospital order made under s. 60 of the Mental Health Act 1959. He now appeals against his conviction on a point of law.
The facts are in a very short compass and are somewhat unusual. In the early hours of 31st January 1969 the appellant telephoned for taxi and asked the driver to take him to the station at Southampton to catch a train to London. The driver pointed out that at that hour of morning -- it was then 3.50 a.m. -- there was no train to London, but after some discussion he offered to drive the appellant to London for £ 14. The appellant said he had an appointment at the B.B.C. early in the morning, and when they arrived there the driver asked for £ 10 in advance and the appellant replied: "You'll get that when I get to Harley Street and see my accountant." By this time the taxi driver felt that he was being deceived.
They then drove off to Highgate to an address where the appellant said that he had once lodged and where he hoped to borrow money. He did not obtain any success there, nor did he get any success out of the accountant at Harley Street; indeed he said to the taxi driver that the accountant was not able to let him have any money. In the result they drove back to Southampton where the appellant tried to raise money at different addresses, and so it went on. The driver was never paid. The prosecution case was that from beginning to end the appellant had a dishonest intent and that he never intended to pay the taxi driver the money.
Section 16 of the Theft Act 1968 provides:
"(1) A person who by any deception dishonestly obtained for himself or another any pecuniary advantage shall on conviction on indictment be liable...
"(3) For purposes of this section 'deception' has the same meaning as in section 15 of this Act."
Section 15 (4) provides:
"For purposes of this section 'deception' means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person."
Finally s. 16 (2) provides:
"The cases in which a pecuniary advantage within the meaning of this section is to be regarded as obtained for a person are cases where -- (a) any debt or charge for which he makes himself liable or is or may become liable (including one not legally enforceable) is reduced or in whole or inpart evaded od deferred..."
Looking at the engredients of this offence it was quite clear that there had been an obtaining of a pecuniary advantage, in that the appellant had made himself liable to a debt which he had evaded. Secondly, it is perfectly clear that he did that by deception; not only was the conduct of taking a taxi in those circumstances such as to convey that he had money to pay, but according to the taxi driver there had beena specific assurance that the appellant had money to pay. True, the appellant denied that, his case being that he believed and honestly believed that the accountantin Harley Street would provide the money.
The sole question as it seems to me in this case revolves round the third ingredient, namely whether that what was done was done dishonestly.In regard to that the deputy recorder directed the jury in this way:
"... if on reflection and deliberation you came to the conclusion that [the appellant] never did have any genuine belief that [the appellant's accountant] would pay the taxi fare, then you would be entitled to convict him. But if you felt on weighing up all of the evidence you have heard that there was some real doubt in your mind, not fantastic but some real doubt in your mind as to whether or not [the accountant] might have paid then, of course, [the appellant] would be entitled to be acquitted."
In other words, in that passage the deputy recorder is telling the jury they had got to consider what was in this particular appellant's mind; had he a genuine belief that the accountant would provide the money? That, as it seems to this court, is a perfectly proper direction subject to this, that it would be right to tell the jury that they can use as a test, although not a conclusive test, whether there were any reasonable grounds for that belief. Unfortunately, however, just before the jury retired, in two passages of the transcript, the deputy recorder, as it seems to this court, was saying that one cannot hold that the appellant had a genuine belief unless he had reasonable grounds for that belief. The passages read thus:
"It is entirely a matter for you to decide; you have to decide not merely whether [the appellant] genuinely believed he might get some money from [the accountant], but whether he had any reasonable ground for thinking so... So, what you have to decide in regard to that is not merely was it a genuine belief but was there any reasonable ground for thinking that [the accountant] would lend him money..."
Having listened to counsel for the Crown, who has sought to support this verdict, the court is quite satisfied that those directions cannot be justified. The test here is a subjective test, whether the appellant had an honest belief, and of course whereas the absence of reasonable ground may point strongly to the fact that that belief is not genuine, it is at the end of the day for the jury to say whether or not in the case of the appellant he did have that genuine belief.
In those circumstances, this court has come to the conclusion that the verdict must be quashed. Counsel for the Crown has very properly not invited this court to apply the proviso n(1). It would seem quite impossible to do so when the wrong test has been left to the jury. What the jury here may have said if they had been given a proper direction, this court cannot say.
n(1) To so. 2 (1) of the Criminal Appeal Act 1968.
DISPOSITION:
Appeal allowed. Conviction quashed.
SOLICITORS:
Bailey, Churchman and Churchman, Southampton (for the appellant); P. K. L. Danks, Winchester (for the Crown).
[Reported by E. H. HUNTER, Esq., Barrister-at-Law.]
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