R v Thomas Putland and Gladys Annie Sorrell

 

R v Thomas Putland and Gladys Annie Sorrell

CRIMINAL; Criminal Evidence, Criminal Law: CONSTITUTIONAL; Other Constitutional

COURT OF CRIMINAL APPEAL

HUMPHREYS, HILBERY AND HENN-COLLINS JJ

26, 27 NOVEMBER 1945

Criminal Law – Evidence – Rationed goods acquired without coupons – Onus of proof – Duty of prosecution to establish prima facie case – Consumer

Rationing (Consolidation) Order, 1944 (SR & O, 1944, No 800), arts 1, 2(3), 4.

Emergency Legislation – Rationing – Rationed goods acquired without coupons – Onus of proof – Duty of prosecution to establish prima facie case –

Consumer Rationing (Consolidation) Order, 1944 (SR & O, 1944, No 800), arts 1, 2(3), 4.

G S and T P were charged with having conspired to acquire, and having acquired rationed goods (viz, silk stockings) without surrendering the appropriate

number of coupons, in contravention of the Consumer Rationing (Consolidation) Order, 1944. It was submitted on their behalf that there was no case to go to

the jury because there was no evidence in regard to the non-surrender of coupons. In his summing-up, the trial judge directed the jury that, in a case of this

kind, a defendant alone might know whether coupons had been surrendered or not, and, therefore, if the prosecution had proved the whole case to the

satisfaction of the jury, it was not necessary to prove that no coupons had been given in order to establish a case requiring an answer from a defendant. On the

facts of the case (including the evidence given by G S and T P themselves) the jury found them guilty of the offences, and they were convicted. On appeal, it

was contended that the Order in question did not put the onus of proof on a defendant and the judge had, therefore, misdirected the jury in law in regard to the

onus of proof. The prosecution contended that the onus of proving that he had surrendered the appropriate coupons was on the defendant because that was,

very often, a fact peculiarly within his knowledge:—

Held – (i) Where a person was charged with an offence against the Consumer Rationing (Consolidation) Order, 1944, the prosecution had to establish to the

satisfaction of the jury a prima facie case for the defendant to answer. Until a prima facie case had been established against him, the onus of proving that he

had surrendered the appropriate coupons was not on the defendant.

R v Oliver distinguished.

(ii) there had been no misdirection in law according to the facts of the case in the judge’s direction to the jury. A summing-up was not intended to be a

full statement of the law upon the particular crime that was charged, but a direction to the jury as to the law to be applied by them to the facts of the particular

case.

(iii) upon the facts of the case, there was sufficient evidence for a jury to find that no coupons had been surrendered.

Notes

This case deals with the onus of proof on a charge of dealing in rationed goods without surrender of coupons. It should be compared with R v Sellars, p 83,

ante.

As to Facts Peculiarly within the Knowledge of One Party, see Halsbury, Hailsham Edn, Vol 13, pp 545, 546, para 615; and for Cases, see Digest, Vol

22, pp 40, 41, Nos 171–177.

For the Consumer Rationing (Consolidation) Order, 1944, see Butterworth’s Emergency Legislation [38] 1761.

Case referred to in judgment

R v Oliver [1943] 2 All ER 800, [1944] KB 68, 113 LJKB 119, 170 LT 110.

Appeals

Appeals against convictions on charges of contravening the Consumer (Rationing) Consolidation Order, 1944. The grounds of appeal alleged (i) that the judge

misdirected the jury as to the onus of proof; (ii) that there was no case proper to be left to a jury. The report deals only with the questions of law raised by the

appeals and not with the evidence of the appellants. The facts are fully set out in the judgment of the court given by Humphreys J.

G O Slade KC and Percy Lamb for the appellants.

R E Seaton for the Crown.

􀂭 85􀀉

27 November 1945. The following judgment was delivered.

HUMPHREYS J [delivering the judgment of the court]. The Consumer Rationing (Consolidation) Order, 1944, was made by the Board of Trade under the

Defence (General) Regulations, 1939, regs 55 and 55AA, to deal with the surrender of coupons in respect of the supply of rationed goods. Art 1 of the Order

made it an offence for any trader to supply rationed goods without the appropriate number of coupons being surrendered. Art 2(3) provides:

‘Where a person has acquired or manufactured rationed goods for the purpose of selling them to other persons, he shall not supply them unless the

appropriate number of coupons has been surrendered to him.’

Art 4 of the Order provides:

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‘A person shall not acquire rationed goods from any person without surrendering the appropriate number of coupons …’

To that there is a proviso which is immaterial in this case because it affords a possible defence to an accused person, putting the onus of proof upon that person

[that the supply to him of those goods without the surrender of coupons was not prohibited under the provisions of the Order]. No one has suggested that the

defence in this case have proved, or attempted to prove, at any stage of the proceedings, that the proviso would apply to this case.

Those being the relevant articles of the Order, the first count of the indictment in this case charged three persons, Marchant and the two appellants, Mrs

Sorrell and Putland, with a conspiracy to acquire rationed goods without the appropriate number of coupons being surrendered. The second count charged all

three of them with actually acquiring named rationed goods, ie, 314 pairs of silk stockings, without surrendering the appropriate number of coupons. The third

count charged all those three persons with conspiring together to supply rationed goods which had been acquired for the purpose of selling to other persons.

They were all convicted on counts 1 and 2. Marchant and Mrs Sorrell were convicted on count 3. Putland was acquitted by the jury on count 3, a not

unimportant matter to keep in mind because it shows how carefully the jury discriminated in this case between the parts played by the three then defendants.

Marchant at one time appealed or desired to appeal, against his conviction, but he abandoned that appeal and only appealed against his sentence and has been

dealt with. The other two are the appellants in this case, and they have each been given leave to appeal against their convictions on the ground that questions

of law worthy of consideration were proposed to be argued.

The first and most important point, from the public point of view, which has been raised in this case is that there was misdirection in law by the deputy

chairman who tried the case in regard to that very important matter, the onus of proof. Two occasions are relied upon, the first being when a submission was

being made that there was no evidence to go to the jury. There being a submission that there was no evidence from start to finish about the surrender or the

non-surrender, of coupons, the question of onus of proof was discussed. The deputy chairman observed that on some occasions the onus is shifted to the

defendant to some extent. The matter being argued by counsel for the defendants, who said that there was nothing in the Regulations which puts the onus on

the defendant, the deputy chairman said:

‘No, there is nothing in the Regulations, but I think in law there is.’

Later, when he came to sum up to the jury the deputy chairman said:

‘It has been urged by defending counsel that there is no evidence about the non-surrender of coupons. Well, there is no direct evidence, but in a case

like this if you find that the defendants have acquired the goods, they must know better than anybody else, they may be the only persons who know,

whether they have given the proper amount of coupons or not, and it is quite sufficient for the crime that they have acquired the goods, the defendants

being left, if they desire, to prove that they did give the proper number of coupons. Of course, on the whole case the prosecution have to prove the case

to your satisfaction, but it would not be necessary for the prosecution to prove that no coupons had been given in order to establish a case which

required some answer from the defence.’

That is alleged to be a misdirection upon that matter and a misdirection in law.

We were referred in regard to that matter to R v Oliver which is binding upon us so far as it is relevant to the present case. The Order which was being

considered in that case was the Sugar (Control) Order, 1940, which made it an 􀂭 86􀀉 offence for any wholesaler by way of trade to supply any sugar; it is an

absolute prohibition, subject to this, that he may do so “in accordance with the terms of a licence, permit or other authority granted by … the Minister.” So

that no person may do the act—no person may deal in sugar at all—unless he has a licence. The court held, upon the terms of that Order, that the onus was on

the defendant to prove that he had a licence, that being a fact peculiarly within his own knowledge, and the prosecution was therefore under no necessity of

giving prima facie evidence of the non-existence of a licence. There is, in our opinion, a very broad distinction which must be observed between that case and

the present. In that case the prohibition against doing the thing was absolute, and it was for the defendant, if he wanted to show that he might do it lawfully, to

provide some excuse such as a licence or other authority from the Minister.

In this case, the offence (I am now dealing more particularly with the first two counts of this indictment) which is created is not in dealing in rationed

goods, either by way of supply or by way of acquiring; that remains lawful. There is no reason why anybody should not deal in rationed goods if they like, but

what is provided is that, if a person does deal in rationed goods in a particular way, he must do something else, ie, he must surrender the appropriate number of

coupons. That seems to us to be a slightly different matter. The view we take of the onus of proof in such a case is this: we are not prepared to hold that the

prosecution is bound to prove by evidence that in fact there was no surrender of coupons, because in many cases that would be quite impossible. But we do

think that the prosecution, in making a charge against persons of having contravened this Order, must give some prima facie evidence to the jury upon which

the jury would be entitled as reasonable people to find as a fact that there was no surrender of coupons. When the prosecution have done that, there is, in our

opinion, not a change in the onus of proof, but there is a case against the defendants upon which the jury may convict them, unless they can upset the prima

facie case which has been made against them. We are very far from saying that that means that the defendant must prove in the first instance anything at all.

It was argued as to how absurd it would be if the law were that any person who is found in possession of rationed goods, which he obviously and admittedly

has acquired by buying, had to prove that, on buying those articles, he had surrendered coupons. Every day cases might arise in which the servants or officials

of the Board of Trade might say to a perfectly respectable person: “You are wearing a shirt which is quite new” (or some other rationed goods which are quite

new) “you must satisfy me that when you bought that you surrendered coupons.” The answer might be—the article in question being, say, a handkerchief or a

tie—“I bought it three weeks ago somewhere or other; I cannot tell you where. I found myself without a handkerchief, I went into a shop and I gave a coupon;

I cannot tell you where the shop was, I do not know, and even if I did know the shop, it would not help you because it was a cash transaction; the shopkeeper

has not my name, does not know me, and I do not suppose for a moment he recollects the transaction.” It would be absurd to say that such a person must be

convicted because he could not prove that he had in fact surrendered a coupon. In our view, there is no necessity for a defendant in the first instance to give

evidence that he has surrendered coupons—he being a person who has been proved to have acquired rationed goods—unless and until there is some case made

against him, some prima facie case, so that an answer is called for. Then it is for him; he can either sit down under it, or he can give evidence, make

statements, do what he likes in the matter by way of satisfying the tribunal of fact that the transaction was in truth a proper one because there was a surrender

of coupons.

Every case must be decided upon its own facts. Therefore, when we look at the direction given to the jury in this case by the deputy chairman, we shall

say that it was, or was not, a misdirection in law according to the facts of the case to which he was addressing his mind. A summing-up is never intended to be

a full statement of the law upon the subject of a particular crime which is charged in the indictment. It is a direction to the jury as to the law to be applied by

them to the facts of the case as they find them, and no more. Perhaps I ought to add that it is always necessary to do what the deputy chairman did in this case,

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ie, to warn the jury that upon the whole matter the onus is still 􀂭 87􀀉 upon the prosecution to satisfy them that the crime charged in the indictment has been

committed by the defendants, otherwise they must acquit.

The second point which has been raised is that there was no evidence that the defendants acquired or agreed to acquire these rationed goods without

coupons. Upon that matter, counsel for the Crown has drawn our attention to one fact which is so important that it could be said to be the principal fact in this

case; ie, the goods in question were silk stockings. The number of pairs of silk stockings was 314. Evidence was given that the number of coupons that would

have to surrendered for those 314 pairs of silk stockings was 942 coupons. When one has evidence given like that, it becomes slightly ridiculous to talk about

the surrender of coupons by private persons. The jury would know—they must be taken to have known—that nobody in England under this rationing system

ever, at any time, gets 900 coupons (or 300 supposing that each supplied his quota); and the idea that coupons could have been surrendered to that number was

completely ridiculous. That is the best possible evidence that coupons were not surrendered—the best possible prima facie evidence, at all events, that they

could not have been. When one looks at the evidence in the case, as the deputy chairman was bound to do, when he was summing-up to the jury, it consisted

not only of proof by the prosecution that 942 coupons were apparently being dealt with, but also of the evidence of the two defendants (now the two

appellants): each of them had purported to give an account of their doings for the whole day—where they went, who they saw, what they did—and from

beginning to end they had never suggested that a single coupon was handed over by anybody to anybody else. In our view, the deputy chairman was perfectly

justified in making the observation he did when he said:

‘The truth is that the surrender of coupons does not come into this case at all.’

Nobody has ever suggested that that is the defence to this case; the defence that is set up is: “We never acquired the goods and we never agreed to acquire the

goods.” If they did acquire them, they acquired them, in our view, without the surrender of coupons.

Appeal of Gladys Annie Sorrell dismissed. Appeal of Thomas Putland allowed and conviction quashed on other grounds.

Solicitors: Oswald Hickson, Collier & Co agents for Bracher, Son & Miskin, Maidstone (for the appellants); Solicitors for Metropolitan Police (for the

Crown).

R Boswell Esq Barrister.

[1946] 1 All ER 88