30 November 1937
|H. M. Advocate|
When the learned Sheriff came to charge the jury he said this (I read one passage only):
"If Mr Allenby did choose to act as fish salesman for those other ships, and if he did utilise moneys belonging to the four ships mentioned in the indictment for the purpose of meeting liabilities of those other ships, I must direct you that that in law amounts to embezzlement."
In my judgment, that was a misdirection. The passage I have read was calculated to convey to the minds of the jury that it was enough that the moneys had been used in the way they were by the appellant. I respectfully think that that was a misdirection. Without laying down that a dishonest intention may not be inferred from an immixing of moneys, I think that this case was so exceptional that the jury should have been told explicitly that, unless they were satisfied that the appellant had acted dishonestly, they were bound in law to acquit him of the charge. No such direction was given. I think it was vitally important that it should have been given, having regard to two facts in the case—(1) that there appears to have been some kind of practice prevailing in the fish business in Aberdeen not dissimilar to the practice followed by the appellant; and (2) because the only accountant called in the case who had investigated the appellant's books said, not merely that they were kept with scrupulous accuracy and that nothing was concealed, but also that he could find no evidence of dishonest intention at all, and he had expressed that view to the proper authorities. When the leading witness for the Crown gives evidence of that kind one would require very clear and strong evidence before the Court would be justified in disregarding it; but, as I have already said, the whole evidence is not before us, and it is enough for the disposal of this case that the direction given by the learned Sheriff was inadequate. On that ground I move your Lordships that the appeal be allowed, and the conviction and sentence set aside.
I do not think it is necessary to make any reference to the authorities which were quoted to us except to say that the present case is one in which it was, in my opinion, much more necessary to direct the jury's attention to the question of honesty or dishonesty than either in the case of Duncan or in the case of Lee. In the case of Lee there was an admission that the accused had immixed funds of his client with his own and that he had used them for his own purposes, and in the case of Duncan there was a clear admission that the accused had used money with which he was entrusted for the purpose of paying his own private debts. And yet in both these cases it was thought necessary by the learned judge who presided at the trial to point out that it was a matter for the jury to consider whether the accused acted honestly or dishonestly. In this case I have no doubt, as I have said before, that that question should have been put. Towards the end of his charge the Sheriff came very near to putting it, because he said to the jury, "You will consider whether or not the man did what he did, believing he was entitled to do it." But, then, that part of the charge is just as defective as the other to which your Lordship has referred, because the Sheriff did not go on to direct the jury, as he ought to have done, as to what the consequence would be of taking one view or the other of what the accused believed.
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