Scottish High Court of Justiciary Decisons

LORD JUSTICE-CLERK (Aitchison).—The appellant was tried and convicted in the Sheriff Court at Aberdeen on a charge of embezzlement. He was managing director of a company called Benjamin Allenby, Limited, and as such he acted as fish salesman for a number of trawl owners. It is common ground that he failed to account to four of these trawl owners in respect of sums amounting in all to upwards of £900. The practice of the appellant was to pay all the moneys he received from purchasers of fish into a common fund. I do not think that there was anything wrong in that, because, as was explained to us by Mr Burnet, a purchaser might on the same morning buy from half a dozen different trawl owners, and make out one cheque to the appellant as fish salesman, and, therefore, the keeping of a common fund in the first instance was perfectly right and proper. The method of the appellant was then to pay out by means of his own cheques on the common fund to the different owners the sums due to them from time to time. It is in evidence that the books of the appellant were kept with scrupulous accuracy. Nothing was concealed. Not a single penny went into the appellant's own pocket, except in the sense that he utilised the common fund for the purpose of making disbursements on behalf of all the trawl owners. It was part of his own business to make such disbursements. What happened was this—there is really no dispute about the facts—that he used some of the moneys that belonged to the four trawl owners in question to make advances to other trawl owners, whose moneys he applied when necessary in the same way. Now, there is little doubt that strictly speaking that was an irregular thing to do. It would have been better for the appellant to have kept separate accounts, and, although the moneys went into a common fund in the first instance, to have apportioned it and paid it over with the least possible delay, charging disbursements, when made, each against its own proper account. But while this would have been strictly the proper course to follow, I cannot find in what the appellant did any evidence of embezzlement; but, as we have not gone fully into the facts and as there is a clear ground of judgment in the terms of the charge, I say no more about that.

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.

LORD PITMAN .—I agree on the ground that it is sufficient for the decision of the case that the Sheriff did not give the jury a chance of considering whether the accused was dishonest. I should not like it to be thought that the fact that the accused had a personal interest in the transactions was irrelevant, or that the fact that the firm was paid for advances made by it to one trawler out of the drawings of another trawler had no bearing on the question to be decided. Nor should I like it to be thought that this Court must be held as approving of the system adopted by the accused. These questions were not properly brought before the jury, and, in my opinion, the verdict should be set aside.

LORD WARK .—I am of the same opinion. I think, with your Lordships, that the charge given by the learned Sheriff in this case amounted to a misdirection with regard to a matter which was vital to the accused and vital to the case. Speaking for myself, I do not think that there ever can be a conviction of embezzlement unless the jury find evidence of dishonest intention, although evidence of dishonest intention may be afforded either by acts which are deliberate or by acts which are reckless. We have not, of course, in this case had the evidence fully discussed before us, but there does not appear to be any real controversy on the facts. While, like your Lordships, I must not be taken as approving of the system of business which was carried on by the accused here, I think that there was certainly room for the jury, if they had been given an opportunity to consider the question, to find that he had acted with complete honesty from beginning to end. The jury were not given an opportunity of considering that question at all, and for that reason I agree with your Lordships that the verdict cannot stand.

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.