Lilliecrap v The King - [1905] HCA 30

LILLIECRAP AND ANOTHER v. THE KING.

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Special rerdict Illegally using Precise words of Statute not followed-Offer

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

Sec. 130 of the Crimes Act 1900 provides that on the trial of a person for stealing cattle, the jury, if they are not satisfied that the accused is guilty of that charge, but are satisfied that he is guilty of an offence under sec. 131 of the Act, that is, of taking and working or otherwise using cattle the property of another person without the consent of the owner, may acquit the accused of the offence charged and find him guilty of the other offence, and he shall be liable to punishment accordingly.

The applicants were charged with stealing cattle, and also with feloniously receiving cattle knowing them to have been stolen. The Judge explained to the jury the verdict which they were entitled to return under secs. 130, 131, describing the offence in the latter section as "illegally using." The jury acquitted the prisoners of the offences charged, and found them guilty of "illegally using."

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

Special leave to appeal from the decision of the Supreme Court, R. V. Lilliecrap and another, 22 N.S.W. W.N., 125, refused.

MOTION for special leave to appeal.

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

2 CLR 682

by the presiding Judge in his summing up, that if they were of

the opinion that the cattle had not been stolen by the accused but had been unlawfully used by them without the consent of the owners, they might find a verdict of "illegally using." The Judge explained to the jury both the elements of the offence defined in sec. 131, i.e., the taking and the using, without the consent of the owners. The jury acquitted the accused of stealing and of receiving, but found them guilty of "illegally using." The attorneys for the prisoners then took the point that the verdict of illegally using" was a nullity. Certain other points were taken, which are not material to this report, and a special case was stated for the opinion of the Supreme Court on the point mentioned as well as on the others. That Court held that the verdict, although it was not technically correct, was in the form commonly used to denote the offence defined in sec. 131, and was a sub-…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lilliecrap v The King

Details

AGLC: Lilliecrap v The King [1905] HCA 30
Case: [1905] HCA 30
Decision Date: 4 September 1905

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Lilliecrap against a conviction for illegally using a motor vehicle, a charge brought by The King. The central issue on appeal concerned the validity of a special verdict returned by the jury.

The Court was required to determine whether the special verdict, which stated that the appellant was "illegally using" the motor vehicle, was sufficient to support a conviction under sections 130 and 131 of the Crimes Act (N.S.W.). Specifically, the Court had to assess if the jury's wording, while not precisely mirroring the statutory language, substantially described the elements of the offence.

The Court found that the jury's verdict, although not using the exact phrase "illegally using a motor vehicle," clearly and substantially described the offence as defined by the relevant sections of the Crimes Act. The judges were of the view that the verdict was "obviously right" and that no miscarriage of justice had occurred.

Special leave to appeal was therefore refused.

Orders