to £48 12s. which included a procuration fee of £25, and a fee of £15 15s. for preparing the sub-mortgage. B. and J. received the amount of the loan less D.'s charges and after deducting their own charges which included a fee of £7 17s. 6d. for perusing the sub-mortgage they accounted to their client for the balance. On the taxation of the bill of costs of B. and J. the three charges above referred to were allowed by the Registrar who found that the mortgagor had agreed to pay a procuration fee. The mortgagor moved for a review of the taxation of these three items and alleged that the sub-mortgage was so negligently drawn that the solicitors were not entitled to any payment therefor. Held, that as the sums of £25 and £15 15s. were never in the possession of the mortgagor's solicitors and the sub-mortgage, although imperfectly drawn, would not have caused the mortgagor any loss the appeal from Stringer, J. (Re Bennett and Jacobson, 1924 G.L R., 44, dismissing the motion for review of taxation) should be dismissed. Re BENNETT & JACOBSON, 1924 G.L.R. 425. [New Zealand.] action-Actions Taxation-Action-Cross tried together-Counsel's fee and attorney's charges for attendances.-An action and crossaction were tried together and the plaintiff succeeded in both. The same brief was used by plaintiff's counsel for both actions and there were certain attendances common to both. In taxing the costs of the two actions the Registrar, after taking the circumstances into account, allowed a single fee for the brief and apportioned half to each action. He dealt similarly with the charges for the atten. dances. Held, that the Registrar's method of adjusting and apportioning the allowances was correct. CHESTERMAN & Co. LTD. v. HASELL, 1922 Tas. L.R. 19. [Tasmania.] Bankruptcy Fraudulent preference Costs -See BANKRUPTCY, col. 29. Order for costs-Summons under Fraudulent Debtors Act-Order for imprisonment.See JUSTICES, col. 248. Security for costs of appeal. See APPEAL. Action against alleged partners-Defendants successful-Not deprived of costs through misleading acts. See PARTNERSHIP. COUNTY. County Contract not made in proper form -Resolution of council-Whether ratification -Engineer's certificate-Right of action.— See CONTRACT, col. 67. Injury to county road-Right of action by council-Joinder of Crown.-See ROAD. Sale of goods to accused-Goods in possession of vendor-Larceny of goods from vendor.-A contract for the sale of certain goods had been entered into on the terms that the goods were not to be taken away by the purchaser until he had paid for them. The purchaser did take them away without paying for them and without the vendor's consent. Held, that there was sufficient title in the vendor to support an indictment for larceny. R. v. Hough (15 N.S.W.L.R. 204) followed. R. v. CAMERON, 24 S.R. 302; 41 W.N. 56. [New South Wales.] Theft of postal article-Evidence to go to the jury-Prisoner answering certain questions-Refusing to answer others. Two prisoners R. and D. were charged with stealing a postal article from a postal pillar. Against D. there was no direct evidence of his being near the postal pillar, but there was evidence that a man was with R. near. the pillar and that that man was similar in appearance and wore similar clothing to D. There was also evidence that R. and D. were later in company together and lived in the same house, and D. falsely represented himself to be R.'s brother-in-law. In a room in the house, which D. shared with a woman, a tube of adhesive substance similar to that found inside the pillar was discovered. This substance could be used for innocent purposes. D. gave the police a false address, and when told that the woman had been arrested and had made a statement, he said he would like to talk to R. about what they were going to do about her. He was told by the police that he would be lined up for identification, and on being asked questions he said he would say nothing until after the line-up. After being cautioned he answered some questions put by the police, and to other questions remained silent. A witness deposed to seeing the men at the pillar at the same time of the posting of the stolen articles, and that D. was not one of them. He also saw the same two men later at a railway station. Held, that there was no evidence fit to go to a jury of the guilt of D. To The mere fact that D. answered certain questions and did not answer others did not make his silence evidence against him. draw an inference against an accused person because he answers one question and does not answer others is unfair. R. v. Cramp ([1880] A.A.D., 1924 4 14 Cox C.C. 390) distinguished. R. v. RUDD AND DAWSON, 1923 S.A.S.R. 229 [South Australia.] Evidence-Case of suspicion Evasive explanation of presence.-Two men were convicted on a charge of breaking, entering, and stealing. The only evidence against one of them was that he was a friend and associate of the other man; that he was in a lane at the rear of the premises in which the robbery was committed at the time at which it was committed and that he gave an explanation of his presence there which was untrue. There was no evidence to show that his presence was the result of any concerted design to participate in the crime. The Court of Criminal Appeal quashed this man's conviction, and entered a verdict of acquittal. R. v. Gray (12 C.A.R. 244) followed. R. v. HAWKES, 41 W.N. 102. [New South Wales.] Demanding money with menaces-Attempt Misdirection Verdict of guilty of attempt only Whether equivalent to acquittal of offence charged-New trial.— Sect. 116 of the Crimes Act 1915, relating (inter alia) to with menaces demanding money with intent to steal the same, is designed to cover the case where the demand is not successful, and (semble) there cannot be an "attempt" to commit the offence referred to in the section. The prisoner was charged with having with menaces demanded certain money with intent to steal the same. There was evidence sufficient to be left to the jury, if properly directed that the prisoner did demand money with menaces and obtain money, but it appeared also that when the money was paid over to him it was not paid because of the menaces, but with a desire to trap him. The Chairman of General Sessions being apparently under the impression that the charge was one of obtaining money by demands and menaces with intent to steal it," directed the jury that on the facts they could not find the accused guilty of the offence charged, but only of an attempt to commit it. The jury returned a verdict of "guilty and the Chairman asked them, "I take it, that you have found the accused guilty of an attempt only, and not of the main charge of succeeding? To which the foreman replied: "That is so." Held, that the conviction should be quashed. Held, also, that a new trial should be ordered, inasmuch as in the circumstances the jury could not be said to have acquitted the prisoner of the offence set out in the presentment. Rex v. Studer (11 Cr. App. R. 307) and Reg. v. Walton (Le. & Ca. 288; 9 Cox. 268) discussed. R. v. HOPKINS, 1924 V.L.R. 484; 46 A.L.T. 74; 30 A.L.R. 350. [Victoria.] 66 Stealing motor car-Using car-Stealing petrol in car-The Criminal Code, s. 391 (2) (e). -A prisoner charged with stealing a motor car was proved to have taken the car from the owner's garage and to have driven it for three days. The car was found in the possession of the prisoner, who said it had been lent to him by the owner. Held, that the prisoner could be convicted of stealing the petrol in the car, but not of stealing the car. R. v. BAILEY, 18 Q.J.P.R. 34; 1924 Q.W.N. 38. [Queensland.] Stealing flute and case-Recent possession -Contradictory explanations of possession_ Possession seven months after stealing.A prisoner was charged with stealing a flute and its case, or receiving the same knowing it to be stolen. Evidence was given that the prisoner had disposed of the articles in question which were in fact stolen, seven and a-half months after their loss, and when questioned as to his possession had given contradictory statements in connection therewith. that the possession could not be regarded as recent, and that the contradictory statements were not sufficient evidence of a guilty possession. R. v. HARDY, 18 Q.J.P.R. 89; 1924 Q.W.N. 26. [Queensland.] Held, Pigs delivered in error by carrier to a carter, the agent for the accused-Carter unaware of error-Accused on delivery aware of mistake Whether larceny.-G. sent his carter to the wharf at Hobart to receive pigs consigned by steamer. By an innocent mistake on the part of all concerned, some pigs which were not those consigned to the accused were delivered to the carter who took them to the accused's premises. The accused at once recognised that a mistake had been made and that the pigs were not his. Nevertheless he appropriated them. Held, that the facts did not amount to larceny. R. v. GOODRICK 18 Tas. L.R. 36. [Tasmania.] 66 or Forgery-False document-Restrictive signification of " mens in statutory definitions. Sect. 228 (a) of the Crimes Act 1908, is to be construed distributively, and so construed reads as follows False document means (a) a document the whole or some material part whereof purports to be made by any person who did not make it; (b) a document the whole or some material part whereof purports to be made on behalf of any person who did not authorize the making thereof." This distributive reading involves a slight modification of the remaining words of sub-s. (a), which would then run as follows: or which, though made by the person who purports to make it or by the authority of the person on whose behalf it purports to be made, is falsely dated as to time or place of making, where either is material." R. v. WEBB AND MCLAUCHLAN, 1924 N.Z.L.R. 934; G.L.R. 224. [New Zealand.] 66 and the Adelaide manager deposed that he was its manager and that the Company carried on all kinds of insurance business and issued policies; the Adelaide manager also deposed that the company was incorporated in Victoria. Held, that there was evidence on which the jury could properly find that there was such an entity as the Southern Union General Insurance Company of Australia Limited. On the trial, two policies of insurance issued by the company to the accused were tendered as evidence; these were objected to, but the objection was overruled and the policies were put in. The local manager of the company was called and swore that he had authority to sign the policies. The power of attorney under which this alleged authority was conferred probably gave him no authority to sign policies, but there was evidence to show that the company issued policies in South Australia and that the local manager signed these, and evidence from which it could be inferred that the company knew of this. There was also ample evidence in admissions by the accussed of the existence of an insurance with the company. Held, that the jury could properly find on these facts that there was evidence that the premises burnt down were insured with the Company, and, semble, even if the signature was unauthorized, the prosecution by endeavouring to prove the existence of the insurance by putting in the policies and by the evidence of the signature of the local manager had not excluded or neutralized the effect of the admissions of the accused. Held, also, that in order to constitute the offence the existence of a valid policy was unnecessary as the accused believing a valid insurance to exist could have an intent to defraud. R. v. SEIDEL, 1923 S.A.S.R. 522. [South Australia.] Conspiracy Indictment Agreement to pay member of Parliament to bring about purchase of land by Crown-Exercise of official position outside Parliament-Public officer-Duties of member of ParliamentConflict of interest and duty.-A count of a criminal information by the Attorney-General of New South Wales alleged that A, B and C unlawfully conspired together and with other persons (unknown) that large sums of money should be " corruptly given by "B and C and other persons to A "in his official capacity," he "then being a public officer to wit a member of the Legislative Assembly of New South Wales, and that the said sums of money should be corruptly accepted by "A" in his said official capacity as inducement to " A in violation of his official duty to do or omit to do certain acts to wit to use his position as such member to secure the inspection of, acquisition and the payment in cash for certain estates by the Government of the State of New South Wales and which estates were to be paid for out of the public funds of the said State and to put pressure upon the Minister for Lands and other officers of the Crown to inspect acquire and pay cash for certain estates the said payment to A being to the public mischief," etc. Held, 66 66 by Knox, C.J., Isaacs, Higgins and Rich, JJ. (Gavan Duffy and Starke JF. dissenting), that the agreement alleged as a conspiracy was a criminal offence, although the allegation might be satisfied by proof of an agreement that A should use his position as a member of the Legislative Assembly exclusively outside Parliament and not by vote or speech in the Legislative Assembly, and although the transaction in respect of which he agreed to use his position to put pressure on the Minister for Lands might be one which would never come before Parliament and which, in his opinion and in that of the other parties to the agreement, was highly beneficial to the State. Decision of the Supreme Court of New South Wales (Ferguson, J.) reversed. R. v. BOSTON, 33 C.L.R. 386; 30 A.L.R, 185. [High Court.] Criminal Code Act 1913 s. 21-Wilful murder-Conflicting statements by accused— Motive-Intention.-Petition against a conviction for wilful murder. Held, the presence or absence of motive is only one of the circumstances to be considered in drawing a conclusion from the whole of the facts. MATAMIN ROSLAND v. R., 1924 W.A.L.R. 1. [Western Australia.] Murder Two persons concerned-Actual killing by person other than accused-Preconcert, evidence of, whether sufficientProof of guilt, "beyond reasonable doubt " -Conduct of trial-Shorthand notes of proceedings Correction by judge-Crimes Act 1915 ss. 3, 593, 594 (1) 599.-In broad daylight at the entrance to a busy suburban railway station and in a well-frequented public thoroughfare, B., a bank manager, who, it was reasonable to suppose, would be, and, in fact, was armed, had his bag, in which he had a large sum of money, snatched from his possession, and he was at the same moment shot. The snatching of the bag and the shooting were done by one X, who, together with M., had been loitering in the vicinity for a few minutes. M. and X made their escape together along the thoroughfare, M. carrying the stolen bag and helping X, who was not so active. X kept back their pursuers by from time to time turning round and threatening them with a revolver. and X ultimately made their escape in a motor-car, which was waiting for them in a nearby street with the engine running. M. and a man who tallied with the description of X had been seen to leave a house in another suburb in company earlier that same morning before the shooting. X was not apprehended. From the effects of the shot B. died. M. was tried for the murder of B and convicted. On application to the Court of Criminal Appeal for leave to appeal against this conviction. Held, that there was ample evidence on which a jury could conclude that M. and X had acted on a preconcerted plan to rob B., using whatever violence might be necessary to effect their purpose and secure their escape, the latter of which objects would have been practically impossible for unarmed men in the circum M. 66 stances of the time and place of the crime. The presiding Judge, in charging the jury, said, after referring to the evidence and to the fact that two men were concerned in the offence, You must first be satisfied beyond reasonable doubt that the accused was one of those men, and if it comes to the point you must 58. satisfied beyond reasonable doubt that those two men set out on a premeditated plan to rob Berriman, and if necessary either for the purpose of getting the money, or for the purpose of making their escape, of robbing him with violence, and with such violence as was necessary to effect their purpose. And if you come to that conclusion, those two men were both equally guilty of murder." Held, that this was a sufficient direction as to the onus of proof, especially as the jury had been repeatedly told, in the addresses of counsel, that the onus was upon the Crown to prove the guilt of the prisoner. The extent to which, if at all, the onus of proof rule, once correctly stated, should, in any particular case, be empasized or enlarged upon, must be left to the discretion of the presiding Judge; he must be guided to a large extent by the whole conduct of the case. In framing his charge to the jury the presiding Judge may have regard to the general conduct of the case and to the addresses of counsel, and every summing up must be regarded in the light of the conduct of the trial and the questions which have been raised by counsel for the prosecution and for the defence respectively. servations of Lord Alverstone, L.C.J. in The King v. Stoddart ([1909] 2 Crim. App. R. 217 at p. 246) applied. Observations on the inadvisability of attempting, in summing up to a jury, to define the words beyond reasonable doubt." There is no rule, nor does the case of R. v. Finch (12 Cr. App. R. 77) lay it down, that where an alibi is set up in defence the Judge must direct the jury that they must be satisfied that that defence is unsound before they convict. A direction that a jury must be satisfied beyond reasonable doubt of the guilt of the accused before they convict is sufficient, whether an alibi is set up or whether the defence is a mere denial of the offence charged. Shorthand notes of the proceedings at the trial, including the charge of the presiding Junge-not taken under the provisions of s. 125 of the Evidence Act, but by an official of the Law Department are to be treated as the Judge's notes, and are subject to his review and correction and to his decision upon any question raised as to what was actually said or done at any stage of the trial. R. v. MURRAY, 1924 V.L.R. 374; 46 A.L.T. 35. [Victoria.] Ob Murder-Competency of jury to find manslaughter-Direction to jury-Crimes Act 1900, s. 23 (2) Evidence Admissibility— Withdrawing evidence from jury-Miscarriage of justice. On a trial for murder a judge is not bound in all cases, as a matter of law, to direct the jury that it is competent for them to find the accused guilty of manslaughter. Each case must depend on its own circumstances. The appellant was convicted on a charge of murdering C. At the trial two defences were relied on, one, that the shot which was fired and caused the death of C. was accidental, the other, that the appellant's mind was so affected by drink at the time of the shooting that he was incapable of, forming an intention to commit murder. The judge directed the jury, inter alia, first, that in all cases of indictment for murder it was open and competent for a jury to find a verdict of manslaughter; but that the jury would only be entitled to find a verdict of manslaughter, and not of the major charge of murder, where the facts proved to their satisfaction entitled them to do so, taking the law applicable to the case, as he would pronounce it to them later. He, later, again told them that if the facts reduced the killing of C. from murder to manslaughter and showed that the killing was manslaughter they could so find. After dealing with the defence of accidental shooting, and stating the law as to when drunkenness justified the reduction of a charge from murder to manslaughter the judge told the jury that if they were satisfied that the appellant fired the revolver at C. and that C. was hit and died in consequence of the injuries received, primarily the appellant was guilty of murder, but that that might be reduced to manslaughter if they thought that his mind was so affected by drink that he was incapable of forming an intention. Held, a good direction. Brown v. The King (17 C.L.R. 570) distinguished. Prior to and immediately before C. was shot F. was also shot by the appellant under similar circumstances. After his arrest the appellant said about F. that "he was my best cobber, we were at the war together." Evidence was tendered to prove that F. had not been to the war, and after objection, was admitted. Afterwards the judge told the jury to discard such evidence from their consideration. Held, that the evidence was rightly admitted. Further that, assuming that it was inadmissible, there had been no miscarriage of justice as the jury had been warned not to act on it. R. v. SIMPSON, 24 S.R. 511; 41 W.N. 159. [New South Wales.] Wilful murder-Accessories after the fact -Presence at the committal of the crime The Criminal Code, ss. 7, 10.-Five aboriginals were charged with wilful murder of another aboriginal. The evidence showed that one of them killed the deceased; three of the other helped to carry off and bury the body; and the fourth was present but took no part in the burial. All then fled to the ranges. Held, that there was no evidence against the four accused other than the actual murderer. R. v. POMPEY, ARTHUR, SULLIVAN, DALEY & COLDWATER, 18 Q.J.P.R. 59. [Queensland.] Manslaughter-Evidence-Death accountable for by reason other than the prisoner's act The Criminal Code, s. 292.-Where, on an indictment for manslaughter, there is evidence that the death of the person killed might have been caused otherwise than by the prisoner's act, the prisoner should be discharged. R. v. BROWN, 18 Q.J.P.R. 58. [Queensland.]. Bigamy Belief of accused that former marriage invalid-Mistake of law-Felonious intent. On a trial for bigamy it was proved for the defence that the accused and his wife were first cousins and Roman Catholics. They never lived together, the accused leaving for active service immediately after the marriage. After his return he saw the priest who had performed the ceremony, and informed him that he and his wife were first cousins, and asked whether the marriage was valid. The priest replied that in the eyes of the Church the marriage was null and void and as though it had never taken place. The accused then honestly believed he was free, and went through the form of marriage with another woman. The trial Judge directed the jury that if the accused intended to be married a second time, his first wife being alive to his knowledge and the first marriage being a lawful marriage, there was a felonious intent. The jury convicted. Held, that this direction was right. Held, also, that the accused had been under no mistake of fact but a mistake of law, and was rightly convicted. R. v. KENNEDY, 1923 S.A.S.R. 183. (South Australia.] Unnatural offences-Attempt or preparation Crimes Act 1908 ss. 93, 442.-G. a lad of sixteen, by accident met accused (to whom he had never before spoken) at 8.15 p.m. in a street in Auckland. Accused handed G. a note inviting him to meet accused next evening at the gates of a park, adding "We can have some good fun if you will." After G. read the note accused asked him to go over with him to an adjoining paddock for five minutes. G. made a pretext of hurrying home, and promised to return that evening. He informed his father, who, with G., went to look for the accused, who had disappeared. Next morning G. received a note through the post from accused in which the latter, after expressing disappointment that G. had not returned to him on the previous night, asked for a meeting at a certain place that evening. G. reported to the police, and on their advice met accused at the appointed time and place. Accused, after ascertaining that G. had received the letter, asked him to go along the road for a walk. Shortly afterwards G. and accused were met by the police, to whom accused gave a false statement as to his intended movements. Accused was indicted on two counts-first, that he did attempt to commit buggery with G.; second, that he did attempt indecently to assault G. The above facts being admitted, as also the fact that on the evening when accused was arrested in company with G. there was no possibility of his actually interfering with G., the jury by direction of the Court (Stringer, J.) returned a formal verdict of guilty on both counts. Held, on appeal, that the accused had been properly convicted of an attempt. Per Sim, J. In order to constitute an attempt within the meaning of s. 93 of the Crimes Act 1908, there must be some 66 |