R v Dockery and Brown

• Jurisdiction: Jamaica
• Judge: Lewis, J.
• Judgment Date: 25 March 1963
• Neutral Citation: JM 1963 CA 1
• Court: Court of Appeal (Jamaica)
• Date: 25 March 1963
• Docket Number: Nos.182 & 183

Court of Appeal

Lewis, J.

Nos.182 & 183

R.

and

Dockery and Brown

Appearances

Mr.Dennis for the appellant Dockery

Mr.Haughton for the appellant Brown

Mr.Churchill Raymond for the Crown.

Criminal Law - Forgery — No misdirections found — Appeal against conviction dismissed

Lewis, J.

1 The appellant Dockery was charged on the third count of an Indictment containing nine counts, with having the 12 ^th December, 1961 uttered a forged order for goods upon S.P. Musson and Co.Ltd., for the delivery of 50 bags of flour, and both appellants were charged on the fourth count with obtaining the flour by virtue of said forged order. They were also charged jointly on count 6, with having on the 27 ^th December, 1961, obtained form H.M. Brandon and Co.Ltd.25 boxes of soap, by virtue of a forged order. On count 8, Dockery was charged wit uttering on the 2 ^nd January, 1962, a forged order upon H.M.Brandon Co.Ltd. for the delivery of 50 boxes of soap; and both appellants were charged on count 9 with obtaining the soap by virtue of the said forged order. Guilty knowledge of the falsity of the orders was an ingredient of all these counts.

2 At the conclusion of the summing up, the jury on the direction of the trial judge, returned a verdict of ‘not guilty’ on count 3. After deliberation they acquitted both appellants on count 4, and returned vehicles of ‘guilty’ on counts 6, 8 and 9. These appeals are against their conviction on these counts.

3 The principle witness for the prosecution on all was one Dixon, the driver of a motor truck belonging to one Creary. His evidence disclosed a pattern followed on each of the three occasions.Dockery, accompanied by Brown, hired the truck from Creary; Dixon drove them to the business of the firm from which goods were to be obtained; Dockery went inside while Brown waited on Dockery's return to the truck, delivery of the goods was made, in the case of the flour at one of the docks, and in the other case at the firm's premises. On all three occasions Dockery and Brown loaded the goods into the truck; they were then conveyed to the shop of a Chinese merchant in Pink Lane where Dixon, after receiving payment, left the appellants. In this way Dixon said that he witnessed delivery from the dock of the 50 bags of flour on the 12 ^th December, and form Brandon & Co.'s premises in Gold Street of 25 boxes of Tide Soap on the 27 ^th December, 1962. He did not however, see Dockery with any of the forged orders, nor did he witness the uttering. There was no evidence to identify Dockery as the person who uttered the forged order at Muson's and as stated above the trial judge directed the jury to return a verdict of acquittal on count 3 which related to that order.

4 We have referred to counts 3 and 4 because it was a ground of appeal by both appellants that their conviction on counts 6 and 9 which related to obtaining Tide from Brandon and Co. was inconsistent with their acquittal on count 4, and that the convictions should be quashed on that ground. It was submitted that the acquittal on count 4 indicated that the jury must have rejected the evidence of Dixon; that this evidence, apart from the rather inconclusive evidence of one Vernon Castle to which we shall refer in greater detail later, was the only evidence on the obtaining counts, and that they ought therefore to have acquitted on counts 6 and 9. In our opinion counts 3 and 4 were so inextricably connected that failure to prove that Dockery had uttered a forged document involved a failure to prove knowledge of the falsity of the document and that the jury were right in acquitting on count 4, since knowledge of the falsity was an ingredient of both offences.Further, it appears form the evidence of Det.Sgt. Weir that certain statements alleged to have been made by the appellants, either before or after their arrest and which, if accepted by the jury, amounted to confession, related only to the transaction charged in count 6 and 9, and upon these confessions the jury were entitled to act.

5 We think that the verdict on count 4 is no indication of the jury's assessment of Dixon's evidence, to which they must have attached great weight. This ground of appeal also fails.

6 The next ground appeal concerned the evidence of Dixon, who it was submitted, was a witness whom the jury might properly have regarded as an accomplice. First it was said that although the learned trial judge left to the jury the question whether Dixon was an accomplice or not, and gave them the classic warning as to the need for corroboration of his evidence if they found that he was an accomplice, he negatived this warning by telling them that the suggestion that Dixon was an accomplice was “perhaps not seriously put forward by any of the parties in this trial”.This, it was urged, went far beyond the mere expression of opinion as to facts and in effect ursurped the functions of the jury to decide the question left to them as well as obstructed the adequate presentation of the defence. In our opinion this was a comment, which the learned judge was entitled to make, and does not amount to a misdirection. While Dixon clearly was at pains during the trial to dissociate himself form any connection with the fraudulent transactions other than as an employee carrying out his employer's orders, and while he may have been evasive in certain answers, thus giving rise to a suspicion in the minds of the jury as to the real part which he may have played, there was in fact very little, if any, evidence to go to the jury on the question of “an accomplice vel non”, and the trial judge, it would seem, left the issue to the jury merely out of an abundance of caution.The comment to which objection has been taken to us to be merely an expression of the judge's own opinion and in no way detracted from the function of the jury to give full consideration to a question which was left to them in the amplest terms.

7 It was further submitted that the learned judge ought to have indicated to the jury the portions of evidence, if any, which are capable of amounting to corroboration if accepted by the jury. Here it would seem that learned Counsel for the appellants seek to have the best of both worlds, for while conceding that the only evidence which the jury were likely to consider was the confessions of the appellants and the deposition of Castle, they at the same time urged, as will later be seen, that both these portions of evidence were inadmissible and should have been excluded by the judge. Reliance was placed upon the recent case R. v. Goddard, (1962) 3 ALL E.R.582, in which Lord Parker C.J. in delivering the judgment of the Court of Criminal Appeal referred to the well known observations of Byrne J.in R. v. Zielinski, 34 Cr.App.R.193 and then said, at p.586.

“It is only right to say that, in the experience of this court, that principle is seldom followed; indeed, if it is to be treated as a general principle applicable to all cases of corroboration, this court feels that it goes too far. Quite clearly, it is idle to give that direction simpliciter in a case where in fact there is no evidence capable to amounting to corroboration, because the very fact that the direction is given would leave the jury to infer that there was some evidence capable of amounting to corroboration, if they looked for it.Equally, in a case, as in many sexual cases, where there is a danger that the jury will treat as corroboration, something which is incapable of being corroboration there must be a duty on the judge to explain to the jury what is not corroboration as, for example, a complaint made by the complainant. In the general run of cases, where there is evidence amounting to corroboration, the duty of the case, bearing in mind that he certainly would not be expected to refer to every piece of evidence which is capable of amounting to corroboration but, in general, in the judgment of this court he should give a broad indication of the sort of evidence which the jury, if they accept it, may treat as corroboration.”

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