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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Defazio v Director of Public Prosecutions [2007] EWHC 3529 (Admin) (17 July 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/3529.html Cite as: [2007] EWHC 3529 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		Tuesday, 17 July 2007

1. MR JUSTICE COLLINS: This is an appeal by way of case stated against a decision of a district judge, sitting at Reading, whereby he convicted the appellant of an offence of dishonestly receiving a Barclaycard Visa. The offence alleged occurred between 10 June 2005 and 2 July 2005 at Reading.
2. The circumstances were these. There was no dispute as to the evidence of the prosecution which consisted of Section 9 statements. The appellant himself did not give evidence. The district judge records in the case what the statements established, namely that the victim Mr Parker stated that he had realised the card had gone missing on 10 June 2005. He therefore cancelled his card. The card had been found on 2 July at the appellant's home when the police had attended and searched it and had arrested him on a matter that had nothing to do with the charge with which this appeal is concerned. Mr Parker - the loser - identified the card which had been found in the appellant's bedroom as his and stated that he did not give anybody permission to take it.
3. The magistrate went on to find that the appellant had received the card as it had been found in his possession, and then found as a fact that the appellant knew or believed the card to have been stolen since the victim had not given the card to the appellant and the details on the card showed that it belonged to the victim.
4. The appellant in his interview said that he had found the card outside a cafe in Knowle Hill (Knowle Hill, I think, being in Maidenhead) and had picked it up with a view to handing it in but had put it in a drawer in his bedroom and had forgotten about it. The magistrate went on to say he found that the appellant was dishonest in that the card was in his possession, despite him having ample opportunity to hand it to a bank or to the police, and further by placing it in the drawer. He did not accept the appellant had intended to hand it into anybody.
5. The card itself had not been used by anyone since it had been lost by Mr Parker. I use the word "lost" advisedly because we have annexed to the case the relevant statements.
6. Mr Parker's statement states that this was one of a number of cards that he had, some of which he kept in his wallet and some of which he kept in a safe in case he lost his wallet. This one he kept with him because he used it for his day-to-day minor expenses. He noticed it was missing on 10 June because it had been in his wallet before and it was not when he went to look for it.
7. The appellant, when interviewed, was asked when he had found it. He said effectively that he could not remember precisely. He found it in the presence of his uncle when he had been outside the relevant cafe. It was just at the bottom of the steps. He put it in his drawer and had forgotten about it. That was the material evidence that was before the district judge.
8. It was suggested that the fact Mr Parker had not said that the card had been stolen or that anyone had deliberately taken it shows it was not stolen. That is, of course, quite wrong. All that the loser could say - and all that many losers can say in circumstances such as this - is that something belonging to him had gone missing.
9. One then has to look to see what the circumstances were to decide whether there was sufficient evidence to show that it was stolen. The charge here was not theft but receiving. That pre-supposes, on the face of it, that the card had been stolen by the time it came into the appellant's possession. There was no evidence before the district judge that would justify that conclusion, having regard to the fact that it was a single card from a wallet containing a number of cards which had gone missing. I would have thought that was, on its face, more consistent with the card having been dropped when he was taking, perhaps, something else out of his wallet rather than the card itself having been stolen; or possibly when he had used it he had left it and had not retrieved it when he ought to have done. Whatever may be the circumstances, to suggest that when he received it the appellant must have known or believed that it was stolen as opposed to having been mislaid is to assume too much against the appellant. It seems to me that it would be quite impossible in those circumstances to be sure that the appellant knew or believed it was stolen when it came into his possession.
10. The fact is that it would be possible for him to have been guilty of theft if he found it and decided to keep it to make use of it dishonestly. The mere keeping of it could, in certain circumstances, suffice to show sufficient dishonesty. The fact is here that not only was there, in my judgment, no sufficient evidence that it was stolen when it came into the possession of the appellant, but he did not in fact use it during the period of time - which could have been up to about a month - during which he was in possession of it. There really was insufficient evidence, in my judgment, to entitle the district judge to draw the inference that he was acting dishonestly and that he was guilty of receiving stolen goods.
11. In those circumstances I am satisfied that the conviction is unsafe and that - as a matter of law - the district judge was not entitled, on the evidence before him, to draw the conclusions that he did.
12. The questions that the district judge asks are: (1) Was I right to find that the evidence before me was sufficient to find that the said card was stolen? The answer to that is, in my judgment, no. (2) Was I right to find the appellant be dishonest even though the said card had not been used since it went missing? Again, I would answer that no.
13. In those circumstances I would allow this appeal and quash the conviction.
14. LORD JUSTICE AULD: I agree. The appeal should be allowed and the conviction should be quashed for the reasons given by my Lord. Mr Phillips, do you have an application?
15. MR PHILLIPS: My client was in receipt of a representation order in this matter, so I do not think there is any issue as to costs.
16. MR JUSTICE COLLINS: Should you not apply for costs out of central funds?
17. LORD JUSTICE AULD: To apply for costs out of central funds.
18. MR PHILLIPS: Yes, indeed. I make an application.
19. LORD JUSTICE AULD: Whatever burden falls on your lay client, a representation order will be met in that way.
20. MR PHILLIPS: Yes.
21. LORD JUSTICE AULD: There will be an order for payment out of central funds.