Rostron & Anor, R. v [2003] EWCA Crim 2206

Case No 200202834/2835/Z5[2003] EWCA Crim 2206
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 16th July 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE MANTELL
MR JUSTICE JACK
SIR RICHARD ROUGIER
Between
R E G I N ACrown-v-
Between
TERRY ROSTRON AND JOHN MARK COLLINSON
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS M PINKUS AND MRS S PONTAC appeared for APPELLANTSMISS K HARGREAVES appeared for CROWN
J U D G M E N T

LORD JUSTICE MANTELL:

Some

[1]time between midnight and 1 o'clock in the morning on 30th August 2001 a burglar alarm went off at Whetstone golf club in Leicestershire. It was not the sort of burglar alarm which can be heard in the neighbourhood, but one which connected with the police station, and as a result, police officers arrived at the club to find on cursory examination, that it did not appear that the club house itself had been interfered with. However, on looking around, they found in the car park to the golf club, not too distant from the club house, two men dressed in frogman, or diving suits, and in possession of a sack, it can be described in no other way, of very wet golf balls.[2]Whetstone is a golf club which has in various places, or certainly in one place at any rate, a stretch of water which is either there as an ornament to the course or to provide a hazard for players. Unsurprisingly, perhaps, from time to time golf balls are driven into the water, or in the case of some of us it would be perhaps more accurate to say nudged into the water, where they are left, as it was accepted at a later stage, for them to be retrieved by others; the players themselves having no interest in wading in after their lost property.[3]It turned out that the golf balls in the possession of the two men had been recovered from one of the water hazards, or lakes, on the Whetstone course. The two men were to say however, when first confronted by the police, that they had been taken from another course in Lancashire, which, as we all know, is some distance from Leicestershire and the explanation hardly compatible with the condition in which the golf balls were found. The two men were none other than the appellants in this case, Terry Rostron and John Mark Collinson.[4]On the basis of what the police discovered, and the responses which they received in the course of interviews, both Rostron and Collinson were charged with, first of all, theft of the golf balls and, secondly, going equipped for theft. They stood their trial on those two charges at the Crown Court in Leicester in April last year. Presiding over the proceedings was His Honour Judge Bray. After what was a relatively short trial, we are told the evidence lasted no longer than a day and the trial itself concluded on the second day, both men were convicted on both counts.[5]One of them, Collinson, received an immediate prison sentence and the other, Rostron, a community penalty. Collinson appealed against his sentence. That hearing took place on 20th May 2002, presumably heard as a matter of urgency, and the appeal succeeded to the extent that the prison sentence was quashed and a community sentence imposed in its place. The details of the sentences are immaterial for present purposes.[6]Further, by way of background we ought to say that it appears that there is a considerable trade in golf balls recovered in this way, and that they are, so it seems from the evidence given in the case, known generally as "lake balls". No doubt in many instances that trade is carried on quite legitimately. Indeed we are told there are companies with very considerable turnovers who deal in what are termed lake balls and one can imagine all sorts of ways in which such property could come on to the market without any prior offence having been committed. Be that as it may and returning to the present case.[7]Both Rostron and Collinson now have leave from the single judge to pursue an appeal against conviction. The arguments presented on behalf of both of them are much the same. It is said, first of all, that the golf balls, having been abandoned by their original owners, as it was accepted they had been, the removal of them by the appellants could not amount to the offence of theft. If no one other than the two appellants had any claim to possession to them at the time, that proposition must be right. Secondly, it is said that even if the club or its members had an interest in the golf sufficient to support a charge of theft, nevertheless the direction which the learned judge gave with regard to the necessary mental element of the offence was insufficient.[8]The first submission is that there was here no sufficient evidence that the golf balls had passed into the control of the club, or its members. It is certainly true, as appears from the summing-up and other material before the court, that there were no notices posted at the golf club in question, either forbidding person from leaving the public path ways which cross the course and walking on to the playing area, or directly indicating that any property found on the golf course was that of the club itself, or its members.[9]However, in the course of presenting its case the prosecution called, amongst others, the club professional, who we learn from the summing-up had been holding that position for something like 30 years. This is how his evidence was described by the learned

judge in summing up to the jury:

"The prosecution case, as you know, is based on the evidence of the golf club professional. He has been there 30 years and can be presumed to know the rules of the club. His evidence was that, under the rules or the practice that was carried out on the course, if you cannot find your ball because you have driven it into the lake, for example, you have had your five minutes to look for it and you cannot find it, not surprisingly, you are deemed to have surrendered it to the club, and so it becomes the property of the club. Of course, as the golf professional said to you, if you find somebody else's ball conveniently on the course, the club do not mind if you pick that up and use it as your own. Because you are there legitimately on the course, you have paid your sub or you have paid your money for the day and you are legitimately playing golf. But it is a quite different matter if you are on the course, walking the course, and you are not playing golf and have no permission to be there. Then there is no licence, he said, for you to pick up a ball and appropriate it, as the lawyers call it. So, much then for the ownership point."
That, of course, is only a reference to the way in which the prosecution case was presented.[10]The judge also referred to the defence's response. "The defence ... say ... that the golf balls did not belong to the golf club; that they had been abandoned by the golfers and therefore the defendants were perfectly entitled to go in and pick them up and treat them as their own to sell to others." That, indeed, was the defence presented, supported not only by evidence from the defendants themselves, but by others who were called on their behalf.[11]Of course, in order to bring home a charge of theft the Crown had to establish that gold balls were in the terms of section 1 of the Theft Act "property belonging to another", and property belonging to another as further defined by section 5:
"Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest)."
[12]So the first question for the jury was correctly identified by counsel appearing in this appeal, as being one of whether or not there was here property capable of being stolen. If there was not then, without reference to the state of mind of either appellant, there could be no offence of theft.[13]To help determine that question we have been helpfully referred to the case of Hibbert and McKiernon [1948] 2 KB 162, a decision of the Divisional Court presided over by the then Lord Chief Justice, Lord Goddard, and consisting otherwise of Humphreys and Pritchard JJ. That was a case on not dissimilar facts where someone had been charged and convicted by the justices of stealing golf balls from Reddish Vale Golf Club, a course near to Stockport in Cheshire, or what would now be Greater Manchester. Both the Crown before the learned judge and counsel appearing on behalf of the appellants have relied on that case because in the course of it reference is made on the particular facts obtaining there to notices which had been posted as clear evidence of an intention on the part of the club to exclude trespassers and, in particular, to exclude anyone who might choose to come on to the course with a view to finding and taking abandoned golf balls.[14]However as it appears to this court, Humphreys J in the course of his short judgment quite correctly posed what he saw as:
"The simple question in the case ... Was there evidence to justify the conviction for theft of those balls by the appellant?"
That also seems to us to be the first and central question to be answered in the present case.[15]We have referred to the evidence of which the learned judge thought fit to remind the jury, and, as it seems to us, that was sufficient not only to justify the rejection of the submission of no case to answer, but was also such as would entitle the jury to reach the conclusion that it did.[16]It is perhaps interesting, although by the way, to remind ourselves of what was said by Potter LJ in giving the judgment of the Court in the appeal of the appellant Collinson against sentence. He said in passing:
"One must observe at this stage that it is difficult to see how the appellant could genuinely have believed the golf balls had been abandoned. No doubt they had been abandoned by their original owner, but as every law student learns when studying the criminal law, on the authority of a well-known case called Hibbert and McKiernon, for the purposes of theft the owners of a golf courses are regarded as having the property and control of lost balls for their own purposes."
[17]That as a general proposition would seem to the members of this Court to be correct. Of course we are at pains to point out that every case of this kind must depend on its own facts and the prior question to be asked and answered is the one identified by Humphreys J, is there evidence to justify the finding that the property as defined by the Theft Act in these golf balls belonged to the club? It seems to us that with regard to the first point the directions given by the learned judge were perfectly correct. That point fails.[18]The second ground of appeal is that the learned judge failed to give what is sometimes termed a Ghosh,(1982) 75 Cr App R 154, direction. A Ghosh direction is such as may be necessary where it is said on behalf of an defendant accused of theft, or indeed of any other form of dishonesty, that he believed he was entitled to do what he did. Then the question may arise whether or not he truly held that belief and whether he would have considered that other reasonable persons in the same position might have been of the same mind.[19]Here the learned judge chose to give a simple, straightforward, clear and fair direction; indeed, on one view, a direction which was more favourable than it needed to be to each of these appellants. He told the jury in terms that the prosecution had to prove that the defendant whose case was being considered knew that he was not entitled to go on to the golf course and remove golf balls. If that was established, then the necessary element of dishonesty had been proved, and, of course, if that were the case it would matter not what other people might think, because he could not in such circumstances have had an honest belief that he was entitled to do what he did. So the second ground of appeal also fails in our judgment.[20]Accordingly both appeals stand dismissed.[21]We should not, however, leave this interesting case without, first of all, paying tribute to the skilful arguments of both counsel, who have presented the appeals on behalf of their respective clients, Miss Pinkus and Mrs Pontac, and they must not be too disappointed that those arguments did not succeed, but perhaps, more importantly, without paying tribute to the learned judge whose summing-up in this case, in our estimation, had the combined merits of brevity, clarity and fairness and for short criminal trials could well prove a model to others.

Cited in 2 later judgments