Toleikis, R. v [2013] EWCA Crim 600

[2013] EWCA Crim 600Case No 201203762/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 8th March 2013
Strand
London, WC2A 2LL
B e f o r e:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR JOHN THOMAS)
MRS JUSTICE SWIFT DBE
MR JUSTICE CRANSTON
Between
R E G I N ACrownv
Between
DONALD TOLEIKIS
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr M Florida-James appeared for AppellantMr M Williams appeared for Crown
J U D G M E N T
[1]PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 8th June 2012 the appellant was convicted of handling stolen goods in the Crown Court at Southampton before Mr Recorder Alistair Malcolm QC and a jury. He was given bail. He then absconded. He was sentenced in his absence on 31st August 2012 to two-and-a-half years' imprisonment. He was eventually found and arrested and on 22nd February 2013. He was brought before the court and given 2 months imprisonment consecutive for failing to surrender. There is no appeal against sentence before this court. This court is purely concerned with the circumstances of his conviction, on which he appeals on the basis of the information before the single judge.[2]The facts are relatively straightforward. As is well known householders are asked to put out clothes they no longer use for collection by organisations acting on behalf of charities or charities themselves. In this particular case there was an organisation called Clothes Aid. It is a commercial organisation which assists charities and franchises some of its operations to others. It puts out and collects bags which bear the logo "Clothes Aid". Each bag is printed with the following:
"The contents of this bag having been given by the householder are the property of Clothes Aid who is fundraising for the NSPCC. Only authorised Clothes Aid collectors are permitted by the NSPCC to collect this bag. If you are not authorised by Clothes Aid or the NSPCC to remove this bag and/or its contents you are committing a criminal offence and may be prosecuted."
[3]Householders having received these bags from Clothes Aid would put their clothes into them and leave them outside the house. They would then be collected. Clothes Aid has a system to authorise collectors as the statement on the bags makes clear.[4]The appellant is a Lithuanian national who had been resident within the United Kingdom since about 2006. On 11th April 2011 the appellant and a person who appears to have been employed by him and who was his co-defendant at the trial, were seen in an industrial estate in Eastleigh, Hampshire. They were in a hired van which the employee was driving.[5]The police were present on that occasion because one of those who had a franchise for Clothes Aid had asked the police to look at a unit on the industrial estate where there were two containers which were thought to have a very large number of bags of clothing. We are told that in fact the amount of bags that were in the two containers amounted to some 10 tons of clothes and about 7.5 tons of those were in bags which originated from Clothes Aid.[6]The police searched the van and found plastic bags full of clothing. Some had the NSPCC logo on them and the statement which we have set out. The appellant’s house was then searched and more items were found, which showed his involvement. He said that this was a legitimate operation to collect used clothes. The Crown subsequently contended that he was actively engaged with others to collect goods that had been deposited in such bags and he dishonestly handled them prior to their disposal. He was arrested and subsequently indicted on an indictment which charged the appellant and his co-defendant that they:
"... on the 11th day of April 2011 dishonestly undertook or assisted in the retention, removal, disposal or realisation of stolen goods, namely clothing of a value unknown, belonging to Clothes Aid, by or for the benefit of another or dishonestly arranged so to do, knowing or believing the same to be stolen."
[7]In answer to that indictment it was the appellant's case that he was employed by a man call Tuckus to collect clothes before being shipped to Poland. He thought Tuckus had secondhand clothing shops and that the proceeds would be distributed for charitable purposes. There was some paperwork which he said bore out his account.[8]The case before the jury essentially turned on the question of whether what he was doing was the legitimate business operated by Tuckus or the dishonest activity alleged by the Crown. The jury convicted him and there can be no doubt, as is accepted by his counsel, Mr Florida-James, in this court, that the jury must have rejected his story that he was acting for a man called Tuckus and that he was therefore engaged in a manner, which we shall describe in a moment, in a dishonest activity.[9]But as Mr Florida-James says, it is not enough that a man behaves dishonestly; the Crown must prove what they charge in the indictment. He accepts that the points that he takes are points purely in relation to the way in which the Crown formulated the case and to which it adhered in the course of the evidence. He submits, first, that the way in which the evidence eventuated showed that, as no serious challenge was made to the appellant's evidence, namely that he leafleted households and either collected himself or arranged for the collection, that he was essentially, if the jury disbelieved his story, a fraudster. But he was not charged with an offence of fraud. Secondly, he says, that as regards the way in which the indictment was drafted, that to specify the goods belonged to Clothes Aid was an averment that the Crown should not have made, because they could not prove the clothes belonged to Clothes Aid. Thirdly, he says that in respect of the goods that were found in the van, in contradistinction to the goods that were found elsewhere, it was clear that the Crown would have great difficulty in proving that they were not being handled in the course of theft. He put his submissions essentially therefore on two bases. First, that at the end of the Crown's case the judge should have acceded to a submission of no case to answer; essentially on the basis that the Crown had made an averment in the indictment that the goods belonged to Clothes Aid and they could not prove it, or alternatively, that in respect of the goods that were in the van, the Crown could not prove that they had not been handled in the course of theft. In the second way in which he puts his submissions, he relies on the way in which the judge directed the jury. He says that the judge misdirected the jury on a number of points and what the judge should have done, after the evidence that had been given by the appellant and his co-defendant, was to have added to the indictment a count that dealt with the case on the basis that the goods had been obtained by fraud, and secondly, that there ought to have been a separate count relating to the goods in the van. The issues therefore can be considered under two headings.[10](1) The question of the goods belonging to Clothes Aid.[11]It is accepted by the Crown and by Mr Florida-James that it was wholly unnecessary to have put in the words "belonging to Clothes Aid". If the Crown had put "belonging to another person" there would have been no problem. We do not think however that the fact the Crown attributed the ownership of the goods to "Clothes Aid" in any way impairs the validity of the indictment or the conviction. In the first place, it seems difficult to conclude that it was a material averment. More importantly, it is clear, in our view, that on the facts of this particular case (and each case must be judged on its facts) that given what was stated on the bag, those that were putting clothes into the bag must have appreciated that they were delivering the goods into the possession of Clothes Aid. It is clear in the classic and seminal work on personal property (Crossley Vaines on Personal Property, 5th Edition (1973)) that a gift can be completed by delivery:
"Delivery of possession of the subject matter by the donor to the donee, with the intention to give is a valid and irrevocable mode of gift."
It seems to us that that is what applied on the precise facts of the instant case.[12]There is a decision of the Divisional Court in R v (on the application of) Ricketts v Basildon Magistrates' Court [2010] EWHC 2358 (Admin)which dealt with the position of clothes left outside a charity shop. That is a very different circumstance to that which applies in this case. It is not necessary for us to say any more about that case in that the facts were completely different. Whether it was correctly decided or not is not a matter on which we have heard submissions or we need to consider further.[13]It seems to us that the argument based upon the contention that the Crown had failed to prove that the goods belong to Clothes Aid fails, but in any event the averment was not material. (2) The direction on fraud and the failure to add further counts to the indictment[14]We turn to the question of the judge's direction in his summing-up and to the contention that has been advanced that other counts should have been added to the indictment. We take the points together because they essentially turn on the same issue.[15]It is clear from what we have already said, that we must look at the reality of what happened. First, there were some 7.5 tons of clothing that could be attributed to Clothes Aid that were already in containers on the industrial estate. It is inconceivable, as is conceded by Mr Florida-James, that those could all have been collected on a single day; that in respect of those particular goods, it is impossible to contend that they were being handled in the course of theft. It may be said that of course the position, as we have already observed, would be different in the case of the goods in the van being driven by the co-defendant, but it is clear that the overwhelming amount of the goods covered by this indictment cannot have been handled in the course of theft. They were in containers having been obtained some considerable period of time before. So we consider that the argument that depends upon saying that the clothes were still in the course of being stolen must fail in respect of the overwhelming majority of them.[16]We turn then to the issue that has been advanced by Mr Florida-James, namely that the judge should have either added to the indictment a count in relation to fraud, or alternatively should have directed the jury differently in relation to the indictment as it stood.[17]The position that faced the Crown was as follows. In the course of the investigations made by the Crown and in the course of the short evidence called by the Crown, it was by no means clear to the Crown, that the account subsequently given by the appellant, namely that he had been putting leaflets out and had then either collected himself or got others to collect the bags was the case that he would put. It is accepted by the Crown, as the judge had indicated in the course of the submission of no case to answer, that the judge said he would consider an amendment to the indictment at the end of the evidence. It then crossed the mind of counsel for the Crown to amend the indictment to include a charge of fraud. However, in the record of the discussion we have before the judge, counsel unfortunately told the judge he was considering adding a count of theft. This was, we are told and accept, a slip of the tongue; he meant a count of fraud. When Mr Florida-James said he did not want the count of theft added, it is difficult to see how Mr Florida-James can now be precluded therefore from saying in this court that the appropriate course would have to be add a count of fraud.[18]Nonetheless, we take the view that there was nothing that prevented the judge from leaving the case to the jury as it was put in the indictment. In essence and in reality, even if the account of the appellant was one that was to be accepted, it was a case where what the appellant was doing at the time that he was apprehended was being engaged in the operation of storing and preparing for shipment this large quantity of clothing. The indictment and the charge, in our view, properly reflected the criminality of the conduct in which he was then engaged.[19]Therefore, we cannot accept the argument advanced that a further count should have been added to the indictment. As is clear from authorities in cases of this kind, it is really important to keep the issue for the jury as straightforward as possible. Provided that the offence on the indictment properly reflected the criminality, the issue in the case for the jury was essentially: did they accept the case put forward by the Crown that in dealing with the goods in the way he did, was he acting dishonestly or, as he contended, honestly because of what he had told by Mr Tuckus?[20]We then turn to consider the criticisms made of the direction to the jury. The judge, after a discussion prior to the summing-up, produced some written directions. It is unfortunate that if issues arose in relation to those directions, they were not more properly gone into. But the one direction that is specifically complained about is the direction given in respect of the definition of stolen goods. After explaining how goods could be stolen,

the judge went on to say:

"The law says that goods that have been obtained by fraud are also to be treated as far as handling is concerned as stolen goods. And an example of fraud is fraud by false representations. What does that mean? That means if a householder is deceived into thinking that clothes he is putting out to be collected are going to be collected by Clothes Aid, and by so doing the NSPCC is going to be benefiting, when in fact the person taking the bags is acting dishonestly, and is taking the clothes for his or someone else's profit, and not for Clothes Aid or benefit anyway the NSPCC. That again is an example, but goods taken in that way become stolen goods as far as the handling is concerned."
[21]It seems to us that it is difficult to criticise the judge's attempt to explain, in accordance with the provisions of the Theft Act, that stolen goods could also be goods obtained in the way described.[22]The real complaint of Mr Florida-James goes back to his point that the indictment should have reflected the true criminality which he puts forward, namely on the appellant's account, if it was disbelieved as regards to the person for whom he was acting, that what he was doing was obtaining these goods by false representation.[23]As we have already said, we cannot accept that that reflected the reality of the criminality of the events with which he was charged. It seems to us therefore, that as there was no deficiency in the direction given to the jury and as the indictment reflected the criminality of what was involved, the arguments put forward by Mr Florida-James, attractively though they have been presented to us both orally and in the short submissions we have heard today, must fail.[24]This appeal falls to be dismissed.