The People (Attorney-Gereral) v Berber and Levey

• Jurisdiction: Ireland
• Judgment Date: 06 July 1944
• Date: 06 July 1944
• Court: Court of Criminal Appeal

Court of Criminal Appeal.

The People (Attorney-General) v. Berber and Levey

THE PEOPLE (at the Suit of the Attorney-General)

and

MAX BERBER and JOSEPH LEVEY (1)

Criminal law - Appeal - Conviction for receiving stolen goods - Explanation as to how accused obtained goods - Instructions given by trial Judge to jury - To acquit "if explanation might reasonably be true" - To convict "if explanation might not reasonably be true" - Inconsistent instructions - Ordinary prudence not a test of guilty knowledge - Onus of proof - Offences under Emergency Powers Act, 1939 (No. 28 of 1939), s. 5 as amended by Emergency Powers (Continuance and Amendment) Act, 1942 (No. 19 of1942), s. 8 - Obtaining rationed goods from a non-trader - Requisite coupons not surrendered - Form of indictment - Objection thereto - Evidence of accomplice - Insufficiency of warning given by trial Judge as to acting upon such evidence - No miscarriage of justice involved - Conviction confirmed without deciding the validity of objection to form of indictment - Courts of Justice Act, 1928 (No. 15 of 1928), s. 5, sub-s. 1 (a).

Criminal Appeal.

Max Berber was the proprietor of the Lotts Clothing Company, a firm that dealt in textiles. Joseph Levey was the manager of the company. They were tried in the Dublin Circuit Court on an indictment containing twenty-one counts.

Berber was found guilty on eight counts of receiving stolen goods contrary to s. 33, sub-s. 1, of the Larceny Act, 1916, and guilty on eight counts of offences under, s. 5 of the Emergency Powers Act, 1939 as amended by s. 8 of the Emergency Powers Act, 1942, in respect of the same goods.

Levey was found guilty on five counts of receiving stolen goods and guilty on five counts of aiding and abetting Berber in the commission of offences against the Emergency Powers Acts.

The goods in question were bought from a man named Smith who was the chief witness for the prosecution. The accused had given an explanation of how they bought the goods from Smith, believing that he had got them honestly. The trial Judge told the jury that if this explanation might reasonably be true they ought to acquit the accused on the receiving charges. He then went on to tell them that if the explanation might not reasonably be true, it would be their duty to convict.

The offences under the Emergency Powers Acts with which Berber was charged were set out in the following form in the indictment:—

"Statement of Offence.

Being a trader unlawfully obtaining within the State a rationed article otherwise than under and in accordance with the Emergency Powers (General Rationing Provisions) Order, 1942 and the Emergency Powers (Rationing of Yarn Cloth and Clothing) Order, 1942 as amended by the Emergency Powers (Rationing of Yarn Cloth and Clothing) Order, 1942 (First Amendment) Order, 1942, in contravention of article 5 (a) of the Emergency Powers (General Rationing Provisions) Order, 1942, contrary to s. 5 of the Emergency Powers Act, 1939 as amended by s. 8 of the Emergency Powers (Continuance and Amendment) Act, 1942.

Partioulars of Offence.

Max Berber, on the ----- day of ----- 1942, in the City of Dublin, being a trader, obtained a rationed article, namely, -------- from Patrick Joseph Smith who was not a trader and without surrendering to the said Patrick Joseph Smith the appropriate number of appropriate coupons or a ration document authorising the obtaining of a quantity of such rationed article equal to the quantity so obtained." [The dates and the articles varied in each count.].

The charges against Levey of aiding and abetting Berber followed the same form with the necessary modifications.

The trial Judge sentenced Berber to six months imprisonment without hard labour on each of the eight counts of receiving stolen goods on which he had been found guilty, the sentences to run concurrently, and imposed a fine of £100 on each of the counts under the Emergency Powers Acts of which he had been found guilty.

He sentenced Levey to four months imprisonment with hard labour on each of the five counts of receiving stolen goods of which he had been convicted, the sentences to run concurrently, and imposed a fine of £50 on each of the five counts under the Emergency Powers Acts of which he had been convicted.

He refused the application of counsel for the accused for a certificate for leave to appeal. The accused applied to the Court of Criminal Appeal for leave to appeal.

The grounds of the application were as follows:—

"1 That there was no evidence, or, alternatively, no sufficient evidence, to support the verdict and finding of the jury on the counts on which the accused respectively were found guilty, and that the trial Judge should have withdrawn the case from the jury.

2. That the trial Judge misdirected the jury as to the tests to be...