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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> R v Collis-Smith [1971] EWCA Crim 1 (30 September 1971) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1971/1.html Cite as: [1971] EWCA Crim 1, [1971] Crim LR 716

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice.
		30th September. 1971.

MR. JUSTICE CUSACK: On 26th May, 1971, this Appellant, Andrew Collis-Smith, was convicted at Warwickshire Quarter Sessions of an offence under s. 15(1) of the Theft Act, 1968. It is of importance, for reasons that will appear later, to have regard to the wording of the count in the indictment upon which he was convicted. The count in the indictment reads as follows: he was charged with "obtaining property by deception contrary to Section 15(1) of the Theft Act 1968 for that you on the 24^th February 1971, in the County of Warwick dishonestly obtained from William Arthur Snell 6 gallons of petrol with the intention of permanently depriving William Arthur Snell of the said petrol, by deception, namely false oral representation that you, Andrew David Collis-Smith, was authorised to draw petrol for your private motor car on the account of your employer, James Paper Sacks Limited."

The facts of the matter were that on 24th February the Appellant drove his motor car into the forecourt of the Orchard Garage at Bedworth, which was owned by the Mr. Snell referred to in the indictment, and his son, and he asked the petrol pump attendant for some petrol. The attendant was a Mrs. Donoghue, and he asked for six gallons of petrol. According to the evidence as it emerged in the case, she put that petrol into his car and she then asked if he was paying for it. The order of events ig of importance. When she asked if he was paying for it, he said it was to be booked to his firm, as he had the use of the car for business. He then went into the office, followed by another attendant, whom he told the petrol was for James Paper Sacks Limited, and she duly entered it on the file containing the account of that particular company. In addition, he told her to book the petrol down to a mini-bus, to which he gave the reference number, which belonged to the company, and that was done.

He now appeals against conviction, the substantial point at issue being set out in the Notice of Appeal and argued in this form. It can be summarised in this way, that the point at issue was this: that on the facts as they appear in this particular case, no false representation was made until after the petrol had been obtained. A submission to that effect was made to the learned Judge at the time, but rejected by him; it is now submitted that he ought to have acceeded to that submission and to have withdrawn the case from the jury.

In that situation, it is necessary to look in a little more detail at the wording of Section 15 of the Theft Act. The first subsection reads as follows: "A person who by any deception dishonestly obtains property belonging to another with the intention of permanently depriving the other of it shall on conviction ..." be liable to certain punishment. It appears from that subsection that the order of events, if a conviction is to be obtained, is that there should be the deception, which operated upon the mind of the person to whom it was directed, and that by reason of that deception the obtaining took place. The Act contains its own definition of the word "obtaining", which is to be found in subsection (2) of Section 15. That reads as follows: "For the purposes of this Section, a person is to be treated as obtaining property if he obtains ownership, possession or control.." I need not read further of that definition, because it is of no application to this ease, but it appears to this Court that those words "ownership, possession or control" must clearly show alternatives. It has been submitted in argument on behalf of the Crown that there may be a transaction as it were in two stages, where possession was obtained, and then the deception made, and then ownership obtained by reason of that deception. The Court thinks that, certainly as regards this case, that introduces an unnecessary complexity, and an unacceptable complexity, into the straightforward definition to be found in subsection (2).

The real point at issue at that time was the petrol obtained, and once that moment was established, it falls to consideration whether that moment was preceded by or followed by the deception. The Court takes the view that as the evidence emerged in this case - leaving aside altogether the question of ownership, which might involve difficult points under the Sale of Goods Act -possession and control must certainly have been obtained at the time the petrol was put in the tank. If that be the case, neither possession nor control took place after the moment of the deception - the deception came later; and for that reason, the obtaining was obtained before the deception was made. It is perfectly true that if this charge had been laid - even under this Section - in a different form, something to the effect that there was an implied representation made that the petrol would be paid for by the buyer, or an implied representation that it would be paid for at all, and the putting of the petrol in the tank followed that, the situation might be quite different; and it is therefore desirable to emphasise that the Court is only deciding this case on the charge as it was drafted in this case, and on the evidence as it emerged in this case. Furthermore, it should be said that if he had been charged under Section 16 of the Act - that is, obtaining pecuniary advantage by deception - it appears to the Court (and indeed, I think it is conceded by the Appellant's Counsel) that he would have had no defence to that indictment. In that respect, he has probably been fortunate. But as the matter stands, the Court takes the view that the offence with which he was charged - namely, the offence under Section 15(1) -was not proved, having regard to the definition contained in Section 15(2) and the evidence as it emerged at the trial.

It is also desirable to emphasise that of course the Court in the present case is dealing with a particular situation, where petrol has been put into the tank of a vehicle, where for practical purposes it would be extremely difficult to recover it once it had got into the tank, and a decision taken in this case can have no direct bearing on different situations such as might arise if someone was shopping in a shop and goods were transferred to a shopping basket and later on that person was stopped before the person left the shop. The Court does not desire to deal with that sort of situation with any precision, and only desires to emphasise that this case is not concerned with it.

But as the matter turns out, for the reasons I have indicated, this conviction cannot be upheld, and accordingly will be quashed.