Scottish High Court of Justiciary Decisons

At advising on 28th May 1948 the Lord Justice-General intimated that the Court would answer the question of law in the negative and quash the conviction, and would give their opinions at a later date.

The following opinions were delivered on 4th June 1948,—

LORD JUSTICE-GENERAL (Cooper).—When applied with due regard to its limitations, the rule of recent possession of stolen goods is salutary and sensible: but, if its limitations are not observed, the cardinal presumption of innocence may easily be transformed into a rash assumption of guilt. The rule and its limitations are stated in substantially the same sense by Hume (Commentaries, vol. i, p. 111), Alison (Criminal Law, vol. i, pp. 320 et seq.) and Dickson (Evidence, (Grierson's ed.) vol. i, secs. 73 and 157); and to these classical citations I add a quotation aptly given by Dickson (sec. 73) from Bentham; "Nothing can be more persuasive," he says, "than the circumstance of possession commonly is, when corroborated by other criminative circumstances; nothing more inconclusive, supposing it to stand alone.…Possession of the jewel, actual possession, may thus belong to half a dozen different persons at the same time; and as to antecedent possession, the number of possible successive possessors is manifestly beyond all limit."

If the rule is to have full effect in shifting the onus from the prosecution to the accused and raising a presumption of guilt which the accused must redargue or fail, three conditions must concur:—(a) that the stolen goods should be found in the possession of the accused; (b) that the interval between the theft of the goods and their discovery in the accused's possession should be short—how short I need not in this case inquire; and (c) that there should be "other criminative circumstances" over and above the bare fact of possession. If all these conditions are not present—if, for instance, the interval between the theft and the discovery is prolonged, or if the accused has only had temporary possession of the goods and has parted with them normally and openly—the facts which can be proved may well constitute ingredients (quantum valeant) in the case, and may combine with other factors to enable the Crown to establish guilt. But, unless all three conditions concur, the accused cannot be required to accept the full onus of positively excluding every element of guilt. Even when they concur, the weight of the resulting presumption, and the evidence required to elide it, will vary from case to case.

In this instance the appellant is a youth of 18 who carries on in Glasgow a scrap metal business, in which his father is also engaged. He sold to one of his father's customers, named Shearer, a quantity of phosphor bronze at a fair price, delivered the loads himself in firm lorries, and had them weighed at a public weighbridge, payment being made by cheque. The goods had been stolen shortly before from a store in Cambusnethan. They were recovered from Shearer. At his trial on a charge of theft, the appellant, corroborated by two witnesses, deponed that he had purchased the goods in a Glasgow market from a man who gave the name of M'Quade of Motherwell; to whom he paid a fair price and obtained a receipt which was produced, and that M'Quade delivered the goods at the father's yard two days before the resale to Shearer.

On these facts the Sheriff has convicted the appellant, not of theft but of reset; and he has done so solely because he did not accept the defence. In other words, the appellant has been found guilty because in the view of the Sheriff he failed to discharge the onus of proving his innocence. I consider that the Sheriff erred in treating the case as one in which a verdict of not proven on the defence was tantamount to a verdict of guilty on the criminal charge.

So far as the appellant is concerned, I can detect no "criminative circumstances" independent of the temporary possession of the goods. The goods were not found in the possession of the appellant, much less were they found so concealed or treated as to justify suspicion. They were disposed of openly in pursuance of a seemingly normal business deal. I attach no weight to the fact that when the challenge was made the appellant offered to give back to Shearer the price he had paid him, for this fact impresses me as neutral, if not more consistent with honesty than with guilt. It follows that, in the language of Bentham, the appellant's possession "stands alone," and it was only "antecedent possession" at that. If the appellant had refused all explanation, or if he had volunteered an explanation which was proved by the Crown to be false, a different situation would have arisen. But on the facts found proved the Sheriff in my view erred in treating the onus as shifted to the accused, and the conviction cannot therefore stand.

LORD CARMONT .—I am in complete agreement with your Lordship's opinion.