Lilliecrap v R [1905] HCA 30; (1905) 2 CLR 681 (4 September 1905)

HIGH COURT OF AUSTRALIA

Lilliecrap and Another v The King

H C of A

On appeal from the Supreme Court of New South Wales.

4 September 1905

Griffith C.J., Barton and O'Connor JJ.

Garland, for the applicants.

Griffith C.J.

The point taken in this case is a very simple one. The prisoners were charged with larceny and with receiving. Under the Statute a person charged with larceny may be convicted of an offence under sec. 131, i.e., of taking and working or otherwise using cattle the property of another person without the consent of the owner or person in lawful possession thereof, and may be punished accordingly. At the trial of the prisoners the learned Judge in his summing up told the jury that they could find the accused guilty of stealing or of receiving, or, if they thought that the cattle were only taken for the purpose of using them, they might find a verdict of "illegally using." The jury acquitted the accused of stealing and of receiving, and found them guilty of "illegally using." The objection taken is that the verdict ought to have been returned in the terms of the section, i.e., guilty of "illegally taking and using" the cattle in question. A special case having been stated, it was argued before the Supreme Court that in a special verdict the jury must use the precise words of the section describing the offence. But that Court took the common sense view that it is quite sufficient if the words used in the oral verdict are those commonly used to describe the particular offence. It is not disputed that the words used were those under which this offence is commonly known. The Supreme Court followed the case R. v. Hall, Addison's Digest of Criminal and Magistrate's Cases, p. 303, which was decided in 1874 by Sir James Martin C.J., Faucett and Hargrave JJ. In that case the accused was charged with stealing and receiving, and the jury returned a verdict of guilty of receiving, omitting the words "feloniously" and "well knowing the same to have been stolen." The Supreme Court held that that verdict was a valid one, and sustained the conviction.

I cannot help thinking that in this case the point is not seriously arguable. It is, at best, a point of a purely technical character, not in any way touching the merits. I think that the case which was followed by the Supreme Court was rightly decided. Being of opinion, therefore, that the decision sought to be appealed from is obviously right, I think that special leave to appeal from it should be refused.

Barton J., and

O'Connor J.,

concurred.

Leave refused.

Solicitor, for applicants, J. F. Thomas, by Wilkinson & Osborne.