Myerson v R [1908] HCA 14; (1908) 5 CLR 596 (22 April 1908)

Special leave was granted in this case to appeal from an order of the Supreme Court affirming the conviction of the appellant upon a charge of conspiracy. The information presented against him, which was in somewhat vague terms, contained three counts. The first alleged that the appellant and another conspired together to cheat and defraud certain named creditors and others of "divers large quantities of goods and merchandise and divers large sums of money the property of the creditors aforesaid." The second count alleged that the accused were on 7th June 1907 made bankrupt, and that on 1st June in that year they, with intent to defraud the same creditors, conspired and agreed together that they should within four months before the sequestration order dispose of otherwise than in the ordinary way of trade certain goods and merchandise which they had obtained on credit from the creditors mentioned, and for which they had not paid. The third count I need not refer to. The jury found the accused guilty on all three counts and added:—"We strongly recommend the accused Maurice Myerson to mercy on account of ill-health, and because we believe that he was a tool, an unsuspecting tool, of Abraham, his brother," the other accused. The learned Judge before whom the case was heard reserved three points for the consideration of the Full Court. The first two related to a demurrer. The third, which is the only one for our consideration, is that the rider to the verdict of the jury was equivalent to a verdict of not guilty against Maurice Myerson, the appellant. When the case came before the Full Court they held that the demurrer to the second and third counts ought to have been allowed, and, considering the matter with reference to the first count, came to the conclusion that, under the circumstances, they were unable to say that the rider was equivalent to a verdict of not guilty. The matter cannot be put better than in the language of Cohen J. He pointed out that the question was what did the jury mean, and, after referring to the similarity of the meaning of the word "tool" to that of the word "dupe," which had been the subject of decision in the Supreme Court of New South Wales, in Reg. v. Beirne[1], went on to say[2]:—"Apart from that it is difficult to see what the jury had in their mind. Unsuspecting as to what? The jury came to a conclusion which, taken by itself, admits of no doubt that the accused were guilty. The Court must see that that part of the finding of the jury, which fixed the accused with guilt, is so affected by the subsequent recommendation, that the Court can see that the recommendation, taken with the verdict of guilty, cannot stand." It is contended for the appellant that the finding that the appellant was the unsuspecting tool of his brother is inconsistent with the finding of guilty.

As I have pointed out, the only question that now arises is as to the first count, and the question is, what is the meaning of the rider added by the jury? But, in considering that, we must not reject what was meant by the jury in finding a verdict of guilty. They found the accused guilty on the second count as well as on the first, and the fact that they found the material allegations in the second count proved is very relevant to the question what they meant by their finding, despite the circumstance that that count was subsequently found not to disclose an offence. The jury therefore found, in effect, not only that, in the language of the first count, the accused conspired together to cheat and defraud the creditors of large quantities of goods and merchandise and large sums of money, but also that they had conspired together to dispose of, otherwise than in the ordinary way of trade, goods and merchandise which they had obtained on credit from those creditors and for which they had not paid, with intent to defraud. Reference was made in argument to the case of Reg. v. Trebilcock[3], in which Lord Campbell C.J. expressed a doubt whether a rider of the jury recommending the prisoner to mercy ought to be referred to in order to ascertain what the jury meant, as it was not part of their finding. But subsequent cases go to show that that doubt cannot be supported, and that it is the duty of the Court, where a jury has found a prisoner guilty and added a rider to their verdict, to look at the whole of the finding, and that if it appears reasonably doubtful, taking the whole finding together, whether the jury have found the facts necessary to establish the offence charged, the accused is entitled to the benefit of the doubt. The question is how is the rule to be applied in the present case. The main contention for the appellant is this: that in a charge of conspiracy to defraud intent is an essential element of the offence, and that there cannot be an intent to defraud on the part of one who is the unsuspecting tool of another. That, however, depends upon the meaning of those words, and the sense in which they are used. A conspiracy to defraud may be proved in various ways, and the means of carrying out the conspiracy may also be very varied. In the present case the jury have found that one part of the agreement between the accused was that they should dispose of, otherwise than in the ordinary way of trade, goods for which they had not paid. It is obvious that one person might agree with another to assist in an enterprise of that kind and yet truthfully be called the unsuspecting tool of the other. The words seem to me to be capable of various significations. They may mean that the person spoken of did not suspect that the enterprise was unlawful. But ignorantia juris haud excusat. The words must be taken with reference to the circumstances of the particular case. If the nature of the offence in the present case were such that a person, who could be fairly described in the ordinary meaning of the words as an unsuspecting tool, could not be guilty of the offence, I think that the conviction could not be supported. But it is impossible to come to that conclusion, having regard to the nature of the offence charged and the facts found. One meaning that the words are capable of bearing is that the accused did not know that there was any harm in what he was doing, or did not know that he was exposing himself to criminal liability, and it is extremely probable that that was what the jury meant. Having, then, a clear finding that the accused was guilty of conspiring with the other accused to defraud his creditors, and having only this ambiguous expression in the rider to qualify it, I think it is a case for the application of this principle that a clear statement or finding of fact is not to be cut down by the subsequent use of ambiguous words. For my own part, I am disposed to think that we ought not to have granted special leave to appeal in this case, and I had grave doubt on the point at the time. But there has been no application to rescind the special leave, and I have expressed my opinion on the merits. The only question really involved is not one of general interest or importance in the administration of the criminal law, as to the right of an accused person to get the benefit of an uncertainty in the conviction, but is rather a question of the meaning of the particular words used by the jury in this case. That is not a matter of general importance.

When we granted special leave to appeal we had not the advantage of seeing the reasons of their Honors of the Supreme Court. If we had, it is still more doubtful whether we should have granted it.

[1] 14 S.C.R. (N.S.W.), 351.

[2] (1907) 7 S.R. (N.S.W.), 748, at p. 760.

[3] 1 Dears. & B., 453; 27 L.J.M.C., 103.

High Court of Australia

Myerson v R [1908] HCA 14; (1908) 5 CLR 596 (22 April 1908)

HIGH COURT OF AUSTRALIA