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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 >> Sibartie, R. v [1983] EWCA Crim 3 (21 April 1983)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1983/3.html
Cite as: [1983] Crim LR 470, [1983] EWCA Crim 3

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BAILII Citation Number: [1983] EWCA Crim 3
Case No:. 3319/A/82

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice,
21st April 1983.

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND (Lord Lane)
MR. JUSTICE McCOWAN
and
MR. JUSTICE NOLAN
____________________

R E G I N A
-v-
DHUNUNJAY SIBARTIE

____________________

(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd., 36-38 Whilefriars Street,
Fleet Street, London, EC4Y 8BH.
Telephone Number: 01-583 7635. Shorthand Writers to the Court. )

____________________

MR. J. BLAIR-GOULD appeared on behalf of the Appellant.
MR. C. SMITH appeared on behalf of the Crown.
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

(As approved by Judge)

    THE LORD CHIEF JUSTICE: This is an appeal against conviction by leave of the single Judge.

    On 17th June last year at Knightsbridge Crown Court this appellant, Dhununjay Sibartie, was convicted of a dishonest attempt to obtain exemption from liability to make payment. He was conditionally discharged for six months. The count upon which he was found guilty was count 3 of the indictment. On counts 1 and 2 he was found not guilty by the jury.

    The facts of the case were these. The appellant was a law student, aged 23 at the time the alleged offences were committed. He was of previous good character. He was living in Acton. His closest underground station was Shepherds Bush. The college which he was attending was in Hendon. The closest underground station to the collect was Hendon Central.

    The three counts in the indictment arose out of the purchase by the appellant on 24th November 1980 of two weekly underground season tickets. Count 1, on which as has already been said he was acquitted, was in respect of a ticket for travel between Shepherds Bush and Notting Hill Gate. Notting Hill Gate is two stations away from Shepherds Bush on the Central Line. The second ticket was a weekly season ticket for travel between Golders Green and Hendon Central, that is two stations away from Golders Green. Those stations are on the Northern Line.

    The suggestion of the prosecution was, so far as the first two counts were concerned, that this was a clever scheme to avoid paying for travel across and through the 14 stations which lie between Notting Hill Gate and Golders Green, the suggestion being that by buying a season ticket for the beginning of the journey and a season ticket for the end of the journey, so to speak, he intended to enable himself to travel all the way on the Central Line from Notting Hill Gate where the first season ticket ended as far as Tottenham Court Road, which is the interchange for the Northern Line, and all the stations from Tottenham Court Road to Golders Green where his second season ticket started, without paying the fare.

    That suggestion by the prosecution was negatived by the jury's finding of not guilty on the first two counts.

    But the third count was an allegation of a breach of section 2(1)(c) of the Theft Act 1978. It is right at this stage that I should read the terms of that section, which read as follows:

    "Subject to subsection (2) below, where a person by any deception —

    (a) dishonestly secures the remission of the whole or any part of any existing liability to make a payment, whether his own or another's; or
    (b) with intent to make permanent default in whole or part on any existing liability to make a payment, or with intent to let another do so, dishonestly induces the creditor to wait for payment (whether or not the due date for payment is deferred) or to forgo payment; or
    (c) dishonestly obtains any exemption from or abatement of liability to make a payment; he shall be guilty of an offence. "

    The allegation by the prosecution in count 3 was that he had attempted dishonestly to obtain an exemption from liability to make payment for his journey to or through Tottenham Court Road station, because this is what happened when he got there. As I say, this was the interchange station. It so happened that there were two women ticket inspectors on duty at the interchange point at Tottenham Court Road station. The ticket inspector who was the more closely concerned with this appellant was a Mrs. Albarus. She said on the morning of 25th November 1980 she saw the appellant coming from the direction of the East bound Central Line train and going towards the subway leading to the Northern Line platform. He was holding a ticket or a ticket wallet high in the air: "flashing" she called it; so high that she could not see what was on it. She called him back so that she could examine the ticket. He had two tickets in a plastic wallet.

    She asked him where he had travelled from. He said Notting Hill Gate.

    She asked him where he was travelling to and he said Golders Green. He said that he had no other ticket. She cautioned him, the time being about 10. 25. She asked him why he had not paid the fare between Notting Hill Gate to Golders Green. He replied "Sorry, I could not afford it".

    His version of events to the jury was that he was intending to get out of the underground system at Tottenham Court Road to go and buy a book at Foyles, that he intended to pay the fare which he ought to pay when he got to the exit there. The jury disbelieved that version quite plainly and they found him guilty of the attempt to breach the terms of section 2 of the 1978 Act which we have already read.

    The matter has been, if we may say so, most ably argued before us by Mr. Blair-Gould. He submits that the learned Judge should have withdrawn the matter from the jury and ruled that there was no case to answer at the end of the prosecution case; or alternatively, should have directed the jury in his summing up in a way different from that which he did upon this basis. He submits that the words in the 1978 Act section 2(1)(c), namely "dishonestly obtains any exemption from... liability to make a payment", are not apt to describe what happened on this occasion. He has drawn our attention to the earlier words in section 16 of the Theft Act 1968, now repealed, and he draws our attention to the words which I have already read in section 2(1)(a) and (b) of the 1978 Act. He says that unless you give a meaning to subsection (c) of that section different from the one which the Judge gave, the contents of (a) and (b) are not necessary. What he says in other words is this: that taking into account the wording of (a) and (b), it is plain that subsection (c) is not apt to describe what the appellant in the present case was admitting to do. He submits that subsection (c) deals with a potential liability, or alternatively, a liability created at the time of the fraud, and does not extend to the type of situation with which we are dealing at the moment.

    We do not accept those arguments. First of all we consider that there may be a degree of overlapping between these various subsections (a), (b) and (c) and the mere fact that the circumstances of the present case, had the attempt been successful, might have been covered by subsection (b) does not seem to us to be any reason for saying that therefore (c) does not apply.

    What we think is the correct method of approach is this. Taking the words in (c) in their ordinary meaning, would one say that what the appellant was attempting to do fell within the ambit of the words? The jury must have been satisfied, as their verdict indicates, that the appellant dishonestly used his season tickets which did not in fact cover the journey that he was making in an attempt to persuade the ticket collectors that they did cover his journey. Does that amount to an attempt to obtain an exemption from liability to make payment for the journey he had made or was making?

    Mr. Blair-Gould contends that there must be some agreement on the part of the creditor to exempt the defendant from liability. He uses as an example the exemption under the General Rate Act, from the necessity or liability to pay full rates where the ratepayer or potential ratepayer says "I am very poor. Therefore please exempt me from paying what otherwise I would have to pay."

    It seems to us that there is no distinction in principle between that situation and the present one, because here the traveller on the underground is saying, albeit tacitly by waving the season tickets in the air, "I am the holder of a ticket which authorises me to be making this journey without further payment. Consequently I am not under any liability to pay any more." In the ordinary meaning of the words it seems to us that that is dishonestly obtaining, or attempting to obtain, an exemption from the liability to pay the excess fare which, if he had been honest, he would have had to pay. As we say, the fact that it may also have been an attempt to commit an offence under subsection (b) is neither here nor there. Consequently, upon those grounds, in our judgment, the learned Judge was right not to stop the case, as Mr. Blair-Gould submitted he should have, at the end of the prosecution case, and also in his direction to the jury which it is not necessary for us to read.

    For these reasons, in our judgment, this appeal fails and must be dismissed.

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