GILBEY V. KELLY 5/1946

Ww.

dstect August 1S, VAuS

JUDGMENTS . LATHAM, C.J: It is conceded, and mist be conceded, that, in order to establish the case presented by the prosecutor, the onus is on the prosecutor to prove that the defendant did not require the production of a consumer's licence corresponding in number with the namber endorsed on the ration tickets, (in respect of which he admittedly disposed of motor spirit) as

required under Regulation 27 of the Liquid Fuel Regulations.

The evidence as to the possession of Howard's licence at the relevant time is ambiguous and unsatisfactory. It is consistent with the evidence that Howard's licence was produced by some person, and the defendant's admission that he sometimes did not inspect licences is not a clear admission that he did not do so in the case of the tickets in question.

In my opinion the appeal should be dismissed.

TURQUERT- BIchds

I agree that we are not justified in overruling the decision of Judge Markell. Tae case is important and presents some suspicious circumstances, ,an examination of the transcript shows that the case broke down on the testimony which the | informant adduced, The real lesson that may be drawn from the ease is that even in these days criminal prosecutions require careful preparation and the adduaticn of exact evidence of the elements of the offence and /exclusisp all reasonable hypotheses " consistent with innocence including those in which otherwise the defence might not take any vivid interest.

T agree that the appeal should be dismissed,

JUDGMENT :

STARKE,J: I agree that the Informant did not establish the offence

charged in the information,

GILBEY v KELLY

The offence with which the respondent was charged is created by reg, 51 (I)(c). It is that without lawful excuse he did have in his possession,otherwise than in accotdance with the regulations,certain motor spirit ration tickets. " In accordance with the regulations " means in a Way allowed by 'the regulations. It was,therefore,for the informant,who is the appellant, to establish the negative proposition that the respondent's possession of the ration tickets arose in no way that is allowed by the regulations. "te that were established,then the respondent might,nevertheless,exculpate himself on the ground that a lawful excuse existed. But of that the proof would lie upon him. He is the holder of a retailer's licence to dispose of motor spirit and,in the circumstances of the case,it would be wmreasonable to suppose that he obtained possession of the ration tickets in any manner allowed by the regulations unless it were in pursuance of reg. 27 (I). Upon that element of the charge it was therefore incumbent on the informant to show only that the respondent had not pbtained the motor spirit ration tickets in the manner allowed by reg. 27. To do this it would be necessary,I think,to show that,either the motor spirit in respect of which they were obtained by him was not disposed of to the holder of a consumer's licence or to his servant or agent authorized under reg. 38,or that the consumer ts licence was not produced to the respondent by the holder or such sweh or agent immediately before such disposal,or that the ration tickets wege not then delivered to the respondent,or that they did not correspond to the quantity of motor spirit to be disposed of. I am not inclined to think that proof of failure to comply with sub.reg. (I)(c),or sub. reg. 3 would be enough because those regulations relate to matters to be done after delivery of the tickets to the retailer disposing of motor spirit and,therefore, after the inception of his possession of the ration tickets.