Koury v. R., [1964] SCR 212

Supreme Court of Canada

Koury v. R., [1964] S.C.R. 212

Date: 1964-01-28

Henry Koury (Plaintiff) Appellant;

and

Her Majesty the Queen (Defendant) Respondent.

1963: November 19, 20; 1964: January 28.

Present: Taschereau C.J. and Cartwright, Fauteux, Abbott, Martland, Judson, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Conviction for fraud—Acquittal on charge of conspiracy—Whether inconsistency—Criminal Code, 1953-54 (Can.), c. 51, ss. 592, 597.

The appellant and three others were charged on an indictment containing, inter alia, a count of fraud and a count of conspiracy to commit the fraud. He was convicted with the others on the count of fraud and, while he was acquitted on the count of conspiracy, the three others

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were convicted on that count. The appellant’s defence was that he withdrew from the association at a certain time and took no part in the actual fraud except as a friendly bystander without criminal intent. The case put against him by the Crown was that he was an aider and abettor. The Court of Appeal maintained the convictions. The appellant alone appealed to this Court by leave on the ground that his conviction for fraud should be set aside as inconsistent with his acquittal for conspiracy.

Held (Cartwright, Ritchie and Hall JJ. dissenting): The appeal should be dismissed.

Per Taschereau C.J. and Fauteux, Abbott, Martland, Judson and Spence JJ.: The judge’s charge was correct in both fact and law and he was under no compulsion to direct that if the jury acquitted the appellant on the conspiracy count he could not be convicted with the others on a count of committing that very offence.

The two offences dealt with in these two counts were distinct and separate offences. There was no inconsistency requiring the quashing of the conviction for fraud because of the acquittal for conspiracy. The appellant was convicted for fraud on ample evidence and pursuant to a correct instruction that it was necessary for the Crown to show a common intent or design among all four accused in doing whatever the jury found they did. Aiding and abetting pursuant to a common intent and design is not necessarily the same thing as the conspiracy charge in this case and it was not.

On the evidence the error, if any, was in the acquittal on the charge of conspiracy and not in the conviction on the substantive offence. The appellant was properly convicted and his acquittal on the charge of conspiracy did not vitiate this conviction or give rise to any substantial wrong or miscarriage of justice. This Court was not compelled to defer to this acquittal for the purpose of quashing the conviction for fraud, and was entitled to look at the facts behind the record of the acquittal. There was no error in the conduct of this trial, the appellant was properly convicted on the count of fraud and there was no substantial wrong or miscarriage of justice.

It was doubtful as to whether there was in this case any question of law which would give this Court jurisdiction under s. 597 of the Criminal Code. But it was not necessary to decide this.

Per Cartwright, Ritchie and Hall JJ., dissenting: The trial judge ought to have told the jury that if they acquitted the accused on either of these two counts they should acquit him on both. It was impossible to see how the jury could consistently acquit the appellant on the count of conspiracy and convict him on the count of fraud. In the circumstances of this case if, as was the theory of the Crown, the appellant aided the others in carrying out their dishonest purposes he would have been guilty of conspiring with them and this was negatived by the verdict of not guilty on the count of conspiracy which stands unimpeached. The appellant could only be convicted on the count of fraud if the jury were satisfied that he was acting in concert with the others. The appellant was said to be guilty of acting together with three others, which was of course conspiracy, while at the same time he was said to be not guilty of conspiring with the three others. His conviction on the count of fraud was inconsistent with his acquittal on the count of conspiracy and could not stand.

Per Ritchie J., dissenting: The verdict of the jury on the conspiracy count constituted a finding that three of the accused agreed to a plan to

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defraud but that the appellant, who was familiar with the details of the plan, joined the others and played a vital role in putting the plan into effect without having agreed to do so. The verdict on the fraud count was inconsistent with the finding on the conspiracy count. Before a conspiracy can be complete, there must be evidence both of common design and of an agreement to carry that design into effect. If the appellant had been a party to the conspiracy to defraud, then his acts of participation in the perpetration of the fraud would have been an essential part of the conduct which caused the common unlawful design to pass from the stage of intention into that of action. As he was found not guilty of that conspiracy, his acts could not have that quality and could not justify a finding of guilty on the fraud count. The evidence against the appellant, if believed, was only consistent with mutual consent between himself and the others in the execution of their common unlawful design and the finding that there was no such mutual consent carried with it the corollary that the appellant could not have participated jointly with the others in the manner alleged in the fraud count. It was strongly suggested that the jury treated the acts of the appellant as being the acts of an aider and abettor rather than being the innocent acts of courtesy which the appellant swore they were. This suggestion could not be accepted. The two verdicts were irreconcilable on their face and this Court could not inquire as to the underlying causes which may have contributed to this inconsistency.

APPEAL from a judgment of the Court of Appeal for Ontario affirmining the appellant’s conviction for fraud. Appeal dismissed, Cartwright, Ritchie and Hall JJ. dissenting.

G.A. Martin, Q.C., and E.P. Hartt, Q.C., for the appellant.

J.A. Hoolihan, for the respondent.

The judgment of Taschereau C.J. and Fauteux, Abbott, Martland, Judson and Spence JJ. was delivered by

SPENCE J.:—This is an appeal from the judgment of the Court of Appeal for Ontario dismissing the appeal by Henry Koury from his conviction after a trial before Gale J. and jury upon a charge that Roy Robertson, Henry Koury (the present appellant), Andre Begin and D. Charles Stuart, in the month of March 1960, did obtain certain moneys therein set out by deceit, falsehood or other fraudulent means. At the trial, these four accused were charged in an indictment containing, inter alia, the following counts:

1. The jurors for Her Majesty the Queen present that Roy Robertson, Henry Koury, Andre Begin, and D. Charles Stuart in or about

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the month of March, in the year 1960, at the City of Toronto, in the County of York, did unlawfully by deceit, falsehood or other fraudulent means, defraud Stadacona Mines (1944) Limited of valuable securities, equipment and machinery, a cheque in the amount of $300,000 drawn by Stadacona Mines (1944) Limited payable to Norado Mines Limited, $50,000 in trust money, and choses in action, to the total value of approximately Three Hundred Thousand ($300,000) Dollars, contrary to the Criminal Code.

* * *

5. The said jurors further present that the said Roy Robertson, Henry Koury, Andre Begin and D. Charles Stuart, in or about the months of January, February and March, in the year 1960, at the City of Toronto, in the County of York, and elsewhere, did unlawfully conspire and agree together and with one another to commit the indictable offence of fraud, to wit: by deceit, falsehood or other fraudulent means, to defraud Stadacona Mines (1944) Limited of valuable securities, equipment and machinery, a cheque in the amount of $300,000 drawn by Stadacona Mines (1944) Limited payable to Norado Mines Limited, $50,000 in trust money, and choses in action, to the total value of approximately Three Hundred Thousand ($300,000) Dollars contrary to the Criminal Code.

All four of the accused were convicted on count number 1. The three accused Robertson, Begin and Stuart were convicted on count number 5 but Koury was acquitted on that count. On appeal to the Court of Appeal for Ontario by all four accused, the appeals were dismissed. Koury now appeals to this Court. Leave for such appeal was granted under the provisions of s. 597(1) (b) of the Criminal Code upon the following grounds:

1. Did the Court of Appeal for Ontario err in law in holding that the conviction of Koury on Count One was not inconsistent with his acquittal on Count Five?

2. Did the Court of Appeal for Ontario err in failing to hold that the conviction of Koury on Count One was bad in law?

3. Did the Court of Appeal for Ontario err in law in failing to hold that there was no evidence by virtue of which the conviction of Koury on Count One could be sustained consistently with the acquittal of Koury on Count Five?

Ground 2 does not state a question of law for the consideration of this Court and the sole issue in this appeal is whether the conviction of Koury with his three co-accused on count 1 should be set aside as inconsistent with his acquittal on count 5.

The appellant submits that since he was acquitted on the charge of conspiracy to commit the indictable offence, he could not be convicted with others on a count of com-

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mitting that very offence. He also repeats in this Court his submission made for the first time in the Court of Appeal that the judge’s charge should have contained a direction to that effect. In my opinion, the judge’s charge was correct in both fact and law and he was under no compulsion to give this direction, which was not even asked for.

In spite of the complexity of detail and the lengthy trial, the issue, as far as this person is concerned, can be stated in a few words. The appellant says that at a certain time he withdrew from his association with his co-accused, whatever that association may have amounted to at that time, and that he took no further part in the scheme. But the evidence shows that notwithstanding this protestation, he went on, together with the other three co‑accused, to take part in the stripping of the valuable assets of this company in return for worthless assets or promises. On this evidence the jury properly convicted the appellant of fraud and had that count stood alone, it could not have been set aside on appeal. We have, therefore, this assumed position of error. This man participated in the commission of the fraud but he did not conspire to commit the fraud.

The trial judge correctly instructed the jury on counts 1 and 5 and he put to the jury the accused’s defence that he withdrew from the association at a certain point of time and that he took no part in the actual fraud except as a friendly bystander without criminal intent. In acquitting the accused of conspiracy, the jury must have found that he withdrew from the association before the conspiracy had been entered into, for the judge made it very clear in his charge that the offence of conspiracy was complete once the agreement was made.

On count 1 (the substantive offence) the judge made it equally clear that the Crown had to show a conscious participation in a common design and conscious and deliberate assistance between the aider and abettor and the other persons. The case put against Koury on count 1 was that he was an aider and abettor.

The two offences dealt within these two counts are distinct and separate offences (The Queen v. Kravenia[1]). There is no inconsistency that requires the quashing of the conviction of Koury on count 1 because of his acquittal

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on count 5. As to the conviction on count 1, there was ample evidence to support it. The recent case in the Court of Criminal Appeal in England, Regina v. Scaramanga[2], has no application here. This accused was convicted on count 1 pursuant to a correct instruction that it was necessary for the Crown to show a common intent or design among all four accused in doing whatever the jury found they did. Aiding and abetting pursuant to a common intent and design is not necessarily the same thing as the conspiracy charged in count 5 and it is not the same thing in this case. On this ground alone I would dismiss the appeal.

There are, however, broader implications in the argument submitted in this case. The argument is that once it is shown on the face of the record that there is an inconsistency then the quashing of the conviction must follow automatically citing Regina v. Sweetland[3]. That theory of inconsistent verdicts grew up at common law. I can well understand its application before the constitution of a Court of Criminal Appeal when the only mode of review, apart from the Court of Crown Cases Reserved, was the Writ of Error, which brought before the reviewing tribunal only the indictment, the plea and the verdict. With a vitiating inconsistency appearing on the face of this limited record, all that the Court of Queen’s Bench could do was to quash the conviction.

But a case does not now come before a provincial Court of Appeal on this limited record. We have, in addition, the Judge’s charge to the jury and the whole of the evidence on which it is based. We can also see in a limited way from the objections made to the charge, how defence counsel wishes to have his defence put to the jury. A Court of Appeal has had no difficulty in dealing with inconsistent convictions for theft, receiving and obtaining by fraud relating to the same property; Kelly v. The King[4]. In the same way in Cox and Paton v. The Queen[5], when the accused were charged with conspiracy to steal and stealing, and conspiracy to defraud and fraud in connection with the same property and were convicted by the jury on all four counts, this Court decided, in affirming the Manitoba Court of Appeal, that the offence disclosed was fraud and

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conspiracy to defraud and not theft. To the extent indicated in these cases, the Court of Appeal then can sort out the inconsistency.

The appellant, however, argues that this case is different and that even if the Court may look at the complete proceedings the verdicts are inconsistent. Four accused are jointly charged with doing the act and the same four are jointly charged with conspiracy to do that very act. The appellant says that in this situation it must be all or nothing and that he cannot be found guilty of doing the act with others because the jury has found that he did not conspire to do this act with them.

In my view, this argument adopts a wrong interpretation of the judgment in Regina v. Sweetland, where Goddard L.C.J. said at p. 66:

This Court is not laying down in this case, and has no intention of allowing this case to be quoted as an authority for saying, that, whenever a verdict of Not Guilty is returned on a count for conspiracy to commit offences and Guilty on other counts in the same indictment charging those specific offences, or contrariwise when a verdict of Guilty is returned on the count of conspiracy and Not Guilty on the counts charging specific offences, the verdict is necessarily inconsistent. Each case must depend on its particular circumstances, and it is very dangerous in circumstances of this sort to lay down general rules which could be quoted when the facts might be entirely different.

To give effect to this submission would be to ignore the common sense of the trial. Courts of Appeal do not now operate under 19th century procedural limitations. On the evidence that we can now examine, the error, if any, is in the acquittal on the charge of conspiracy and not in the conviction on the substantive offence. We can say with assurance that on this record, which includes the whole of the evidence, the judge’s charge and the objections of defence counsel to the charge, that this man was properly convicted and that his acquittal on conspiracy does not vitiate this conviction or give rise to any substantial wrong or miscarriage of justice. We are not compelled to defer to this acquittal for the purpose of quashing the conviction on fraud. We are not engaged in a process of logic chopping and we are entitled to look at the facts behind the record of the acquittal.

It has been stated that there was error on the part of the trial judge in not instructing the jury that they could not acquit on conspiracy and at the same time bring in a

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verdict of guilty on the substantive offence. This seems to me to ignore the theory put forward by the defence at the trial and which the trial judge submitted to the jury. This was that the appellant withdrew from association with his co-accused at a certain time before there was any conspiracy and that he should be acquitted on this count. Further, the defence submitted that the jury should find that he did not participate in the commission of the fraud because he was merely there as a friendly bystander without any criminal intent. The two defences had to be put together. There would have been error if the judge had not instructed the jury along these lines. The jury rejected one of these defences but gave effect to the other, which merely means that they were saying that at a certain time this man did withdraw from his association. I think that they were wrong in so finding in view of the subsequent conduct of the accused but this makes no difference. I do not think that the trial judge could have put it to the jury that it was all or nothing.

It was never put to the trial judge that he should consider the possibility of inconsistent verdicts and instruct the jury accordingly. Indeed, when the jury came back with these verdicts which are now said to be inconsistent, he was not asked to instruct the jury to deal with the supposed inconsistency. There was no error in the conduct of this trial and I am prepared to decide (a) that the appellant was properly convicted on count 1; (b) that there was no substantial wrong or miscarriage of justice.

The principle stated in Regina v. Sweetland, supra, that there is no general rule that whenever there is an acquittal on a count of conspiracy to commit certain offences and a conviction on other counts in the same indictment charging those specific offences, the verdict is necessarily inconsistent, was never challenged in argument by the appellant. In view of that principle, I have some doubt as to whether there is any question of law which would give this Court jurisdiction under s. 597 of the Criminal Code.

The jurisdiction of the Court of Appeal to have allowed the appellant’s appeal, had it thought fit so to do, is defined in s. 592 of the Criminal Code. It could have done so if it were of the opinion that:

(i) The verdict of the jury on count one was unreasonable or could not be supported by the evidence.

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(ii) The judgment of the trial court should be set aside on the ground of a wrong decision on a question of law.

(iii) There was a miscarriage of justice.

There has been no submission that there was a wrong decision on a question of law by the trial Court, other than the suggestion, not made at the trial, that the jury ought to have been instructed in the charge regarding the possibility of inconsistency of verdicts, which submission I do not accept. The case before the Court of Appeal must have been based upon the proposition that the verdict of the jury on count one was unreasonable and could not be supported by the evidence in the light of the appellant’s acquittal on count five.

Does the refusal of the Court of Appeal to allow the appellant’s appeal on those grounds raise an issue of law?

This is not a case within those authorities cited by the appellant in which one person has been found guilty of conspiracy and all the other alleged conspirators have been acquitted, or in which one person has been found guilty of being accessory to a murder when all of the alleged murderers have been acquitted. In this case the law is that the verdict of guilty of the specific offence is not necessarily inconsistent with an acquittal on a charge of conspiracy to commit that offence. Whether or not the verdict of guilty was unreasonable or could not be supported by the evidence would appear to involve a decision, in the light of all the circumstances of the case, on a question of mixed law and fact.

I do not, however, wish to express any final opinion on this isue, particularly as it was not raised by the respondent and consequently was not argued before us.

I would therefore dismiss the appeal.

The judgment of Cartwright, Ritchie and Hall JJ. was delivered by

CARTWRIGHT J. (dissenting):—This appeal is brought, pursuant to leave granted by this Court, from a unanimous judgment of the Court of Appeal for Ontario dismissing an appeal from the conviction of the appellant before Gale J. and a jury at the Toronto assizes.

The trial commenced on March 19, 1962, and ended on May 16, 1962.

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The appellant was indicted jointly with three other persons, Robertson, Begin and Stuart. The indictment contained eight counts in each of which the four accused were jointly charged.

Counts 1 and 5 with which we are chiefly concerned read as follows:

1. The jurors for Her Majesty the Queen present that Roy Robertson, Henry Koury, Andre Begin and D. Charles Stuart in or about the month of March, in the year 1960, at the City of Toronto, in the County of York, did unlawfully by deceit, falsehood or other fraudulent means, defraud Stadacona Mines (1944) Limited of valuable securities, equipment and machinery, a cheque in the amount of $300,000 drawn by Stadacona Mines (1944) Limited payable to Norado Mines Limited, $50,000 in trust money, and choses in action, to the total value of approximately Three Hundred Thousand ($300,000) Dollars, contrary to the Criminal Code.

5. The said jurors further present that the said Roy Robertson, Henry Koury, Andre Begin, and D. Charles Stuart in or about the months of January, February, and March, in the year 1960, at the City of Toronto, in the County of York, and elsewhere, did unlawfully conspire and agree together and with one another to commit the indictable offence of fraud, to wit: by deceit, falsehood or other fraudulent means, to defraud Stadacona Mines (1944) Limited of valuable securities, equipment and machinery, a cheque in the amount of $300,000 drawn by Stadacona Mines (1944) Limited payable to Norado Mines Limited, $50,000 in trust money, and choses in action, to the total value of approximately Three Hundred Thousand ($300,000) Dollars contrary to the Criminal Code.

It will be observed that the indictable offence which it is alleged in count 5 that the four accused conspired to commit is the substantive offence which it is charged in count 1 that they did commit.

Count 2 charged the four accused with having defrauded Guaranty Trust Company of Canada of $50,000 in trust money. This is the same $50,000 as that referred to in count 1. Count 2 was framed to cover the possibility of this money at the time it was taken being regarded as the property of the Trust Company rather than of Stadacona Mines (1944) Limited.

Counts 3 and 4 were alternative to counts 1 and 2, they charged theft (rather than fraud) in regard to the same property as was described in counts 1 and 2.

Counts 6, 7 and 8 charged the four accused with conspiring to commit the substantive offences charged in counts 2, 3 and 4.

The jury found all four of the accused guilty on count 1, adding a recommendation for leniency as to Koury and

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Begin; they found Robertson, Begin and Stuart guilty on count 5, adding a recommendation for leniency as to Begin; they found the appellant not guilty on count 5; they found Stuart alone guilty on count 2; on all the remaining counts ‘they found all the accused not guilty.

All of the accused appealed against their convictions to the Court of Appeal. All of the appeals were dismissed. Koury alone has appealed to this Court.

The questions of law upon which leave to appeal to this Court was given are as follows:

1. Did the Court of Appeal for Ontario err in law in holding that the conviction of Koury on count one was not inconsistent with his acquittal on count five?

2. Did the Court of Appeal for Ontario err in failing to hold that the conviction of Koury on count one was bad in law?

3. Did the Court of Appeal for Ontario err in law in failing to hold that there was no evidence by virtue of which the conviction of Koury on count one could be sustained consistently with the acquittal of Koury on count five?

It is not necessary to state the facts at any great length. Stadacona Mines (1944) Limited, hereinafter referred to as “Stadacona”, was a mining company. Early in 1960 it no longer had a producing property and was losing money. Prior to March 10, 1960, Robertson owned, or controlled through other companies, 625,000 shares of Stadacona; this was said to be a sufficient number of shares to give him working control of that company. He was its president.

On the morning of March 10, 1960, Stadacona owned assets of $368,196 consisting of the following:

Mining equipment valued at $35,000;

Negotiable securities valued at $40,000;

Accounts receivable in the form of call loans owed to it almost entirely by the accused Robertson and his companies; $175,000;

Cash deposited in a new bank account at the Guaranty Trust Company, Toronto on March 10, 1960, $118,196.

By the end of that day Stadacona had parted with all of the above-mentioned assets except $68,196. The main step by which this was brought about was the making of a call loan by Stadacona to a company called Norado Mines Limited, hereinafter referred to as “Norado”, which was said to be without assets.

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On March 7, 1960, Koury, who had previously controlled Norado, had turned over the control of that company to Stuart.

As a result of the transactions carried out on March 10 (Robertson received in money, equipment, securities and by the extinguishment of his indebtedness to Stadacona $250,000. For this he transferred his 625,000 shares to Norado; these were said to be worth less than $75,000; Norado which had no other assets paid for these shares with the money loaned to it, without security, by Stadacona. The transaction was put through by new directors of both companies, who had little business experience, and were selected by Stuart. Shortly afterwards Stuart caused Norado to pay out to him the $50,000 remaining in its bank account in the Guaranty Trust Company in exchange for some mining claims stated to be of little value. As Stuart alone was convicted on count 2 and all the accused were acquitted on count 6 the jury must have taken the view that this last-mentioned transaction was that of Stuart and that the other three accused were not involved in it.

In the negotiations between Robertson and Stuart leading up to the main transaction above referred to Begin acted as Robertson’s lawyer and Koury acted as Stuart’s lawyer. Koury from time to time consulted Mr. Stirrett a solicitor in Toronto. It was the theory of Koury’s defence that as soon as Stirrett advised him that the proposed transaction, and particularly the making of the call loan of $300,000, was an improper one he dissociated himself from it and that anything he did thereafter was done as a mere matter of courtesy. The theory of the Crown, on the other hand, was that Koury took an active part in the completion of the transaction and particularly that he co-operated in arranging the necessary meetings, indicated the manner in which the call loan to Norado should be authorized and assisted in carrying out the delivery of the share certificates from Robertson to Stuart.

The charge of the learned trial judge was, of necessity, a lengthy one. He made it clear to the jury that in his view it was open to them to convict or to acquit Koury on count 1 and also on count 5. He did not tell them that if they acquitted him on either of these counts they should acquit him on both. With respect, in my opinion, he ought

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to have done so. After reading the opening address to the jury of counsel for the Crown, the charge of the learned trial judge and the relevant evidence which counsel for the appellant and for the respondent called to our attention, I find it impossible to see how the jury could consistently acquit the appellant on count 5 and convict him on count 1.

There is no evidence that Koury sought for himself or obtained any part of the assets of which Stadacona was defrauded. The theory of the Crown was that knowing the dishonest purposes of Robertson and Stuart he aided them in carrying them out. If he did this, in the circumstances of this case, he would have been guilty of conspiring with them and that he did so conspire has been negatived by the verdict of not guilty on count 5 which stands unimpeached.

It is well settled, and indeed I did not understand it to be questioned in argument, that where an accused is convicted on one charge and acquitted on another and the verdicts are inconsistent the conviction cannot stand. Whether or not two verdicts are inconsistent depends upon the particular circumstances of the case in which the question arises.

The judgment of the Court of Appeal was delivered orally by the learned Chief Justice of Ontario at the conclusion of the argument which had taken up four days. The question with which we are concerned was dealt with as follows:

As to the accused Koury, it was argued on his behalf,...secondly, that the conviction on count 1 was inconsistent with the acquittal on count 5... As to the second contention, Mr. Martin referred to and relied particularly and mainly upon the case of Regina v. Sweetland, 42 C.A.R. p. 62. It was made abundantly plain in that case that the decision was reached on the particular facts and that the Court was not laying down any principle of law. We are of the opinion that the facts in the case at bar are different from those in the Sweetland case, 42 Cr. App. R. 62. In our opinion the proper principles were stated in Rex v. Lenton (1947) O.R. 155 at p. 161 and R. v. Kupferberg 13 Cr. App. R. 166 at p. 168.

In R. v. Kupferberg[6], the conviction of the appellant was at a trial subsequent to the one at which he had been acquitted of conspiracy. The argument of the defence was based on a plea of autrefois acquit. There appears to have been no direct reference to the rule that inconsistent verdicts cannot stand or to an argument based on res judicata such,

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for example, as was dealt with in Sambasivam v. Public Prosecutor, Federation of Malaya[7]. The passage in the judgment in Kupferberg’s case on which counsel for the respondent relies is at p. 168 and reads as follows:

Counsel further contended that the appellant was entitled successfully to plead autrefois acquit at the second trial, because at the first trial he had been acquitted of certain charges of conspiracy which were framed under the same Regulation as that which formed the basis of the charges made against him at the second trial. That also appears to the Court to be an erroneous contention. A charge of conspiracy is not the same as one of aiding and abetting. It is true that in many cases aiding and abetting is done by the mutual consent of the criminals, but it is not essential that it should be. For a plea of autrefois acquit to be maintainable, the offence of which the accused has been acquitted and that with which he is charged must be the same in the sense that each must have the same essential ingredients. The facts which constitute the one must be sufficient to justify a conviction for the other. To prove conspiracy against the appellant, it is necessary that an agreement, express or implied, should be proved to the satisfaction of the jury, but it is quite unnecessary to prove such agreement where the charge is one of aiding and abetting. In the latter case, it is only necessary to show that the appellant appreciated what was going on and did something to further it.

It seems clear that if the Court in Kupferberg’s case had considered that the aiding and abetting by the accused was done with the mutual consent of those who had been indicted with him on the conspiracy count his appeal would have been allowed.

In the case at bar there is no room for the suggestion that Koury gave any unsolicited aid or did anything to further the perpetration of the fraud otherwise than with the consent of and in co-operation with the other accused. Whenever he indicated a desire to withdraw either Stuart or Begin or both of them pressed him to continue his assistance.

In Lenton’s case[8], the accused and one Hicks were charged with conspiring to commit the indictable offence of forcibly seizing or confining one Neilson and also with the substantive offence of unlawfully seizing and confining him. Both the accused and Hicks were acquitted on the conspiracy count and convicted of the substantive offence. The part played by the accused was confined to the sending of telegrams. He first learned of the matter after Neilson had been

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seized and confined. Following the receipt of a telegram from one Schmaltz reading:

 Arrived Jackfish met nine scabs aboard train they return with J. Osipindo union men steamer Kenora has 26 scabs aboard they hollered ‘from boat they were locked aboard two days we hold company man F. Neilson Steamer Kenora gone out to anchor advice immediately what to do urgent two steamers in bay boys are under pressure to sail contact police.

the accused sent a telegram to Hicks reading:

Hold official stop have two pickets inform citizens of our case stop request them wire Minister of Justice to take action stop hold the fort we are taking case to R.C.M.P. and will swear out warrant stop excellent work.

The only passage in the reasons touching the question with which we are concerned reads as follows:

As to the first point, it was quite open to the jury to find that although appellant and his alleged co-conspirators arrived at no common agreement to commit the indictable offences as charged, yet appellant, within the meaning of s. 69 of the Code, and independently of any conspiracy counselled or procured the confining of Neilson. Upon the evidence there is no inconsistency in these findings. Even accepting appellant’s own evidence as to the contents of the telegram of 6.55 a.m., it was quite open to the jury to believe that appellant was counselling or procuring Hicks to detain Neilson in the complete absence of any conspiracy between them to bring about such detention.

The Court amended the conviction to read guilty of unlawfully confining Neilson instead of guilty of unlawfully and forcibly seizing and confining Neilson.

It seems obvious that the accused could not have been a party to a conspiracy to bring about Neilson’s detention since that had been brought about before the accused was brought into the matter at all. I cannot find that this judgment enunciates any principle helpful in the decision of the case at bar.

In R. v. Sweetland[9], Lord Goddard, giving the judgment of the Court of Criminal Appeal, said at p. 66:

This Court is not laying down in this case, and has no intention of allowing this case to be quoted as an authority for saying, that, whenever a verdict of Not Guilty is returned on a count for conspiracy to commit offences and Guilty on other counts in the same indictment charging those specific offences, or contrariwise when a verdict of Guilty is returned on the count of conspiracy and Not Guilty on the counts charging specific offences, the verdict is necessarily inconsistent. Each case must depend on its particular circumstances, and it is very dangerous in circumstances of

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this sort to lay down general rules which could be quoted when the facts might be entirely different.

At p. 68 the Lord Chief Justice said:

It may be that this matter would have been cleared up if the Recorder had told the jury to consider their verdict further. As he did not do so, we think that Mr. Clarke is justified in saying that in this particular case there does appear to be on the face of it an inconsistency in the verdict. Persons are said to be guilty of acting together, which is of course, conspiracy, in obtaining cheques by false pretences while at the same time they are said to be not guilty of conspiring to obtain them by false pretences.

In the case at bar Koury could only be convicted on count 1 if the jury were satisfied that he was acting in concert with the other accused. There is no suggestion in the evidence that he committed some independent act of fraud on Stadacona and had there been such evidence he could not have been convicted of that independent act on a count charging him jointly with the other three accused who were convicted. The authorities on this point are collected in the recent judgment of the Court of Criminal Appeal, delivered by Lord Parker of Waddington, in R. v. Scaramanga[10]. The effect of the judgment is summarized in the following paragraph at p. 220:

In our judgment, except where provided by statute, when two persons are jointly charged with one offence, judgment cannot stand against both of them on a finding that an offence has been committed by each independently.

The circumstances of the case at bar appear to me to fall directly within the last sentence quoted above from the judgment of Lord Goddard at p. 68 of Sweetland’s case. Adapting his words to the facts of the case before us, Koury is said to be guilty of acting together with Robertson, Begin and Stuart, which is of course conspiracy, in defrauding Stadacona while at the same time he is said to be not guilty of conspiring with Robertson, Begin and Stuart to defraud Stadacona. In my opinion the conviction of Koury on count 1 is inconsistent with his acquittal on count 5 and cannot stand.

When these two inconsistent verdicts were rendered it would have been proper for the learned trial judge to have given the jury a further direction, pointing out the inconsistency, and to have sent them back to reconsider their

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verdicts as to Koury on counts 1 and 5. Had this course been followed no one can say what the result would have been.

I would allow the appeal, direct that the verdict finding the appellant guilty on count 1 of the indictment be quashed and that a verdict of acquittal be entered.

RITCHIE J. (dissenting):—The facts giving rise to this appeal have been fully set forth in the reasons of other members of the Court and I will endeavour not to repeat more of what they have said than is absolutely necessary for the purpose of making my views clear.

Having regard to the charge of the learned trial judge and to those parts of the evidence to which our attention was directed by both counsel, I am of opinion that the verdict of the jury on count 5 of this indictment constitutes a finding that three of the accused agreed to a plan for defrauding the Stadacona Mines (1944) Limited but that the fourth (the appellant) who was familiar with the details of the plan, joined the others and played a vital role in putting the plan into effect without having agreed to do so. The verdict on count 1, which means that the appellant’s acts of co-operation in the perpetration of the fraud were acts done in furtherance of a common unlawful intent to defraud, is, in my opinion, inconsistent with the finding on the conspiracy count.

There can be no doubt that a clear distinction exists between the crime of conspiracy to commit an indictable offence and the crime of committing that offence, and it is also clear to me that a man who has been tried and acquitted of conspiracy to commit an offence could later, when tried alone, be properly convicted of having aided and abetted in the commission of the same offence, providing that the acts of those participating in its commission were not so inter-dependent as to be consistent only with their having been the product of pre‑arrangement between the participants. (See Rex v. Kupferberg[11]; Preston v. The King[12]).

It is to be observed also that where two people are tried together on two counts—one of conspiracy and the other of committing the substantive offence—there is not necessarily any inconsistency in a verdict which acquitted them

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both of conspiracy and found one only to be guilty of the substantive offence. In such a case the verdict is consistent with the crime having been committed by one alone and with there having been no conspiracy. (See the recent case of Anandagoda v. The Queen[13]).

The most frequently quoted definition of conspiracy is that to be found in the reasons for judgment of Willes J. in Mulcahy v. The Queen[14], where he said:

A conspiracy consists, not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object, or for the use of criminal means.

This definition has frequently been cited in support of the proposition that before the conspiracy can be complete there must be evidence both of common design and of an agreement to carry that design into effect. It is, however, well to remember what was said by Lord Alverston in Rex v. Tibbets[15], where he commented on the Mulcahy definition in the following terms:

It is plain that the very learned Judge was there speaking of a case in which the criminal intention has not been carried into effect, and he says that in such a case the very promise to do—such a promise as would be binding for a lawful purpose—is an act which negatives the suggestion that the matter rests in intention only. He never said that when the unlawful purpose had been carried out no indictment for conspiracy can be maintained unless a concerted action has been preceded by such a contract between the conspirators as if the purpose had been lawful, would have given ground for a lawsuit. His definition is not of conspiracy, but of a kind of conduct which is sufficient to make the concerted action pass from the stage of intention into that of action.

If the appellant had been a party to the conspiracy to defraud for which his co-accused were convicted, then his acts of participation in the perpetration of the fraud itself would, as I see it, have been a part, and an essential part, of the conduct which caused the common unlawful design of the conspirators to pass from the stage of intention into that of action. As he has been found not guilty of that conspiracy, his acts cannot have that quality and if they were not acts done in furtherance of the common unlawful intent

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and design to which his fellow defrauders had been found to have agreed, then they cannot, in my view, justify a finding of guilty on the first count of the indictment.

If the appellant had withdrawn from the conspiracy and rejoined it in time to assist in knowingly carrying out its illegal object, then his participation would, in my opinion, have made him a co-conspirator and the finding that he had no part in the conspiracy could therefore in my view, only be justified on the basis of his active participation having been innocent and devoid of fraudulent intent.

The evidence against the appellant, if believed, was, in my opinion, only consistent with mutual consent between himself and his fellow accused in the execution of their common unlawful design and, as I have indicated, the finding that there was no such mutual consent carries with it the corollary that the appellant cannot have participated jointly with his co‑accused in the manner alleged in count 1.

It was strongly suggested by counsel for the respondent that the verdict should be construed as an acceptance by the jury of the accused’s story that he had withdrawn from the conspiracy before the fraud was actually perpetrated, but that they treated the acts which he thereafter performed in furtherance of the common unlawful design as being the acts of an aider and abettor rather than being the innocent acts of courtesy which the appellant swore that they were. It appears to me, as I have indicated, that the verdicts on counts 1 and 5 are irreconcilable on the face of it and I do not feel competent to inquire as to the underlying causes which may have contributed to this inconsistency.

In the case of Rex v. Cooper and Compton[16], the jury had returned a verdict finding the appellants guilty on a count charging conspiracy but not guilty on several other counts charging the commission of the substantive offences involved in the conspiracy. Having regard to the circumstances disclosed in the evidence, the Court of Criminal Appeal found the verdicts to be unreasonable and in the course of his reasons for judgment Humphreys J. said:

The learned Judge then said to counsel for the defence: “As I understand the verdict... what they have found is that there was a conspiracy existing between these two men to steal in the course of their duties, but that they are agreed, so far as the particular instances before the court are

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concerned, that conspiracy was not in fact carried out”, and counsel for the defence said that that was the way he understood the verdict.

That is the way in which the verdict has been construed in this court, and it may be that it is correct, but this court takes the view, and always has taken the view, that we are not prepared to speculate on what a jury meant by a verdict which they have returned. We can only deal with the actual language used by the jury in returning the verdict. In the course of the argument a number of theories have been put forward on what the jury may have thought. We do not join in that speculation. All we can say is that the jury have said in terms: “We are not satisfied with the case for the prosecution on counts 2 to 9. We are satisfied with the case for the prosecution on count 1”, and they returned verdicts accordingly.

These observations, in my opinion, apply to the consideration of the jury’s verdict in the present case.

For these reasons as well as those stated in the reasons for judgment of my brother Cartwright, I would allow this appeal and direct that the matter be disposed of in the manner proposed by him.

Appeal dismissed, CARTWRIGHT, RITCHIE and HALL JJ. dissenting.

Solicitor for the appellant: G. Arthur Martin, Toronto.

Solicitor for the respondent: John A. Hoolihan, Toronto.