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The Application of Presumptions to the Derivative forms of an Offence

Published online by Cambridge University Press:  12 February 2016

S. Z. Feller
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Extract

Both the facts of The State of Israel v. Siman Tov, and the solution adopted in that case by the Supreme Court, raise, it is felt, a number of legal problems which warrant particular attention.

The respondent, Siman Tov, owner of a grocer's shop, sold goods worth IL. 6,000 on credit to someone called Pressman. When Siman Tov requested payment from Pressman, the latter offered him U.S. $4,000 which Siman Tov was to deposit with a third party of his own choice in return for a loan of IL. 12,000, on the understanding that Siman Tov would deduct the money owing to him from this last sum and hand over the balance of IL. 6,000 to Pressman. Siman Tov accepted the offer and received from Pressman a package containing 4,000 ostensibly genuine dollar banknotes. He then approached a neighbour, Binat, who agreed to accept the dollars as security for a loan of the equivalent sum in Israeli pounds. On examining the package and finding that the dollars were counterfeit, Binat returned them to Siman Tov and refused to go on with the transaction. Siman Tov for his part had believed the notes to be genuine until Binat's disclosure.

Type
Articles
Information
Israel Law Review , Volume 3 , Issue 4 , October 1968 , pp. 562 - 578
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1968

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References

1 (1967) 21 (I) P.D. 340; hereafter referred to as “the Siman Tov case”.

2 “3. (1) No person other than an authorized dealer shall buy, borrow or otherwise obtain possession of foreign currency or gold from, or sell, lend or otherwise transfer possession of foreign currency or gold to any person not being an authorized dealer, except with the permission of the Minister of Finance or a person appointed by him.

(2) In this Regulation the expression ‘authorized dealer’ means, in relation to any transaction in respect of foreign currency, a person authorized by or on behalf of the Minister of Finance to deal in foreign currency, or, in relation to any transaction in respect of gold, a person authorized by or on behalf of the Minister of Finance to deal in gold.”

3 “10. (3) A person contravening any of these Regulations or any order or direction thereunder shall be liable to imprisonment for a term not exceeding three years, or to a fine, or to both such penalties. …”

4 Under sec. 29(d) of the Criminal Code Ordinance, 1936, a person who attempts to commit any of a certain group of offences, among them the contravention of reg. 3 of the Finance Regulations, is liable “to a punishment not exceeding half of the greatest punishment to which the perpetrator of the offence is liable on conviction”.

5 Siman Tov v. State of Israel, 55 P.M. 74.

6 “30. (1) A person is deemed to attempt to commit an offence when he begins to put his intention to commit the offence into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to. commit the offence.

(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from further prosecution of his intention.

(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.”

7 “ ‘Foreign currency’ means any currency other than Israel currency and includes notes which have at any time been legal tender in any territory outside Israel.”

8 The Siman Tov case, at 342.

9 Ibid.

10 See reg. 3(1) of the Defence (Finance) Regulations, 1941, n. 2 above.

11 The wording of reg. 10B is as follows:

“10B. (1) In any prosecution of any person under these Regulations upon a charge of the doing of any act without being in possession of any permission, consent, licence, authority or exemption entitling him so to do, the onus shall be on such person to prove that he is the holder of such permission, consent, licence, authority or exemption.

(2) A person, other than an authorized dealer, in whose possession any foreign currency, or bill of exchange or promissory note payable in foreign currency, are found, and who is prosecuted for an offence under Regulation 3 or 6 in respect of such currency, bill or note, shall be considered guilty of such offence unless he proves to the satisfaction of the Court that he has not committed it.”

12 The Siman Tov case, at 343.

13 How far this presumption binds the judge is another matter; the answer would appear to follow from its being only a presumption of fact.

14 Abu Gosh v. A.G. (1950) 7 P.E. 337, 343.

15 Mandrosan v. A.G. (1954) 8 P.D. 930, 933

16 Section 3 of the Penal Law Amendment (Bigamy) Law, 1959.

17 Sec. 9 stipulates that:

“So long as the contrary is not proved—

(1) a person charged under section 6 or 8 is deemed to have known that the person receiving shelter or other aid was an infiltrator and was in Israel unlawfully;

(2) a person charged under section 7 is deemed to have known that the person with whom he traded was an infiltrator and was in Israel unlawfully.”

18 Chapter XVII of the Criminal Code Ordinance, 1936.

19 It is difficult to understand why there should be a distinction between cases where the foreign currency is proved to have been found in the possession of the accused and all the other cases where, despite the fact that the conduct constituting the offence is proved, the prosecution is required to show that the second person—that is, the person with whom the transaction was carried out—was not an authorized dealer. But this is a matter de lege ferenda.

20 See n. 7 above.

21 Provided, always, that it is accompanied by a belief that the currency is genuine.

22 That is to say the inchoate aspects of the offence and the forms of participation in its commission.

23 This Section appears in Chapter Six: Appeal, and provides:

“The Court may, if it considers it necessary so to do in the interest of justice, take evidence or direct the court below to take such evidence as it may direct.”

24 Na'aman v. A.G. and counter-appeal (1966) 20 (IV) P.D. 187.

25 Na'aman v. A.G. (1965) 19 (III) P.D. 118.

26 It is not superfluous to mention the punishment imposed on Na'aman in that case; imprisonment for a period of one year, of which nine months were a conditional sentence, and a fine of 1,000 Israeli pounds, or three months' imprisonment in lieu of fine.

27 Sec. 166 of the Criminal Procedure Law, 1965.

28 Sec. 196, ibid.

29 Shefer v. A.G. (1961) 15 P.D. 263 at 269; hereafter the Shefer case.

30 Ibid. at 271. The Deputy President did indeed hold that this power must be exercised with care. But the only significance of this reservation is, it is submitted, to ensure the rights of the parties to cross-examine, bring evidence, rebut the additional evidence brought and have their arguments heard on the new factual and legal situation, where that has changed as a result of the hearing of the additional evidence.

31 On this point see also Harnon, E., “Criminal Procedure in Israel—Some Comparative Aspects” (1967) 115 University of Penn. L.R. 1091, 1094–1095Google Scholar.

32 See: Harnon, E. “Summoning Witnesses on the Initiative of the Court” (1963) 19 HaPraklit 246.Google Scholar

See, as well, the Shefer case, where the English law on the subject is also reviewed.

33 The Shefer case, at pp. 275–77.

34 Harnon, “Summoning Witnesses …” cit., n. 32, at 251.

35 In the words of Witkon J. in the Shefer case, at 276.

36 The matter is beyond doubt; otherwise the accused would have argued before the two lower courts that he received the banknotes from, or passed them on to, an authorized dealer and that the transaction was therefore lawful.