Practice and Procedure


PUBLISHED July 16, 2003

A conviction for theft, and going equipped for theft, was safe as the golf balls taken were deemed to belong to the club as they had been lost during play by players legitimately on the golf course. The judge's direction could not be faulted.Appeal, with leave of the single judge, against conviction on 24 April 2002 at Leicester Crown Court before HH Judge Bray for: (i) going equipped for theft; and (ii) theft. The defendants ('R' and 'C') were sentenced on the same day, R received a conditional discharge for two years and C received six months' imprisonment. At about midnight on 30 August 2001 a burglar alarm, attached to a police station, went off at a golf club. Police officers attended and found R and C in the car park, dressed in diving suits and holding a sack that contained very wet golf balls. R and C said the balls had been collected from another golf course, a great distance away, and they had not been in the water on this golf course. Following police interviews both were charged. At trial, a golf club professional gave evidence that if a ball was lost the player was deemed to have surrendered it to the club and it became club property. If, whilst playing, a golf ball was found it could be taken because the player was on the course legitimately. R and C made a submission of no case to answer which was rejected by the judge. When summing up the judge referred to the evidence of the club professional and said that he had held his position for 30 years and could be deemed to know the rules. C successfully appealed his sentence in May 2002 and a community punishment was imposed instead. R and C appealed conviction on the grounds that the golf balls were abandoned by the owners and the removal by them could not amount to theft.HELD: (1) There was a considerable trade in balls recovered from lakes and water hazards on golf courses. The trade was often carried on legitimately. (2) The Crown had to establish that the golf balls were "property belonging to another" under s.1 Theft Act 1968. In R v Hibbert and McKiernan (1948) 2 KB 162, Humphries J held that the simple question was "was there evidence to justify a conviction for theft". In the present case there was sufficient evidence to justify the judge's refusal of the submission of no case to answer. (3) The judge told the jury that the prosecution had to prove R and C knew they were not entitled to go onto the course and get the balls. If that was established then dishonesty was established. The directions given were perfectly correct.Appeal dismissed