Regina v. Goldilocks

By Marcel Strigberger

LEARNED, J. (A Provincial Court Judge exercising his jurisdiction as a Magistrate):

I want to start off by thanking Counsel for their assistance in this matter.

The facts are as follows:

On June 13 last at approximately 9:45 a.m. the staff of the Bay Street branch of the Bank of Metro arrived at work. The staff were all a very congenial group and they would start the morning off by serving hot coffee. Apparently the coffee that morning was very hot and the manager, a Mr. Paul Mall (hereinafter referred to as Papa) suggested that all the staff go for a walk for a while on Bay Street and give the coffee a chance to cool off. He testified that this was a customary practice and that practices such as this one accounted for the high morale of his staff. The accountant, a Mabel Butterfly (hereinafter referred to as Mama) accordingly asked all the customers standing in the queue to please leave.

Everybody vacated the bank at approximately 10:15 a.m. A young new teller, one Barbara Babe (hereinafter referred to as Baby), however, forgot to lock the front door of the bank.

At about 10:40 a.m. the Accused, on her way back from a marathon rock concert, arrived at the bank and went right through the front door. She stood in line for about 10 minutes and when she did not hear anyone say "next please," she became angry and went straight to Papa's office to complain about the slow service. She noticed Papa's coffee on his desk and not having had breakfast that morning she decided to taste it. When she took a sip she found that it was too hot. She then went next door to Mama's office and noticed a cup of coffee there too. She took a sip thereof and found that it was too cold. She made a passing comment about the service in this bank and then she noticed Baby's coffee. The Accused tasted it, found it to be just right and quaffed down the whole thing. I don't think that anything turns on the fact that Baby's coffee was actually Postum (R. v. Dishwater, 33 Criminal Stories 114).

The Accused then returned to Papa's office where she noticed a huge safe against the wall.

It seems that a statement was made to the police about what happened then and a voir dire was held to determine the admissibility of the statement. The Accused testified at the voir dire that the statement was obtained as a result of threats made to her by the interrogating police officer, one Sergeant Wolf, who repeatedly threatened to pay a visit to the grandmother of the Accused and "take care of her."

The Accused was shown an affidavit allegedly sworn by grandma which affidavit said:

I verily believe that Sergeant Wolf will come to my cottage in the woods and take care of me if you do not tell him everything about the bank job.

The Accused indicated that she was worried and accordingly she made a statement.

In cross-examination, Sergeant Wolf conceded that the deponent on that affidavit was one Mrs. R. Hood, someone else's grandmother and not the grandmother of the Accused. The Sergeant indicated the use of trickery was often essential in obtaining voluntary confessions and that the "take care of your grandmother" ploy is very commonly and effectively used by police forces everywhere.

Counsel for the Accused suggests that the statement is not voluntary and therefore inadmissible. I don't know. I feel however that I am bound to follow the practice of the Provincial Court Judges in this jurisdiction and find that the statement was perfectly voluntary and therefore admissible.

Getting back to the safe in Papa's office, the Accused admitted that just for fun she tried to open the safe and that it was much too hard to open. On passing Mama's office she saw a smaller safe next to Mama's desk. There was a sticker on the safe which read "To open me just turn the dial to No. 23." The Accused found that this safe was much too easy to open and accordingly she left Mama's office.

She then spotted a tiny safe on top of Baby's counter. She tried to open it and it took about 10 minutes, which was just fine. She found $88.25 in this safe and she put this money into her purse.

The Accused then wanted to see what it was like working in a bank. She walked into Papa's office and sat down on his big comfortable chair. She found, however, that it did not swivel too easily. She then tried Mama's chair but this chair swivelled too readily causing her to spin and become dizzy. In view of her previous successes at Baby's station she headed straight there and as expected she was not disappointed. Baby's chair swivelled just right. In fact the chair was so comfortable that the Accused fell asleep on it.

At about 11:10 a.m. Papa, Mama and the rest of the staff returned to the bank to drink their coffee. Papa noticed that his coffee was gone. He presumed that it had been so hot that it evaporated. Mama found her coffee much too cold by now and accordingly she made herself a fresh cup. She did not drink it however, as this second cup was now much too hot. She therefore went for another walk on Bay Street.

When Baby arrived at her wicket, she found that her coffee cup and her safe were empty. In addition her chair was now occupied by the Accused, who suddenly woke up and said, "The service here is awful; I am going to take all my business to the Commerce."

Police were called and within minutes Officers Smith and Williams of 24 Division arrested the Accused without a struggle. In addition to the money taken from the safe they found in her purse six packages of nail-polish which apparently came from Powers department store. They also found three cigarette butts containing a plant-like substance later found to be cannabis marijuana.

The Accused was charged with break and enter with intent and possession of a narcotic.

Section 308(b)(ii) of the Merryland Code reads as follows:

A person shall be deemed to have broken and entered if ....he entered without lawful justification or excuse, the proof of which lies upon him, by a permanent or temporary opening.

The Accused says that she entered with lawful justification in that she entered during banking hours for the purposes of using the services of the bank.

The Crown attempted to enter similar fact evidence tending to show that the Accused several years ago entered, without lawful justification, a dwelling house belonging to three bears and ransacked the place.

Defence Counsel argued that this similar fact evidence was irrelevant and inadmissible as all it tended to show was a disposition of the Accused to go into structures which the occupants thereof had temporarily vacated in order to permit food or drink therein to cool off.

The principle of non-admissibility of similar fact evidence was clearly set out by Lord Herschell in D.P.P. v. Wolfman, 12 Criminal Stories 111. In this case the Accused was charged with attempting to blow down the brick house of a little pig and the Crown attempted to introduce evidence that Mr. Wolfman had the propensity to blow down houses belonging to little pigs, having blown down little pigs' houses on two previous occasions. On page 118 His Lordship went on to say:

It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the Accused has been guilty of criminal acts other than those covered in the indictment for the purpose of concluding that he is a person likely from his criminal conduct or character to have committed the offences for which he is being tried.

I agree with my brother Herschell.

I did have some difficulty, however, with the fact that the Accused did take the $88.25 from Baby's safe. The explanation of the Accused was that she was making a withdrawal from her account at the bank. When the Crown put it to her in cross-examination that the balance in her account was only $1.76, she conceded that she was a bit overdrawn.

In cross-examination, however, Papa admitted that the bank charges for an overdraft of this nature would be approximately $10. I find that this amounts to robbery.

Under the circumstances I find that there is a reasonable doubt and I must acquit the Accused of break and enter with intent. I want to say that I am not more favourably disposed toward the Accused merely because she elected to be tried before me, a Provincial Court Judge exercising his jurisdiction as a Magistrate, rather than electing to be tried by a higher Court. It does not matter to me one way or the other and I am not susceptible to flattery.

I do, however, find that the Accused is guilty of possession of a narcotic, not accepting her evidence that the cigarette butts came from Baby's safe. I choose to attribute the high morale of the bank staff to other customs and practices than those suggested by the Accused.

With respect to sentence, submissions were made by Counsel for the Accused. The Court is told that the Accused is 18 years old and that she lives in the Maritimes. She has been in this area for the past couple of months looking for a job. The Court was told she is starting a full-time job tomorrow morning. She is also taking a general evening course at George Brown College. There is no previous record.

With respect to the offence itself, Counsel advises that the Accused acted stupidly and foolishly and she has no idea why she did what she did. I am told that the act of the Accused was out of character and that she would not be appearing before this Court again. The Court is very moved by Counsel's rhetoric. It is not often that the Court is treated with such novel submissions as to sentence. Under the circumstances there will be an absolute discharge.

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© 2007 Marcel Strigberger. This article CANNOT be copied or reproduced in any way without the expressed written consent of the Author.