Not-Guilty Verdict

Hawke's Bay Herald-Tribune, Issue 23, 11 February 1937, Page 6

Not-Guilty Verdict

JUDGE'S ADVICE IN SMYRK CASE

Suggests Rider to Clear loung Cashier THE JURY RETIRES Xbe opinion that Smyrk should . Mound not giuilty on both charges - of theft of Waipawa Hospital Board ' moneys because, while admittedly fce did wrong in borrowing board moneys, lu did not do so with intent to rob the board, was expressed Pj Mr Justice Ostler in his snmming-up at tbe condUBion of thetrlal of Percy Raeburn Smyrk; Mcretazy of tbe Waipawa Hospital Board. Tha judge expreseed ths view tbat in fairnesa to Pat. Sharpin, I9-year-old youth wbo has been dismissed from his position as casbier because of Me part in" Smyrk 's transactions, tbe jury sbould *dd M rider tbat Sbarpin 's actions had not been dishonourable and tbat tbe muddle be bad got himself into was eauaed by Smyrk borrowing money from ihe imprest account. No Right to Tako Money. Wilbam Henry Rathbone, chairman of tbe Waipawa Hospital Board, said in evidence that: Smyrk bad no right |o taka money for bis own use out of tbe imprest account. Last October Ihe auditor informed witness tbat Smyrk bad drawn bis salary in advance, and winess chastised bim His Honour: Did Smyrk do tbis to your knowledge on any other occasion ? Mr Ratbbone: Yes; in 1929. -Did you ©peak" to bim on tbat oci\attbnf — "I don't know whetber X dfd .or Ididnot." You said in tbe lower Court that you did.- — "If I may say eo, when-I gare my evidence there I wassufferirtg from oye trouble and my nerves were all cpset and 1 don't know what I said. But if I did say that, I'll stick to it." To Mr Harker witness said tbat he bad never bad any trouwle with Smyrk •part from bis drawing bis salary m! •dvance. Audit Inspector's Evidence.

.Evidence xegai'ding ' an inspection of Ihe board' s aceounts early in December last was given by Charles . Gair, audit. inspector. He found the eash of •11 account* to be £55-odd ehort, and •t Ma request Smyrk paid that amount in. On December 22 Sharpin gave wit•ess a statement for audit purposes. In tbis be made a full expianation of Ihe position of tbe eash towards . the end of November. Although of tbe opinion tbat Sharpin bad done wrong so far as his •hare of tbe transactions was concerned, witness did not consider that Sharpin bad bad dishonest inteut. To Mr Harker witness said that be did not consider tbat Sharpin was. the right person for the position of cashier. "As a matter of fact, I took exception to the staffing of the Waipawa Hospital Board 18 months ago," he added. His Honour; Do you meau that you iconsidered tbat Sharpin was too young for the job of casbier? Mr Gair: Yes. Police evidence was given by Detec-tive-Sergeant H. Nuttall, wbo said that, wben questioned, Smyrk admit|ed drawing advances on bis money. He told the detective-sergeant that he knew he was doing wrong to use the board's money to pay a private account, but did not think that he was committing theft. Mr Harker ; Smyrk didn't agree with your legal .opinion that, according to Ihe Crimes Act,. he had . committed Ibeft? Witness: He said: "Well, if you look •t it in that iight it may be so." Beginnlns ^ DeferKc. j ^ "The defence to this rather • oonfitscase is that while there' has .been ■ome muddlement, and while there has been found to be a balance of money ewing by the accused to the board, there has been nothing that constitutes theft," said Mr Harker in his opening address to the jury, in defence of Smyrk. "The reasons are that there was never any definite knowledge on the part of the accused that he actually owed the board anything, but ad soon as his true position was reveaied to him he did everything that a reasonable man could do to make the matter right." Mr Harker' s first witness was Smyrk bimself. He said in evidence that since January, 1936, he had instructed the casbier to pay £25 a month out of bis salary to Mrs Smyrk This arrangement held until December 1 last Gn August 1 last he drew £24 from Sharpin on account of salary to pay Mrs Smyrk. He knew that the Audit Department did not approve of the practice of drawing in advance of salary, as he had been fcold by the audit inspector that it was a foolish thing to do. Lcave Overdue. Accused added that he was entitled 4o four weeks leave every year, but as he had only had 20 weeks leave ever since he had been there (nme years) he felt that he was entitled to have advances on his - salary providing , the money was repaid during tbe same montb. "I understood that Sharpin was going to pay the Marsden School account out of my salary at the end of the month," Smyrk added, "I wa» not worrying about the accomit. I merely paid: 'Pat, c&n you gefc this account i«id * And he said: 'Yes.' " * Jlr Harker: Has any exception ever |een taken by the Audit Department i> the keeping of the petty-cash ' acffe.

Prior to December 1, 1936, did you ever request Sbarpin to give you • a statement of your position? — "Repeatedly. X made special requests after the chairman had told me to cut out the practice of drawing monoy in advance of salary. That was last October." On one occasion last October, he added, he asked Sharpin how his (Smyrk' s) account was, as he wanted money to go to ' Trentham. Sharpin replied that * it was all right. Later on Smyrk wanted £1 and he said: "Can my account stand a draw, Pat?" Sharpin replied that it could. In a Muddle.

, In December, iiowever, Smyxk felt that Sharpin was in a muddle and that he (Smyrk) must be overdrawn. "I must say, however, that at that stage I never had any. qualms about drawing salary in advance duriug the one month," Smyrk added, "because moneys owing me on aceumulated leave would more than cover the amount drawn." When on December 1 Smyrk learncd that Sharpin had met with an accident, he got Sharpin' s keys and, with the matron of the hospital and the accountant, he opened the safe. They examined the contents and found that the lodgment books were there, in addition to certain moneys. He also iound cheques dating back' to early in JSTovember and which were not through the receipt hook. Letters purportiug to contain sums of money, but actually contaimng none, and no rec-eipts written, wer© also found. " A further inspection of the safe reveaied patients' "safe-keepiug" envelopes, open and witHout any uioney in them. Board . correspondence which Smyrk had never seen was also l'ound in. the safe, dating back to the begmnmg of November, 1936, "Cot tho. Wlnd Up."

Smjrk then phoned the chairman and the audit - inspector mentionimr the position at the office. b® 5Ulte 1 got' the wind up when I found the patients' fees letters opened," he went on. "The following morhing I -went'and saw Sharpin,- who told me on his word of honour that the state of affairs was muddle only, and nothing dishonest. I raid: 'All right, Pat; I'll do my best for you.' Then I phoned the audit inspector, asking him to delay his visit, but he said he was already on his way. "I found signed receipts for £63,. as from August 1, 1936, and although Ii felt 1 could not owe the sums I realised that I had had several advances which had not been receipted, and I handed over a sum of money to cover all the notes," witness went on. Although he had no evidence as to what had caused the shortage, he felt that he might have been responsible for whatever muddle Sharpin was ,in, and be.cause he was the chief executive officer of the board -Smyrk felt at was his duty to cover the shortage. Mr. Lusk (oross-examining) : Didn't you. know you were, doing wrong hy using the board's funds-in this wa v? Smyrk: No. It was only an. advance of salary. It is done in practically every office — .

"A Serious Affair." His Honour: It is a very serious affair if in every public office the secretary cnay dip his fingers into the eash. Questioned further by Mr. Liisk, Smyrk said he did not know, when Sharpin cashed the board members' expenses cheque, that the money was going to be used to pay his Marsden School account. Prederick Staines,' eabinet-maker and undertaker, of Waipukurau, ' recalled that on an occasion early last October he overheard Smyrk asking Sharpin if his account was all right.- Sharpin, in replying, said that he thought it was. On a second occasion a similar question put to Sharpin by . Smyrk was overheard by witness, -and Sharpin 's reply was "O.K." Evidence that prior to December last he heard Smyrk asking Sharpin what was the state of his account was given by Jaek Selwyn Knoblock, accountant to the Waipawa Hospital Board. Smyrk made this query" about six times over a period of about two months. Witness added that he was present when the office safe was opened on December 1, and he.*corroborated the evidence of Smyrk as to what was found therein. Mr Lusk: You aTe not making any suggestion of any^iing except muddlement on the part of Sharpin 1 Witness: No. Mr Harker: 1 would like to take this opportunity • of assuring Mr Lusk that the defence wishes to make no other suggestion ehan that Sharpin was in a muddle. Mr Lusk: I am glad to hear that, because it has been worrying me. Jean Fay Fowler, a clerk employcd by the Waipawa Hospital BoaTd at Waipukurau, said in evidence that between early in October and December 1 she heard Smyrk asking Sharpin about five times for a statement as to . his financial position. On the last occasion, December 1. Sharpin appeared to be annoyed and said he wished Smyrk would keep quiet about the statement. Evidence that she also had heard Smyrk asking Sharpin for a statement on several occasions was given by Mary Katherine Polhill. clerk employed by the board Mr Lusk: What sort of statement, rm you think? . Witness: T don't know Mr Harker 's Address. . Mr Harker began his address to the jury when the Court resumed this moming. "On the first count I shall ask his Honour to direct you that, unless you are satisfied that Smyrk converted the money to his own use with intent to deprive the owner (the Waipawa Hospital Board) of it, you cannot convict him," he said. "In regard to the second count, I shall ask his Honour similarly to direct you, because I submit that the Waipawa Hospital Board had no inprest account kept with the Post. Office nv any bank in accordance with the Hospital and Charitable Aid Act, and there-

fore he did not commit a breach of that ( Act. The only account the board had 1 was a petty-cash account kept on th« imprest system." His Honour: 1 see your point. 1 take it that you suggest that when accused borrowed thq, money he had no intention of misappropriating it permanently? Mr Harker;; yoa? Htmew.

i Continuing his address, Mr Harkei k- said he was glad to reiterate his form- . er assurance that the defence had no j intention of putting the blame on to , Sharpin. While admitting that in , what he had done Smyrk had aeted . foolishly, counsel added, Smyrk had not , taken the moneys with criminal intent, and was always under the impression that, if necessary, the borrowings could be replaced by money due to bim for holidays overdue. "Without belabouring the point, which has been put to you so often in this case, the -onus is on the Crown to prove its case, and my submission is, gentlemen, that the Crown has utterly failed to prove that Smyrk took those moneys with criminal intent," counsel continued. ■Which Account? Mr Harker made brief reference to the evidence of those who overheard Smyrk asking Sharpin whether "his account — not the board's account — was holding./' In the middle of October Sharpin told Smyrk that it was, and later on the reply was "O.K." That showed, counsel tsubmitted, that SmyrV was under the impression that he had been getting advances from hia own account (which was being kept by Sharpin) and not from the petty-cash imprest account. "Unless you are satisfied on the evidence that the accused can be convicted on either count, then you must acquit him," Mr Harker said in eonclulsion. "The responsibility is entirely yours, gentlemen. With every confidence , I ask you for an unjqualified verdict of not guilty." "It is a great satisfaction to me — as I know it must be to you — to know that there is no suggestion whatever of any dishonesty on the part of Sharpin, who is a 19-year-old youth," commented Mr Lusk, who rose to address* the jury isolely on this point. In his summing-up, his Honour said that it was quite . true that Sharpin had committed some irregularitie®, but it had not been to cover up his own actions but to accommodate Smyrk. In doing so Sharpin had got into • a muddle, which he frankly admitted in his evidence. "Why was Sharpin acting as the accused 's banker 1" added his Honour. The answer. is obvious: Accused was dipping into the imprest accbunt and Sharpin was trying to keep it right — because he was ■ in charge of that account.".

Judge's Sunsming-ITp Ih his Honour 's opinion it seemed plain that Smyrk must have known that Sharpin was using imprest moneys on Smyrk 's behalf. Accused had said that he was tmaware that Sharpin had used part of the board members' travelling-expenses cheque to pay Smyrk 's Marsden School account. Sharpin appeared -to give his evidence fairly. and truthfully, and he had said that Smyrk -knew that that cheque was being partly used.