C - Possession of Counterfeit or Debased Coins

current in these Islands, the law infers this specific purpose from the act Itself subject to the accused negativing that presumption whereas with regard to coins not so lawfully current, the Prosecution must prove this specific purpose by further evidence than the mere inference from the criminal act itself.

Where the ‘actus reus’ consist in uttering or putting off the false coin, Section 170 makes an important distinction. We have said that our law subjects the person maliciously uttering or putting off the false coin to the same punishments as are prescribed against the counterfeiter. But in order that these punishments may apply against such person it is necessary to prove that he received the coin which he uttered or put off knowing the same to be false. Where it is not proved that such person received the counterfeit or debased coins knowing them to be false but it is proved that he knew the coins to be counterfeit or debased at the time of putting them again into circulation, he is only liable to imprisonment for a term from one to three months or to a fine (multa) and, in a minor case, the Court may apply any of the punishments established for contraventions. There is no doubt that the act of a man who, having originally received a false coin in good faith without detecting the falsity, puts it off again is blameworthy and illegal; but it is clearly very much less blameworthy than the act of a man who originally received the coin knowing it to be false, - "e la legge deve compatire la sua condizione e non vedere in lui che un disgraziato, il quale cerca di far cadere su la generalità la perdita onde era esso stesso minacciato"255 . As Roberti puts it, in such case the delinquent is not moved by any desire of unlawful gain: "egli non e’ mosso che dal fine di rifondere su gli altri quel danno del quale egli e' stato già vittima innocente"256 .

C - Possession of Counterfeit or Debased Coins

Neither the French nor the Neapolitan Code contemplated the offence of "possession" of counterfeit coins as an offence in itself independently of any connection with the offence of counterfeiting or of any actual or attempted uttering.

255 Chaveau-Helie, op. cit., Vol. I, p. II, p. 173, n. 591 256 Op. cit., Vol. VI, p. 228, n. 905

In the elaboration of the Italian Code of 1889 the necessity or otherwise of making special provision concerning the offence of possession was considered.

"Mi era proposto il dubbio", it is stated in the Ministerial Report on the final draft, "se per completare la serie di quoti delitti (i. e., delitti di falso nummario) si dovesse prevedere il fatto di chi e’ trovato in possesso di monete […] contraffatte o alterate, sebbene non tia colto, come non e’ facile accada, nell’atto di spenderla". He came to the conclusion that such special provision was not necessary, as the case could be covered by the general provision relating to the offence of "receiving". This, however, does not apply in our law under which the receiving is punishable as an offence ‘per se’ where the thing received derives from any of the crimes mentioned in (a), (b) or (c) of Sect. 348 only257 .

A special provision was, instead, contained in the English Coinage Offences Act, 1861, Section 11 whereof made it a misdemeanour in England for anyone having in his possession or custody three or more pieces of false or counterfeit coins resembling or apparently intended to resemble or pass for any of the King’s current gold or silver coin, knowing the same to be false or counterfeit and with intent to utter or put off the same or any of them. Section 15 made a similar provision with regard to British Copper coin and Section 23 with regard to foreign coin.

The analogous provision of our Code was introduced in 1909 (Section 8 of Ordinance VIII of 1909). In introducing the Bill in the then Council of Government, the Crown Advocate (Sir v. Frendo Azzopardi) said:

"There is one case not provided for in our law with regard to which I now propose to make some addition. I refer to the case of persons who are found in possession of counterfeit or debased coin under circumstances evidencing their intent to utter such coins .... It is the only provision that is wanting in our Criminal Laws in the matter of Coinage Offences. If any of the members of this Council will compare our law with either the Italian Code or the English Statute of 1861 or with other laws on Coinage offences, he will readily see that our laws are not in any way inferior to these laws, and

257 L. Rep., XXXV, P. IV, p. 1016

when the new clause will be included in our Code, the law will be as complete as any other law of the kind”258 .

The added provision is now Section 171 which lays down as follows:

“The punishment mentioned in sub-section (1) or sub-section (2) as the case may be, of the last preceding section diminished by one degree shall be applied to any person who is “found in possession of five or more counterfeit or debased coins in the case of silver coins or of three or more in the case of gold coins, if it is proved that the offender was in possession thereof with intent to utter or put off the name”. It will be observed in the first place that this provision does not mention "copper" coins: which means that the possession of false copper coins, whatever the number or the intent of the possessor, does not in itself constitute the offence.

In the second place, the provision implies a distinction between the case in which the false coins possessed were originally acquired by the possessor in bad faith, i.e., with the knowledge that they were false and the case in which they were originally acquired in good faith, i.e., without such knowledge. In either case, the punishments prescribed respectively against the person uttering or putting off counterfeit or debased coins according as to whether he knew them to be false when he acquired them or became aware of such falsity only afterwards, are diminished by one degree. Obviously, there is less criminality in the mere fact of "possession" than there is in the actual uttering or putting off false coins.

The material element of the crime consists in the actual possession of, at least, five counterfeit or debased silver coins or three counterfeit or debased gold coins. It makes no difference, except for purposes of punishment, whether the coins resembled or were intended to resemble or pass for coins being legal tender in these Islands or foreign coins. Under the Coinage Offences Act, the coin is deemed to be in the "custody or possession" of the offender if he has them in his personal custody or possession, or knowingly or wilfully has them in the actual custody or possession of any other person, or knowingly or wilfully has them in any dwelling-house or other building, lodging, apartment, field or other place, open or enclosed, whether belonging

258 Debates, Vol. XXXIII, c. 146-147

to or occupied by himself or not and whether they be had for his own use or benefit, of for that of another (Section l).

The formal element of the crime consists in the defendant’s knowledge, at the time he is found in possession, that the coin was counterfeit or debased and his intent to utter it or put it off. These, of course, can only be proved by circumstances: as, for instance, by evidence of former utterings259; or by the fact of the defendant’s having in his possession a large quantity of counterfeit coin of like date, and made in the same mould, wrapped up in separate papers, and distributed in different pockets of his dress260 .

Finally, in Rex vs Simler et. already quoted, the point was discussed whether the "possession" and the "uttering" constituted one single offence or two separate offences. The Court made a distinction:

"II possesso e lo spendimento simultaneo di false monete offrono un altro esempio di concorso di delitti materialmente inseparabili nel senso che non si può spendere false monete senza possederle, e quindi il colpevole ujl spaccio non può allo stesso tempo essere accusato di aver posseduto la moneta spesa. Ma quando il delinquente ha già consumato il delitto di spaccio e si trova in possesso di false monete preordinate a futuri spacci non si può ritenere che tra lo spaccio già consumato ed il possesso inteso a futuri spendimenti vi sia un nesso di mezzo a fine: e in tal caso non solo il possesso di false monete e lo spaccio già consumato non costituiscono due reati inseparabili, ira so n nel fatto separati e indipendenti l'uno dell’altro, perchè si avrebbe da una parte uno spendimento già consumato e dell' altra un possesso di false monete preordinate

259 Although in criminal proceedings evidence tending to prove the bad character of the accused is not as a rule admissible, the rule is relaxed when the evidence is intended to prove the ’animus’ or guilty knowledge of the prisoner259; "Evidence as to ‘animus’ or "intent is frequently admissible in criminal proceedings, even though it tends to show that the "accused has become guilty of criminal acts other "than those with which he is charged" (Taylor, ‘On Evidence’, Vol. I, p. 278).

260 Cfr. Archbold, op. cit., p. 1131