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Colonial Cases

Soffer v. Levy, 1932

[immigration]

Soffer v. Levy

Palestine
1932
Source: The Palestine Bulletin, 9 March 1932

 

IGNORANCE OF CALENDAR LEADS TO TROUBLE

 IMMIGRANT GIVES WRONG YEAR OF ENTRY

   An interesting judgment was handed down on March 7 by Mr. Cressall, the British Magistrate, in the case of Yair Ben Yosef Levy, charged with making a false statement in regard to the date of his entry into Palestine for the purpose of obtaining a passport; and Rephael Marsayoff and Abraham Yona, charged with testifying to the false statement.

   Mr. Olshan appeared for the Defendants.

   From the judgment which is given in full below, it will be seen that Mr. Cressall differentiates between wilful intention to deceive and deception through ignorance.  The judgment is as follows:

A.D.S.P. Soffer

vs.

  1. Yair Ben Yosef Levy 2. Repahel Marsayoff 3. Abraham Yona.

   In this case the first named defendant is charged under the Passport Ordinance 1925, with submitting a fakes statement to the Immigration authorities for the purpose of obtaining a passport, in that he stated in his application that he had entered the country in June 1924 in the honest belief that it was, whereas, in truth and in fact, he entered in September 1925.

   The 2nd and 3rd defendants are charged with testifying to this false statement, in that they signed a certificate stating that the above is correct.

   The first named Defendant, Yair Yusef Levy is an illiterate peasant who can neither read nor write the English language.  He admits quite frankly in his evidence that if he made a mistake in his dates it was due to his ignorance of the Gregorian Calendar and he denies that it was done  intentionally.

   The defence of the second and third defendants is briefly, that having known the first defendant for several years and having seen him attending a synagogue in Jerusalem practically every day since 1925, they signed the certificate testifying to his sojourn in the country in the honest belief that it was true and they deny emphatically any intention of deceiving the authorities.

   Now there is no doubt that the information submitted by Yair Ben Yosef is untrue, but I am not convinced after hearing the evidence for the defence, that there was a wilful intention to deceive the authorities.

   Furthermore, having had an opportunity of testing the mental capabilities of the first named defendant in the witness box, I have formed the opinion that with his very limited knowledge he might well have stated an inaccurate date in the honest belief that it was substantially correct.

   With regard to the other two defendants, while I consider that as imprudent men they should have taken more care to substantiate the facts they were asked to certify, I am not satisfied that the evidence discloses that degree of recklessness or wanton disregard for the truth which, in my opinion, is necessary to establish "mens rea" in cases of this nature.

   In my view, the facts of the case are reconcilable with an innocent misrepresentation of a fact without any intention to deceive.  At the same time I must remark that adjudication on charges under the ordinance is made difficult by the fact that the words "false statement" are used without any qualifying language of "amplification" as to the wilfulness thereof.

   It seems to me however that liability under the ordinance must depend on "mens rea" being proved.  I say this because in all cases of criminal fraud, in which the term must be included in false statements, it has been held by a series of familiar decisions that an essential element is the proof that the false statement was made without any real belief in its truth.  In other words, to establish criminal liability there must be evidence from which the Court can find that the false or untrue statement was made deliberately, and with some ulterior motive.

   In the case under review the only evidence submitted by the prosecution is the statement made to the authorities.  The defence have however in my opinion rebutted the presumption of mala fides which aeries, prime facie, from this document, and the case against them is dismissed.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School