SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: R v Angus [2000] QCA 29 PARTIES: R v ANGUS, Christopher Carl (appellant) FILE NO/S: CA No 340 of 1999 DC No 104 of 1999 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against conviction District Court at Maroochydore DELIVERED ON: 18 February 2000 DELIVERED AT: Brisbane HEARING DATE: 9 February 2000 JUDGES: ORDER: McMurdo P, McPherson and Pincus JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made Appeal allowed, conviction set aside and verdict of acquittal entered CATCHWORDS: CRIMINAL LAW PARTICULAR OFFENCES LARCENY OR STEALING PARTICULAR MODES LARCENY BY BAILEE CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION PARTICULAR GROUNDS UNREASONABLE OR INSUPPORTABLE VERDICT WHERE APPEAL ALLOWED Nintendo games and control pad hired from video shop not returned on due date found guilty of stealing whether fraudulent conversion Criminal Code (Qld) s 391(1), s 391(2)(a), s 391(6) Fitzgerald (1980) 4 A Crim R 233, considered R v Hally [1962] QdR 214, considered Hansford (1974) 8 SASR 164, considered R v Jackson (1864) 9 Cox CC 505, discussed Lancashire & Yorkshire Railway Co v MacNicoll [1919] 88 LJKB 601, applied R v Pear (1779) 1 Leach 212; 168 ER 209, discussed Robert Wakeman (1912) 8 Cr App R 18, considered

2 2 COUNSEL: SOLICITORS: Mr A Moynihan for the appellant Mr J D Henry for the respondent Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent [1] McMURDO P: I agree with the reasons for judgment of Pincus JA and wish only to make the following additional brief comments. [2] The common law meaning of conversion has been generally adopted as the meaning of "conversion" under the Criminal Code in Queensland: see R v Hally. 1 [3] The prosecution was unable to put forward evidence of any demand made to the appellant to return the Nintendo games and control pad: see Robert Wakeman. 2 Nor, as Pincus JA points out, did the prosecution offer any evidence capable of showing to the requisite standard that the appellant had dealt with the goods, for example, by destroying them or discarding them, by selling or pawning them 3 or by attempting to do so. 4 [4] There are other weaknesses in the prosecution case but the failure to establish fraudulent taking or conversion necessitates the orders proposed by Pincus JA, with which I agree. [5] McPHERSON JA: I agree with Pincus JA. To constitute stealing under s 391(1) of the Criminal Code, there must be either a fraudulent taking or a fraudulent conversion of a thing capable of being stolen. Section 391, which is based to some extent on Stephen's draft Model Code of 1880, was designed to rid the law of many of the artificial distinctions associated with the offence of larceny at common law. The common law offence, which was the criminal analogue of the tort of trespass to goods, was essentially an offence against possession. Originally it could therefore not be committed by a bailee, who by definition was in possession of the goods of another with the consent of that person. This requirement was later circumvented by holding that larceny was committed if there was already an intention on the bailee's part to misappropriate the goods at the time possession was delivered to him. See R v Pear (1779) 1 Leach 212; 168 ER 209. [6] Here the record (ex 1) shows that the goods, which were two electronic games and a control pad, were hired out to the appellant on 15 June 1997, which was the date on which he first came into possession of them with the consent of the complainant. It was not argued that at that date he had already formed a fraudulent intention of misappropriating them. The amended indictment on which the appellant was arraigned alleges not that he stole them on 15 June, but that he stole them on or about 16 June 1997, which was the date on which contractually the goods ought to have been, but were not, returned [1962] QdR 214, 228, adopting Rogers v Arnott [1960] 2 QB 244, (1912) 8 CrAppR 18. R v Price (1913) 9 CrAppR 15. Rogers v Arnott.

3 3 [7] Fraudulent conversion by a bailee was made an offence by statute in England in 1857, which was re-enacted in Queensland in s 3 of The Larceny Act of It used the words "fraudulently take or convert", from which the terms now in s 91(1) of the Code were taken. Not long after the statutory offence was created in England, Martin B in R v Jackson (1864) 9 Cox CC 505 said that, to constitute a conversion under the statute, "some act must be done inconsistent with the purposes of the bailment". The word "purposes" in this context is potentially rather wide, as are expressions such as "dealing in a manner inconsistent with the rights of the true owner". On one view, keeping hired goods beyond the contractual date for their return is capable of being considered an act that is inconsistent with the purposes of the bailment, or with the right of the true owner to have the goods returned to him on that date. [8] What prevents the conviction from being affirmed in this case, however, is the requirement of s 391(1) that the conversion be "fraudulent", which is an expression that is defined in subparas (a) to (f) of s 391(2) of the Code. The only definition capable of being invoked here is that contained in s 391(2)(a), which refers to an intention to permanently deprive the owner of the thing. The problem for the Crown is, as Pincus JA points out in his reasons, that the indictment alleges "on or about 16 June 1997" as the date of the stealing and therefore of the fraudulent conversion of the two games and the control pad. The fact that the goods were not redelivered by 16 June when they were due to be returned would, in a matter like this, not ordinarily, and without more, justify an inference beyond reasonable doubt that the hirer intended to permanently deprive the owner of them. It is a regrettable fact of life that people are not always punctual in returning things borrowed or hired, without necessarily inviting the conclusion that they have fraudulently converted them. [9] The inference that there has been a fraudulent conversion may be strengthened by a refusal, or perhaps even only a failure, to comply with a request for their return: cf Robert Wakeman (1912) 8 Cr App R 18; and no doubt the longer the delay the more readily the inference is capable of being drawn. Here a demand or demands for return were made by telephone to the address or number which the appellant had provided; but there is no evidence that he received or even knew of those demands so as to give rise to an inference of intention under ss 391(2)(a). The averment in the indictment being that the stealing took place on or about 16 June 1997, I am, like Pincus JA, persuaded that failure to return the goods at or about that time was or is, in the case of goods like these, considered in conjunction with the further circumstances revealed in the evidence, not fairly capable of supporting the conclusion that the appellant must at that time have intended to permanently deprive the owner. On that footing the verdict of the jury must be set aside. [10] I agree with the order proposed by Pincus JA. [11] PINCUS JA: This is an appeal against conviction, the appellant having been charged with and convicted of having stolen two Nintendo games and one Nintendo control pad on or about 16 June There was evidence to show that the appellant hired the chattels I have mentioned from a video shop at Coolum on 15 June 1997 on the basis that they would be returned on the following day, 16 June 1997, and that he had never returned them. A contention was made before us that the evidence did not sufficiently prove the identity of the person who hired the

4 4 chattels; it is unnecessary to determine that point. There was adduced some evidence of a phone call to the appellant's number, to ask that the chattels be returned, and of a further such call. As to the former, the person who called was unable to remember to whom she spoke and as to the latter, the evidence was that the caller was told that the appellant had moved to another address. Whether, if he in truth moved away, the chattels were taken to the appellant's new address did not appear, from the evidence. [12] No evidence was called by or on behalf of the appellant. [13] In the learned trial judge's succinct directions to the jury, his Honour told them that they had to be satisfied that the appellant either fraudulently took or fraudulently converted the property in question, intending at that time to permanently deprive the owner of the chattels. These directions were given under s 391(1) and s 391(2)(a) of the Code. The question now is whether it was reasonably open to the jury to be satisfied that there was a fraudulent taking or fraudulent conversion, with the requisite intention. [14] There was certainly evidence of a taking, in that the jury could have inferred from the evidence that it was the appellant who took the chattels away from the video shop when they were hired; but that taking was not shown to have been fraudulent. It could not safely be inferred that at the time the chattels were hired there was an intention to steal them. Counsel for the respondent attempted, before us, to support the conviction on the basis that by retaining possession of them the appellant converted them. [15] Section 391(6) of the Code says: "The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise deals with it by some physical act". A definition originating in a judgment of Atkin J in Lancashire & Yorkshire Railway Co v MacNicoll (1919) 88 LJKB 601 at 605 has been applied in this country to allegations of conversion under the criminal law: Hansford (1974) 8 SASR 164 at 169, 170, 183 and 193; Fitzgerald (1980) 4 ACrimR 233 at 235: "... dealing with goods in a manner inconsistent with the right of the true owner amounts to a conversion, provided that it is also established that there is also an intention on the part of the defendant in so doing to deny the owner's right or to assert a right which is inconsistent with the owner's right". It does not appear to me that keeping possession of hired or borrowed goods beyond the agreed date for return can fit within this definition. [16] Looking at the case more broadly, it would need clear statutory language to establish that merely failing to return hired or borrowed goods on the agreed date is an offence, or prima facie evidence of an offence. The Crown would have it that if the goods are not only held beyond the agreed date, but not returned by the end of a long period of time, that shows an offence has been committed. The answer is that the Code requires not just passive possession, but an act of conversion; that must be or include a physical dealing with the goods and the dealing must in my opinion be such as to be inconsistent with the true owner's rights. Leaving a borrowed book on a shelf is not an act of conversion, no matter how long the book stays there.

5 5 [17] Here, it is possible the chattels were fraudulently converted, for example by being sold or given away, but the failure to return them could not satisfy any rational jury, beyond reasonable doubt, that there must have been a fraudulent conversion. The evidence supported the view that the appellant had behaved wrongly, from the point of view of the civil law, but was inadequate to prove the commission of an offence. [18] I would allow the appeal, set aside the conviction and enter a verdict of acquittal.