Delk v The Queen

[2000] HCATrans 22

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S116 of 1999

B e t w e e n -

FREDERICK ALVIN DELK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2000, AT 2.35 PM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   If the Court pleases, I appear with MR G.P. CRADDOCK for the applicant.  (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR R.D. ELLIS:   I appear for the Crown.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GUMMOW J:   An extension of time is required.  Is that opposed by the prosecution?

MR ELLIS:   No, your Honour.

GUMMOW J:   Yes, Mr Basten.

MR BASTEN:   Your Honours, the case involves the correct limits of the crime of stealing from the person of another.  May I take your Honours straight to the passage in the appeal papers in the judgment of the Court of Appeal, Justice Smart, at page 18, particularly paragraph 22.  The Court of Criminal Appeal held that the applicant was correctly convicted not because his conduct involved stealing from the person of another but because “the taking was comparable to a taking from the person.”  With respect, that terminology accurately reflects the result but it demonstrates the adoption of an approach which is not permissible, in our submission, in the criminal law.

The matter is an important one, your Honours, because the effect of the Court of Criminal Appeal finding is that it is sufficient for the property, as in robbery, to be merely in the presence of the victim and not on the person of another.

GUMMOW J:   It says “from the person”.

MR BASTEN:   It has to be taken from the person.

GUMMOW J:   The section says “from”.

MR BASTEN:   That is so.  I interpolated that as meaning that the property was on or about the person of another in the ordinary meaning of those words.  If their Honours’ conclusion is correct, this could lead to many shoplifting offences being elevated from simple larcenies, subject to a maximum penalty of five years imprisonment and usually dealt with summarily, to serious indictable offences carrying a maximum penalty of 14 years.

GUMMOW J:   Wait a minute.  We are talking about section 95, are we not?

MR BASTEN:   We are talking about sections 94 and 95 in substance, your Honour.  Section 95 is the aggravated form which carries 20 years.  But the approach adopted by the court was that because the common law offence of robbery extended to an asportation of property from the presence of the victim, so should the offence of stealing from the person of another.  The ordinary meaning of the words “stealing from the person of another” is stealing a thing which is on or about the body of another, in our submission.  With the exception of the South Australian case of Stewart to which we refer in the submissions, there is no authority for the proposition that the offence is satisfied by stealing a thing from the presence of another.

GUMMOW J:   Smith v Desmond, which is that House of Lords case, involved a statutory offence, did it?

MR BASTEN:   It did involve an offence which was within the statute of the time, yes, your Honour, robbery, which is defined in terms which require of course one to look to the common law principles, as their Lordships did.  The Court of Criminal Appeal sought to derive some support for its approach from the opinions delivered in Smith v Desmond but the dicta relied on in fact, in our submission, give no support to the conclusion they sought to derive and indicate why the contrary conclusion is preferable.  In addition, although their Honours did not advert to it, Lord Morris expressly suggested that the separate offence of stealing from the person did not attract the construction that applied in relation to robbery.

May I take your Honours very briefly to Smith v Desmond to establish those two propositions.  At page 979C there is a passage which was extracted by Justice Smart, and I will not take your Honours to that.  His Lordship then referred to a number of authorities, each of which explains the extension of the doctrine in relation to robbery not by saying that robbery is stealing from the person but by making the proposition clear that robbery extends beyond stealing from the person to taking something in the presence of the person.  May I simply refer your Honours to the bottom of page 979, about five lines up where there is an extract from Staunford:

“if one shall take my goods openly against my will, in any place wherein I am present, though the goods be not upon my person at all”:  and the comment is added “which seemeth to be good reason, seeing that in both cases, the loss is the same, and the fear is alike.”

I will come back to the concept of “fear” if I may.  Similarly, at page 980C to D at the end of the first full paragraph, an extract from Dalton’s Country Justice.  I take your Honours only to the last two lines:

for the loss “is the same, and the fear alike, as though it had been from my person.”

HAYNE J:   That stands in contrast with Coke’s Institute quoted next.

MR BASTEN:   There are a number of other ways of putting it, your Honour.  I simply seek to make the case that there is a reasonable basis for saying that their Honours were wrong in the way they approached it.  At the top of page 981, Hale says at about the third line on the page:

it is not always necessary that in robbery there should be strictly a taking from the person, “but it sufficeth if it be in his presence … in case it be done with a putting in fear –

Of course, the “with a putting in fear” is the element which justifies that approach in relation to robbery and makes the distinction which is apparently drawn in the present case a different matter.  May I take your Honours to the express passage.  At page 983 at the bottom of the page, last paragraph, Lord Morris addresses the question of the case of Reg v Selway and Wynn.  I need not take your Honours to it but at the end of the discussion, at 984C his Lordship says:

I do not find the report at all helpful and particularly because, so far as the offence of larceny from the person is concerned…..the words “from the person of another” are usually understood in their ordinary and not in some extended sense.

His Lordship then goes back to the case of robbery.  That passage was not adverted to in the Court of Criminal Appeal and, with respect, supports the approach which we seek to put to this Court.  Lord Pearce, in whose opinion Lord Donovan agreed, also makes a similar point in a passage which is extracted in the judgment of Justice Smart at page 16 at line 13, the second paragraph of the extract:

Nevertheless, from early times the crime –

that is robbery –

was constructively extended to cover cases where the goods were not actually stolen from the victim’s person.  The real nature of the crime, stealing by violence, was the same whether the goods were on the victim’s person or in his presence.”

With respect, in relation to the statutory provision, we say it is no longer the role of the courts to constructively extend criminal offences.  Significantly, the justification for such an extension of plain language is missing.  The aggravating feature of robbery beyond simple larceny is violence or putting the victim in fear.  Absent that element, stealing from the person nevertheless involves a serious invasion of personal privacy which is an aggravating element in its own right.

HAYNE J:   What are we to make of the fact that what is described as the major Australian authority, Stewart, has stood since 1929?

GUMMOW J:   And itself had a fairly detailed analysis of the evolution of the statutes in this area.

MR BASTEN:   It did, your Honour.  It appears to be the only other appellate case reported in which this matter has been considered.  It is criticised by Williams and Weinberg who consider it wrong in the only text we have found which deals with this matter.  The facts of that case constituted a robbery, as was clearly conceded and adverted to in the first passage in the judgment at page 502 at about point 3, and in truth that fact distracts, we would say, consideration from the real effect of the extended definition.  In short, the facts that fall within a definition of robbery invite one not to consider the very case where there is not an overlap, namely, where the goods are taken from the presence of a person but without putting anyone in fear in the sense required by robbery.

Thirdly, we say that at 504 at about point 4, in seeking to derive from a section of the 1827 statute the principle that there was a congruence, at least in relation to penalty, of these offences by that date misread section 6 of the 1827 statute.  We have provided your Honours with a copy of that.  Robbery was treated as a separate offence punishable by death.  It is clear that stealing from the person was not grouped together with robbery but was separately considered.  Certainly when one considers the proper form of the New South Wales provisions in section 94, for example, it is clear that there are two elements as set out in the first page of those additional materials that your Honours, I hope, have, namely:

Whosoever:

robs or assaults with intent to rob any person, or

steals any chattel, money, or valuable security from the person of another -

There is a distinction drawn between the offence of robbery and the offence of stealing from a person.  If the Court of Criminal Appeal in South Australia and in this State were correct, what one would have would be two offences with the same penalty but, in the case of stealing from the person of another where the material is merely in the presence of the other, a robbery without fear.  That is an extension of the law, we say, which is unsatisfactory and which is an incorrect reading of the statute.

GUMMOW J:   At the end of the day, what you seek if successful is an order that would substitute a verdict of larceny, is that right?

MR BASTEN:   That is so, as could have been done in the Court of Criminal Appeal pursuant to section 7(2) of the Criminal Appeal Act.

HAYNE J:   The sentence having been served, what is the core of the miscarriage of justice that you say has occurred?  There should be a substituted offence, the sentence has been served ‑ ‑ ‑

MR BASTEN:   Because there would in any event have been no challenge to the sentence.  There was not in the Court of Criminal Appeal.  The matter, in so far as it is important for the individual, is the difference between having a conviction for an offence carrying five years maximum penalty and a conviction for an offence carrying triple that maximum.  It is a serious matter in terms of the way the matter might be viewed subsequently.  In any event we say, your Honours, that there are public interest considerations, as there must be to attend a special leave application, which make the matter an appropriate one in which to give consideration to the issue of law, albeit that the result may have a limited consequence for the individual concerned.

GUMMOW J:   Very limited as far as I am concerned.

MR BASTEN:   We would not, I would think, your Honour, be unable to bring an application on a conviction appeal simply because the sentence was for some reason otherwise appropriate.  It would be nevertheless ‑ ‑ ‑

GUMMOW J:   What was the sentence here?

MR BASTEN:   Sixteen months fixed term, which was a relatively ‑ ‑ ‑

GUMMOW J:   You cannot say that would have been out of line for a conviction on larceny, can you?

MR BASTEN:   No, that is right and, being a short sentence, it was inevitably served almost before the appeal process to the Court of Criminal Appeal had been completed in the circumstances of the case.  Your Honours, those are the submissions in support of the application.

GUMMOW J:   Thank you, Mr Basten.  Yes, Mr Ellis.

MR ELLIS:   Thank you, your Honour.  Firstly, the only two States in Australia which have similar legislation are New South Wales and South Australia.  The authorities clearly now in both of those States are consistent with one another.  Indeed, in relation to South Australian cases, your Honour has pointed out the South Australian authority has stood for 70 years without any apparent conflict.  There are in fact, no matter how one looks at it or no matter what the definition of “from the person”, two offences under section 94, one of which involves robbery with fear, the other which does not include fear but certainly includes a stealing from the person.

So that situation will continue to be so, no matter what definition is given to “from the person”.  It serves a practical purpose in the sense that it fulfils a function where perhaps, as was the case here, the violence may come after the actual taking and therefore does not constitute robbery, so it fits in between what might be said to be a shoplifting example or a straight theft, a larceny, then into a situation where the article is obtained without putting someone in fear but nevertheless taken from them, as it were, into then the third proposition where the article is taken by reason of fear or violence.

HAYNE J:   It may or may not matter much, but is it an offence charged often?

MR ELLIS:   Certainly when one looks at larceny, the answer would be no.  Of the three offences it would be the least charged, but I would not say that it was not charged reasonably frequently.  It is not infrequent anyway.

HAYNE J:   Yes.

MR ELLIS:   It is an offence that most people practising within the area would have had some dealings with over the years.  It generally has fulfilled that category where there is difficulty with the question of the theft or where, for instance, there might have been violence but not for the purpose of the theft.  The thieving may have been an afterthought, so in that case it does cause problems in a robbery context.

HAYNE J:   The violence is the afterthought.

MR ELLIS:   Yes.  The Crown would say that there has been no miscarriage here in any event because it would not really matter which combination of offences had been charged.  The criminality was in essence covered by the factual situation which was not in issue and the penalty is likely to have been the same, whether it is as a result of a combination of offences or one offence alone.  The sentence has been served and I do not even know that Mr Delk is still in the country.  He is not an Australian citizen.  What impact the difference ‑ ‑ ‑

HAYNE J:   He is here by his counsel, Mr Ellis.  That is enough, I would have thought.

MR ELLIS:   I was thinking more of any future impact to him in terms of the difference between five years and 14 years.  There is a difference clearly, but whether it is significant and whether it provides a significant or sufficient basis for this Court to intervene is another matter.  The Crown would say that it is not really a matter of artificially looking necessarily at the evolution of the common law.  If one looks at the particular statute and its wording and then – it does not seem to be logical to have two different interpretations or two different meanings to the “taking from the person”.  Taking from the person is an element of robbery.  Why should there be a different definition for the same element in relation to the “steal from the person”?

There are a number of examples, I think, which were given.  I do not think that the Court of Criminal Appeal was indicating that, for instance, all articles in a supermarket were under the care of some person on the counter, the serving ladies, but the court said there was the immediate and personal presence, care and protection.  In this case it certainly was a case of care and protection.  The jewellery was placed on the counter.  As I think his Honour Mr Justice Smart said, what would have been the situation if the jewellery was on a tray, the tray which in turn was held?  If we are looking strictly at an interpretation which requires some physical attachment, where do you actually draw that line?  If a person has a wad of money in their hand and is casually flipping it into the air, it is snatched whilst it is still in the air, therefore it is not a theft from the person, as distinct from if they are a little late and they actually catch it when it is down in the hand, it then becomes theft from the person.

No matter what definition is given, there will be a factual area of flux which will be a matter for a tribunal of fact to determine in any given case as to whether or not something falls within the jurisdiction.  The Crown would say that the type of definition which exists for robbery, which was the situation in Desmond’s Case, equally pertains to the “steal from the person” and does not mean that it moves into any possible property – or into the shoplifting environment.  That is, the Crown would say, the situation where there is no presence and certainly no personal presence, care and control or protection of the item.

The Crown says that the reasoning in Stewart’s Case was correct, as was the reasoning by the court in New South Wales, and that there is no basis upon which this matter would properly be a matter which would

receive special leave from this Court.  Unless there is some other particular area, that is all I have to say.

GUMMOW J:   Thank you, Mr Ellis.  Mr Basten, do you wish to add anything in reply?

MR BASTEN:   Just very briefly.  The policy factors to which my friend refers may be important in relation to an amendment of the express terms of the statute.  The New South Wales legislature has used words which have an obvious and ordinary meaning and they should be applied.  If the goods are not on the person but in his or her presence and when no fear has been aroused, the test is critical.  It is a test which will arise in many, many cases, one would think.  My friend’s example of the supermarket may or may not be apt in that regard.  The issue is one of some concern.  It goes to the proper construction of the criminal laws of New South Wales and the ACT and South Australia and it defines a critical difference between the laws in those parts of the country and the Code States.  With respect, it would be an appropriate matter for this Court to consider.

GUMMOW J:   Thank you.  We will take a short adjournment.

AT 2.57 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.58 PM:

GUMMOW J:   The relief which the applicant seeks involves the substitution of a conviction for larceny in place of the conviction under section 95 of the New South Wales Crimes Act 1900.  The sentence on that conviction has been served.  The sentence which would follow a conviction for larceny would, it is conceded, be within a permissible range, which includes the sentence already served.  In the circumstances, there has been no substantial miscarriage of justice and this is not a suitable case for the grant of special leave.  Accordingly, special leave is refused.

Call the last matter in the list.

AT 2.59 PM THE MATTER WAS CONCLUDED