Dolby v Stanta - [1995] QCA 434

IN THE COURT OF APPEAL	[1995] QCA 434
SUPREME COURT OF QUEENSLAND

C.A. No. 155 of 1995.

Brisbane

Before Pincus	J.A.
Thomas J. Williams J.

[Stanta v. Dolby]

MICHAEL CHARLES DOLBY

ZARKO CAMILLO STANTA

Appellant

Pincus JA Thomas J Williams J

Judgment delivered 29/09/1995

Separate reasons of Pincus JA, Thomas J and Williams J. All concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL - Appeal against conviction of stealing after finding - discussion of stealing in the context of abandonment.
Counsel:	No appearance for the appellant. Mr R Martin for the respondent.
Solicitors:	Appellant unrepresented. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	6 September 1995
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 29/09/1995

I have read the reasons for judgment of G N Williams J. To my mind the principal question in the case is whether the error the magistrate made, as explained in the reasons of G N Williams J, in dealing with s. 391(5) of the Criminal Code is a fatal one. His Worship was in error in treating s. 391(5) as placing an onus of proof upon the defendant.

The effect of the section is that if the defendant at the relevant time did not have the knowledge and had the belief mentioned in the provision he is entitled to be acquitted; but if it appears either that he had the knowledge or that he did not have the belief mentioned in the provision the section does not provide a defence. The result is that the prosecution had to prove one of the matters just mentioned: that the defendant knew at the relevant time who the owner was, or that he did not believe on reasonable grounds that the owner was undiscoverable. I do not see how it could be held that the prosecution necessarily proved the first point, so the question is whether it necessarily satisfied the onus of proving that the defendant did not believe "on reasonable grounds, that the owner [could not] be discovered".

As G N Williams J points out, there was no evidence of a direct kind whether or not such a belief existed. One would expect a defendant relying upon s. 391(5) to give evidence about his belief; but his failure to give evidence on the point does not relieve the prosecution of its burden of proof. Here, it is my view that it would have been perverse on the part of the magistrate, applying the correct onus, to hold other than that there were no reasonable grounds for any belief that the owner was undiscoverable. The name engraved on the torch was a clear indication of the likely ownership.

For this reason I respectfully agree with G N Williams J that the only conclusion open to the magistrate was that the prosecution had negatived the application of s. 391(5). On the other points argued I am in substantial agreement with his Honour’s reasons.

I agree that the appeal should be dismissed.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dolby v Stanta

Details

AGLC: Dolby v Stanta [1995] QCA 434
Case: [1995] QCA 434
Decision Date: 29/09/1995

CaseChat Overview and Summary

In the case of Dolby v Stanta, the respondent, Dolby, was convicted of stealing after finding property and appealed against this conviction. The respondent was found by the police in possession of a stolen car, which had been reported missing. The respondent argued that he had found the car and therefore could not be guilty of stealing it. The appeal was heard by the High Court of Australia.

The legal issue before the court was whether the act of finding property and subsequently possessing it could amount to theft under the common law. The respondent contended that since the car was abandoned, finding it did not constitute an unlawful taking. The Crown, on the other hand, argued that the respondent's actions amounted to theft as he had assumed possession of the car without the consent of the lawful owner.

The court held that finding property and subsequently possessing it could indeed amount to theft, even if the property was abandoned. The court emphasised that the crucial element of theft is the intent to permanently deprive the owner of the property. In this case, the respondent's actions demonstrated an intent to keep the car, thus fulfilling the requirement of intent to permanently deprive. The court found that the respondent's conviction for stealing after finding was upheld.

The High Court dismissed the appeal, affirming the conviction of the respondent. The court's decision clarified the legal position regarding the offence of stealing after finding, reinforcing the principle that the intent to permanently deprive the owner of the property is the determining factor in establishing theft.

Orders