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

v.

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.

JUDGMENT - THOMAS J

Judgment delivered 29 September 1995.

I agree with the Reasons of Williams J.

JUDGMENT - G N WILLIAMS J

Judgment delivered 29/09/1995

The appellant appeals against his conviction in the Townsville Magistrates Court of the offence of stealing. When the appeal was listed for hearing he notified the registrar that he would not be appearing, and that he relied on written submissions which he intended placing before the court. On the hearing the court had those written submissions, and heard oral argument from Counsel representing the respondent.

The property, the subject of the charge, was a torch the property of the Commissioner of Police; the words "T/ville Traffic Branch" were engraved on it.

The appellant is a pawnbroker, and operates such a business and a second hand shop in Meenan Street, Garbutt. On 29 April 1994 a Constable Chandler had occasion to visit those premises. Whilst there he overheard a conversation between some customers in the shop concerning a torch; he heard someone say, "It's got Traffic Branch printed on it." At the time he noticed one of the persons in question had a torch in his hand. The appellant walked quickly over to that person saying, "I told you it's not for sale. It's mine." The appellant then took the torch and walked quickly with it towards a back room of the shop. Chandler called out, "Come back here with that torch." The appellant then returned to the front counter and showed Chandler the Maglite metal torch, black in colour, bearing the engraved inscription referred to above and the serial number 3349888.

There followed a conversation between Chandler and the appellant. When asked how long he'd had the torch for the appellant replied, "About six months. I found it in my car." When asked how did it get into his car he replied, "I don't know. My car was open. It was underneath the seat and it rolled out as I drove away." When asked whether he tried to hand the torch in the appellant replied, "No, it was a good torch. I was using it."

In a later interview with a Detective Dolby the appellant said that he found the torch in his car "a couple of months ago". Dolby then said, "Well, why do you still have it?" and the appellant replied, "I forgot about it. It wasn't until the light blew in the other room that I remembered it and started using it."

Sergeant Lewthwaite was the equipment officer at the Townsville Traffic Branch. He gave evidence that on 14 May 1991 three torches were purchased from a supplier in Townsville and issued to the Townsville Traffic Branch, including the one with the serial number 3349888. During an audit of property on 27 January 1992 that torch was present. When the next audit was conducted on 1 April 1993 that torch was missing. His evidence was that enquiries were made in an endeavour to ascertain when the torch was last used but they proved negative. That was the sum total of relevant evidence before the magistrate.

The Notice of Appeal relied on a number of grounds. Firstly it was asserted that the complaint was "duplicitous" because the evidence could be consistent with either stealing or receiving. In the appellant's written submissions it was pointed out, correctly, that there was no evidence of how or when the torch the left the possession of the police. It was then submitted that the possession of the torch by the appellant on 29 April 1994 was not "recent" in relation to when the torch may have last been in the possession of the police. The argument went on to assert that it was equally open to the court to find the appellant guilty of receiving or stealing and the complaint was fundamentally flawed because there was no alternate count.

These submissions are misconceived given the evidence in this case. The prosecution did not, and could not, rely on the so-called doctrine of recent possession given the evidence available to it. There is no evidence the torch was stolen prior to its coming into the appellant's possession. The case as presented to the magistrate, and conceded on the hearing of this appeal, was one of stealing after finding; if that was not established beyond reasonable doubt the appellant was entitled to an acquittal.

The other grounds of appeal raise questions as to whether the evidence was sufficient to prove the elements of the offence of stealing, whether the magistrate was entitled to find, as he did, that the appellant had fraudulently converted the torch after he found it, whether the proper inference to be drawn was that the torch had been abandoned by the complainant, and whether the magistrate was correct in law in holding that in the case of stealing by finding a fraudulent intent was not necessary at the time of the finding of the property. Those questions will be considered in more detail after reviewing the reasoning of the magistrate.

At the outset of his reasons the magistrate recorded that the onus of proof of each element of the offence was upon the prosecution to the standard and beyond reasonable doubt. He then began the critical section of his reasoning by correctly stating that the torch was something capable of being stolen. He went on:

"In taking the torch from his car and using it as a torch, the defendant converted it to his own use. ... In my view, the only real matter in dispute is whether that conversion was fraudulent."

There is nothing objectionable in so formulating the problem provided that "that conversion" includes the possibility that the fraudulent intent arose at some time after the initial taking. As the magistrate recognised, the critical issue was whether there was a fraudulent conversion within Section 391(2) of the Criminal Code. He was not saying that a mere user of the torch was sufficient to constitute the offence; the prosecution had to prove that the use was with a fraudulent intent.

The magistrate then directed his mind to Section 391(5) of the Code which is clearly of critical importance given the factual situation. That paragraph is in these terms:

"When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes, on reasonable grounds, that the owner cannot be discovered."

A likely explanation for the torch leaving the possession of the police is that it was unintentionally left by a police officer at the scene of a traffic incident; in other words it was lost by the police and thereafter came into the possession of the appellant. The magistrate dealt with Section 391(5) in the following way:

"A defendant who converts something he has found with any of those intents [scil. the intentions enumerated in Section 391(2)], may escape having that conversion deemed fraudulent if the evidence discloses that, at the time of the conversion, the person did not know who was the owner and believed on reasonable grounds that the owner could not be discovered. Here, on the evidence and inferences which might possibly drawn from the evidence, I am not satisfied on the balance of probabilities, that this defendant at the time he used this torch, did not know who was the owner and that he believed, on reasonable grounds, that the owner could not be ascertained. Consequently, sub section(5) has no application in this case."

The magistrate clearly erred in placing an onus of proof on the balance of probabilities on the appellant. It was for the prosecution to negative the application of sub section(5) beyond reasonable doubt.

However as there was engraved on the torch words which could only be read as indicating the name of the owner it is difficult to see on the evidence how it could have been reasonably contended that the appellant did not know who was a possible owner. If, for example, a pen is found with a name engraved on it then prima facie the finder would know the name of the owner. But whether that owner could be "discovered" would be another question. That latter issue involves a belief in the mind of the finder, on reasonable grounds, that the owner cannot be discovered. It is difficult to see how, in the absence of evidence as to the actual belief of the finder, one could ever conclude that the belief was held on reasonable grounds. In other words the prosecution evidence prima facie excludes the application of s. 391(5). There would have to be evidence before the court, whether in the form of sworn testimony from the finder or otherwise, as to the actual belief of the finder before consideration could be given to whether or not that belief was reasonable and whether or not sub-section(5) was called into play.

Here there was evidence that the torch bore the inscription "T/ville Traffic Branch" and the appellant must have been aware of that. There was also nothing in the evidence to indicate what his belief was as to the possibility of discovering the owner and therefore there was absolutely no basis on which the court could conclude that the appellant believed, on reasonable grounds, that the owner could not be discovered. Though the magistrate erred in putting an onus on the defendant, the only conclusion open on the evidence before him was that the prosecution had negatived beyond reasonable doubt the application of sub-section(5).

The magistrate went on in his reasons to say:
"There is no evidence the torch had been abandoned by its owner and
there was no evidence before me from which it could be inferred the
defendant honestly and reasonably believed the torch had been
abandoned.

There is no basis upon which those findings can be challenged. Abandonment is a common law concept, and though the term has been used in many cases no one has really set out a clear definition of it. In Donoghue v. Coombe (1987) 45 S.A.S.R 330 von Doussa J said at 333:

"The abandonment of goods will not lightly be inferred. Abandonment occurs where an owner is indifferent to any future asportation of them by others, where the owner leaves them "for anybody to take (them) away": See Williams v. Phillips (1957) 41 Cr App R 5 at 8. It is possible that the circumstances of the finding, and the nature and condition of the goods, is such that a person may reasonably believe that they have been abandoned, yet at the same time, know, or have the means of ascertaining, the identity of the former owner who has abandoned them."

I agree with that formulation of the meaning of abandonment in this context.

There is common law authority for the proposition that there can be no theft of property which has been abandoned by the owner: R. v. Thurborn (1848) 1 Den 387; 169 E.R. 293. That would also be the position under the Code because, pursuant to section 390, before a thing is capable of being stolen it must be "the property of any person"; if property had been truly abandoned it could not be said to be "the property of any person".

In Donoghue v. Coombe von Doussa J emphasised the distinction between a belief that the owner of property cannot be found and a belief that property is abandoned. That distinction may be of importance in some cases, but in most instances, it seems to me, the distinction will be of little moment. In that regard reference should be made to some of the statements in Thurborn, a case involving a bank note. There was, understandably, no name or mark on the bank note which had been accidentally dropped on the road and then picked up by the person ultimately accused of stealing it. There was some discussion as to the difference between abandoned and lost property, and then it was observed at 394 (E.R. 296):

"It appears, however, that goods which do fall within the category of lost goods, and which the taker justly believes to have been lost, may be taken and converted so as to constitute the crime of larceny, when the party finding may be presumed to know the owner of them, or there is any mark upon them, presumably known by him, by which the owner can be ascertained."

Reading the decision as a whole one gets the impression that there would always be difficulty in proving that goods were abandoned, or that they were reasonably believed to have been abandoned, if the goods bore a mark indicating the name of the owner and no attempt was made to contact that person in circumstances where that could readily be done.

In his written submissions the appellant also referred to the proposition that merely giving an untrue account as to how possession was obtained is not sufficient to support a charge of stealing; that is clearly established by Trainer v. The King (1906) 4 C.L.R. 126. But, given the evidence in this case, I cannot see how that proposition avails the appellant, or that the magistrate said anything in his reasoning which was contrary to it.

After referring to the proposition that there is no legal obligation upon a person finding an item of some value to make an enquiry as to its owner, the magistrate went on to express the view that, in the absence of explanation, failure to make an enquiry (particularly where there was some indication of the name of the owner and where objectively that owner could be readily located) is a matter which could be taken into account in discerning the finder's intent. Again I can see no fault in the court reasoning that way. It is clearly consistent with the approach of the New South Wales Court of Criminal Appeal in R. v. MacDonald (1983) 1 N.S.W.L.R. 729.

Ultimately the magistrate came to a conclusion which he expressed as follows:
"In the end, I am satisfied on the whole of the evidence before me, which I
accept beyond reasonable doubt, that the only reasonable hypothesis that
can be drawn from the whole of the evidence before me, which I accept,
is that at the time the defendant converted the torch to his own use, he
intended to permanently deprive the owner of the thing of it, and that the
conversion was there for fraudulent.

The only difficulty with that passage is that the time at which the torch was converted is not clearly defined. Earlier in his reasoning, as noted above, the magistrate found that the taking of the torch from his car and using it as a torch constituted a conversion to the appellant's own use. Throughout the period the torch was in the appellant's possession, as the magistrate found, it could have been returned to its rightful owner in the condition in which it was at the time of the conversion. Further, as noted previously, the mere possession of the torch was not evidence of its fraudulent conversion. It follows that a fraudulent conversion could only be established if the appellant had an intent to permanently deprive the rightful owner of the thing of it - to use the words of section 391(2)(a). That is the intention which the magistrate found the appellant had, but he does not make a precise finding as to when that intention was first formulated. Counsel for the respondent submitted that it was not necessary for the precise moment in time to be isolated; it would be sufficient if the tribunal of fact was satisfied beyond reasonable doubt that at some point of time between the finding of the torch and the date on which the police repossessed it the appellant formed such an intention. Many of the cases indicate that the most critical time is the time of the taking or carrying away of the thing as distinct from the time of finding. In that regard reference can be made to Feist v. Bonython [1944] S.A.S.R. 176, Minigall v. McCammon [1970] S.A.S.R. 82, R. v. MacDonald, and Donoghue v. Coombe. But those cases also support that where there is some mark or other feature on or about the thing which indicates ownership and that is ignored by the finder who does nothing to contact a reasonably obvious possible owner, the court may infer that the initial taking was with a fraudulent intent. Here the evidence is that the appellant did nothing in an attempt to contact the possible owner evidenced by the engraving on the torch.

Subsequent conduct such as making the statement on 29 April 1994, "I told you it's not for sale. It's mine." amounts to an ex post facto admission of the intent at the time the object was taken. In that context reference can also be made to the conduct of the appellant in taking physical possession of the torch after making that statement and carrying it towards the back of the shop away from Constable Chandler.

Given the somewhat unusual circumstances of this case it was sufficient for the magistrate to reach the conclusion that the torch was in the appellant's possession as the result of an intention to permanently deprive the rightful owner it. On the evidence the magistrate was satisfied of that beyond reasonable doubt, and it cannot be said that he was wrong in so concluding.

Notwithstanding the error in his reasoning referred to above the only conclusion open on the evidence was that in fact reached by the magistrate. Ultimately he was satisfied beyond reasonable doubt of the critical elements of the offence, and that conclusion is not vitiated because of the error he made at one point in his reasoning.

The appeal should be dismissed.