Etchell v Groves

[1990] TASSC 155

Serial No B78/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Etchell v Groves [1990] TASSC 155; B78/1990

PARTIES:  ETCHELL, I D
  v
  GROVES P J

FILE NO/S:  LCA 19/1990
DELIVERED ON:  13 December 1990
JUDGMENT OF:  Zeeman J

Judgment Number:  B78/1990
Number of paragraphs:  22

Serial No B78/1990
List "B"
File No LCA 19/1990

I D ETCHELL v P J GROVES

REASONS FOR JUDGMENT  ZEEMAN J

13 December 1990

1. By a complaint made by the respondent, the applicant was charged with stealing contrary to s234 of the Criminal Code. The complaint alleged that on or about 14 September 1989 at Launceston the applicant stole two tractor tyres to a value of $130.00, the property of the Launceston City Council. The matter came before a magistrate in the Court of Petty Sessions at Launceston. The applicant pleaded not guilty. After a hearing extending over several days, the learned magistrate found the complaint proved, but then dismissed it in the exercise of his discretion under s7(1) of the Probation of Offenders Act 1973.

1. The applicant seeks to review the magistrate's finding that he found the complaint proved (which finding appears to fall within the definition of "order" appearing in s116 of the Justices Act 1959) upon the following grounds:

"1The learned magistrate erred in law in finding the charge proven when on the evidence accepted by him there was no evidence that the defendant took or converted the said tyres without the consent of the owner thereof.

2The learned magistrate erred in law in finding the charge proven after having found that the defendant took the said tyres with the consent of Phillip Charles Staggoll (sic), the said Phillip Charles Staggoll (sic) on the evidence before the learned magistrate having the authority of the owner to consent on its behalf to the taking or other disposal of the said tyres.

3Alternatively, the learned magistrate erred in law in not holding that the consent or permission of the said Phillip Charles Staggoll (sic) to take the said tyres was the consent of the owner thereof."

1. The undisputed evidence before the magistrate was that the two tyres, the subject of the complaint, had been removed from a tractor, the property of the Corporation of the City of Launceston, and then retained at its Newstead Depot. The removal of the tyres occurred when one of those tyres was severely damaged. The tyres remained at the depot for some time. Some time later, they were taken by the applicant, who was a trades' assistant employed by the Corporation at that depot, to the premises of Speedy Tyres Pty Ltd in Launceston with the intention that that company purchase the same and pay over the purchase price to be applied towards the funds of the social club conducted by the Corporation's employees at Newstead and in particular to be utilized towards the purchase of refreshments for a staff Christmas function. It was also undisputed that the Corporation's senior employee at the Newstead Depot was Mr Stagoll and that he performed a number of supervisory functions and exercised some discretionary judgments in the course of his employment. The next most senior employee at the depot was a Mr Apted.

1. It is implicit from the reasons expressed by the learned magistrate that he dealt with this matter by way of applying the provisions of s226 of the Criminal Code and that he did not have regard to any of the special cases of stealing referred to in Chapter XXIV. This is of some significance, as counsel for the respondent submitted that in the event that I were to conclude that the learned magistrate was in error in finding that there had been a stealing upon the basis that the ingredients referred to in s226(1) had been made out, then in any event s229(1) ought to be considered.

1. Counsel for the applicant conceded that his attack upon the learned magistrate's conclusions was limited to those expressing a view that a lack of consent of the owner had been established. He conceded that there was no issue as to the other ingredients referred to in s226(1) and that the learned magistrate's conclusions, either express or implied, that they had been established could not be disturbed.

1. In essence, the argument for the applicant was as follows:

(a)The relevant tyres were in the possession or control of Mr Stagoll and he therefore fell within the definition of "owner" contained in s226(2)(b).

(b)Mr Stagoll consented to the applicant removing the tyres from the Newstead Depot.

(c)That that consent was given in order to give effect to a purpose approved of by Mr Stagoll, namely that the tyres be sold to Speedy Tyres Pty Ltd and that the proceeds of sale be used for the purposes to which I have referred.

1. The learned magistrate expressly found that the applicant had permission to take the two tyres to Speedy Tyres Pty Ltd He appears to have come to that conclusion by reason of having accepted the evidence of Mr Apted. Specifically, the learned magistrate said this:

"Now I found Mr Apted a most revealing witness, I found him essentially very forthright, but on one occasion that he wasn't being entirely candid, his demeanour gave him away and in fact I was left with the impression to use the vernacular that one could read him like a book. I'm confident that I can rely upon his evidence. Now where there is a conflict between Mr Apted's evidence and the evidence of Mr Stagoll or any other witness, I accept his evidence. I did not find Mr Stagoll a very reliable witness. But in saying all that accepting that Mr Etchell had permission to take the two tractor tyres to Speedy Tyres, I was not impressed with Mr Etchell's protestations of honesty either, even accepting it goes on, and employees separately or collectively make value judgments about their employer's property and determine its fate which suits their own interests they nevertheless know to take the employer's property is dishonest which such rationalisations as group decisions or if we took it to the tip or someone else would get it cannot erode."

1. Mr Apted gave the following evidence:

"QAlright. Could you outline what happened please, how you witnessed that?

AMr Badkin arrived to pick up some second–hand tyres for recapping or whatever the purpose was. I walked out of the workshop there was Mr Badkin, Ian.

QWhen you say Ian, do you mean Ian Etchell?

AIan Etchell sorry, and one other person, I can't think who it was. I can't remember who it was at the moment probably Dale Swinton, they were loading the tyres into Stan's vehicle, I walked out mainly to speak to Stan because I hadn't seen Stan for some years, when he worked at Tas. Tyres and while I was talking to him, Phil Stagoll arrived and we were all talking to Stan.

QDo you recall what Mr Stagoll said when he approached or if he said anything?

ANo Mr Badkin said that he could find a home for the two tractor tyres that apparently had been discussed prior to me getting there.

QYes?

AAnd he said that he could find a home for them and it was either Ian or Phillip Stagoll said that well if a home could be found for them they could go towards the drinks at the end of the year for the boys.

QDo you recall whether it was Mr Stagoll or Mr Etchell who said that, to mention that about drinks at the end of the year for the boys?

ANo I couldn't be sure on that.

QAnd can you be certain as to whether both those persons were present at that time?

AYes, they were definitely both present.

QAnd was Mr Badkin definitely present at that time too?

AHe was.

QDid you hear any further conversation?

ANo they just said that after the comment, talk of finding a home for them I walked away back into the workshop."

1. Mr Badkin was the employee of Speedy Tyres Pty Ltd who had immediate contact with the Corporation's employees in relation to the collection of tyres which were to be retreaded or recapped by Speedy Tyres.

1. Mr Stagoll denied having been present at any conversation during which there was any suggestion that the tyres could be disposed of and the proceeds of sale applied towards the purchase of refreshments.

1. The applicant gave evidence in relation to the discussion with Mr Badkin on the subject of the tyres as follows:

"QDid you indicate to him that they were to be taken to the tip?

AYes I told him they were just waiting to be taken to the tip.

QWhat was his response to that?

AHe said – Oh! I reckon I could find you a home for them.

QWas there any further conversation about that at that time?

AWell we finished loading the truck tyres on and Phil had arrived [presumably a reference to Phillip Stagoll] and when we finished that I actually turned to Phil and I said, 'Stan is interested in the couple of tractor tyres there'. There was a conversation to the effect that we would probably get a carton of stubbies or something for Christmas.

QNow when that conversation occurred, who said that?

APhil Stagoll.

QPhil Stagoll said that. Was anyone else present at that time?

AYes, Ken Apted, Dale Swinton, myself and Stan [presumably a reference to Mr Badkin].

QWas Mr Stagoll in apparent ear shot of the rest of the conversation about the tyres?

AAs far as I know, I asked him about it, I said, 'Stan is interested in the tyres', and he said, 'If he is interested in them, he can have them'."

1. Mr Badkin also gave evidence on this topic, as follows:

"QWhat then did you do, you and the other two. The tyres were on there? [an apparent reference to having loaded some other tyres].

AWell when we loaded the tyres I noticed two grader tyres there and I asked if they were any good I might be able to place them for them.

QWho did you say that to?

ATo the boys that were there.

QWho were they?

ASwinton and Etchell.

QSo as a result of you sort of saying – 'I might be able to get rid of these for you' what did you mean?

AWell I said there are blokes that are after second hand ones knowing that they would probably have to be repaired anyhow before they could be used.

.....

QWhat did Etchell say once you had indicated that you might be able to get, might be able to make some use of those tyres?

AWell I'm not exactly sure, right to be honest with you. I couldn't swear that certain things were said. Jokingly, well I thought it was jokingly I don't know but there was an indication they wanted them for the Social Club and I said well I just dismissed it actually because I can't give money for Social Club, that's up to our boss.

.....

QBut something was said about a Social Club though?

AYes.

QBut you say that you've got no authority to hand money over?

AOh! no I can't, its not part of my job.

QPart of your job doesn't include returns of money?

ANo that is handled by the Manager of the Branch and Directors.

QSo was anything more said about the tyres after that comment?

ANo."

1. Mr Swinton was not called to give evidence. Evidence suggesting that Mr Stagoll gave permission to a disposition of the tyres for the purpose of benefiting the social club was limited. The applicant's own evidence was equivocal at best. He was the only witness who was able to say that Mr Stagoll had spoken about obtaining some refreshments for Christmas in the context of a discussion relating to the disposal of the tyres. Mr Apted was unable to say whether it was the applicant or Mr Stagoll who indicated that the proceeds of sale of the tyres could go towards drinks at the end of the year, although he said that it was one or the other of them, and that each was present at the time. The other witnesses did not place Mr Stagoll as being present on the occasion of any such conversation.

1. In evidence the applicant claimed that on the day that he took the tyres to Speedy Tyres Pty Ltd he was expressly told by Mr Stagoll that he was to take those tyres to Speedy Tyres, although there was no suggestion that the purpose was then indicated. A mere transportation of the tyres from the Corporation's depot to the premises of Speedy Tyres was as consistent with the tyres being taken away for the Corporation's proper purposes as with them being taken away in furtherance of a criminal pursuit or otherwise for the benefit of some person other than the Corporation. Mr Apted's evidence was that on the day in question he was instructed by Mr Stagoll to meet up with the applicant so that they could take some tyres to Speedy Tyres for the purpose of being recapped.

1. The learned magistrate appears to have accepted, or at least was not prepared to exclude beyond reasonable doubt, that the applicant had the consent of Mr Stagoll to remove the tyres. However, the learned magistrate did not consider the question as to whether or not such consent might constitute the consent of the owner beyond saying that the applicant "knew that he had no authority from the Town Hall" (whatever that might mean). However, that observation appears to have been made in the context of considering whether the taking was a dishonest taking. Dishonesty and the absence of the owner's consent are distinct elements to be proved for the purposes of s226(1). The learned magistrate appears to have been diverted from his task of finally considering whether or not it had been established beyond reasonable doubt that the taking was without the consent of the owner by moving to the question of dishonesty, as though a consent given by a person who was the owner within the meaning of s226(2)(b) was not a consent for the purposes of s226(1) if it could be said that the taking was dishonest by reason of an absence of consent on the part of a person who could be said to be the owner of the goods without calling in aid the provisions of s226(2)(b). In saying that, nothing that I have said ought to be construed as being determinative of the question as to whether or not Mr Stagoll could be said to have been the owner for the purposes of s226. The learned magistrate did not ever consider the question.

1. The learned magistrate's conclusion that the applicant had the consent of Mr Stagoll to take the goods to Speedy Tyres Pty Ltd appears to have proceeded, at least in part, upon the basis that Mr Badkin had given evidence that he could not be certain as to whether it was Mr Stagoll or the applicant who had made the suggestion of the sale of the tyres upon the basis to which I have referred. The learned magistrate was wrong in so stating the effect of Mr Badkin's evidence as his express evidence was that Mr Stagoll was not present at the relevant time.

1. It would not follow from findings that the applicant took the tyres from the depot to the premises of Speedy Tyres Pty Ltd with the consent or at the direction of Mr Stagoll and that Mr Stagoll was the owner for the purposes of s226, that one of the essential ingredients required by s226(1), namely an absence of consent on the part of the owner, had not been established. The learned magistrate ought to have made findings of fact as to the basis upon which such consent was given or have expressed his inability to exclude beyond reasonable doubt the possibility that there had been given a consent of a type which amounted to a consent within the meaning of s2A of the Criminal Code. If such a consent was given for the purpose of effecting a sale of the tyres with the purchase price being paid to the Corporation, then consideration would need to be given to the provisions of s229(1)(a). The learned magistrate does not appear to have considered that question at all.

1. The fundamental problem which I have had in considering this matter is the failure of the learned magistrate to clearly find the facts of which he was satisfied beyond reasonable doubt. In general terms he accepted Mr Apted's evidence, but even as to that witness, the learned magistrate's reasons suggest that he did not accept his evidence in a particular respect. Unfortunately, his Worship did not say in what respect he did not accept that evidence. That leaves me in some difficulty. The learned magistrate appears to have found that the applicant had permission to take the two tyres to Speedy Tyres but did not say what facts relating to that question he found to be established or not established according to the requisite standard. The learned magistrate appears to have said that he accepted the account as to the arrangement relating to the tyres as set forth in the record of interview. The answers on the subject of consent contained in the record of interview were vague to say the least and fell far short of what the applicant said in evidence upon his trial.

1. I turn to the grounds upon which the review is sought. As to the first ground, I do not consider that the learned magistrate accepted that there was no evidence that the applicant took or converted the tyres without the consent of the owner. He did not say so and I can not imply such a conclusion from what he did say. As to the second ground, it proceeds upon the basis that the evidence disclosed that the learned magistrate ought to have found upon the evidence that Mr Stagoll had the authority to consent to the disposition of the tyres. That is a doubtful proposition. In any event, it required the learned magistrate to make a number of findings of fact or to conclude that he was unable to be satisfied of the existence of certain facts beyond reasonable doubt. The learned magistrate did neither and therefore erred.

1. As to the third ground, I feel unable to conclude that the learned magistrate ought to have held that the consent of Mr Stagoll was the consent of the owner. However, the learned magistrate did err in making no findings on this matter. He ought to have considered whether or not he was satisfied beyond reasonable doubt that the taking was without the consent of the owner. That required a consideration of the question of whether Mr Stagoll was the "owner" within the meaning of s226 and the nature and extent of such consent as was or might have been given. If he was not satisfied beyond reasonable doubt that the taking was without the consent of the owner, then a consideration of s229(1)(a) might have been required. Those failures on the part of the learned magistrate amount to errors which vitiated his reasoning process.

1. Although the second and third grounds upon which the review has been sought cannot be upheld in their precise terms, they sufficiently raise the errors which I perceive were made by the learned magistrate, and I therefore uphold the Notice to Review upon the basis which I have indicated. It follows that the order of the learned magistrate will be quashed.

1. The matter will need to be redetermined. I feel unable to determine the matter because of the failure of the learned magistrate to make all the necessary findings of fact. Accordingly, I will order that the complaint be re–tried by another magistrate.