Garlett v The Queen

[1988] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P30 of 1987

B e t w e e n -

SYDNEY PATRICK GARLETT

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ

WILSON J

BRENNAi~ J
TOOHEY J

Garlett

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 AUGUST 1988, AT 10.53 AM:

Copyright in the High Court of Australia

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MR H.A. WALLWORK, QC:  May it please the Court, I appear with

MR B.G. HILLEN, for the applicant in this matter.

(instructed by the Aboriginal Legal Service of

Western Australia)

MR M.J. MURRAY, QC: If it please Your Honours, I appear

for the respondent with my learned friend,

MR L. ROBBINS. (instructed by the Crown Solicitor

for Western Australia)

MASON CJ:	Mr Wallwork.
MR WALLWORK:	If it please Your Honours I hand up eight copies

of the applicant's submissions.

MASON CJ: 

Thank you.

MR WALLWORK: 

Your Honours, in this case, as you know, the

applicant was charged with - that he stole with actual
violence a sum of money and that at the time he ..

was armed with a dangerous weapon, namely, a knife.
The facts were that he had held a knife at the right

shoulder of the taxi-driver behind whom he was

sitting in a taxi. The taxi-driver thought that

he told him to stop whereas, in fact, the applicant

later told the police on the Crown case that he had

said, "Stop, I want the money", or words to that

effect.

The position was that the taxi-driver got out of the taxi, saw the man standing there with a knife,

was told to run off down the street and move

backwards, apparently, across the road. The applicant

got into the taxi and drove off.  He only went about

half a mile and he was apprehended in the vehicle
by two police officers whom the taxi-driver had

called.  Your Honours, the Crown case was that the

applicant had driven off in a taxi after ordering the taxi-driver out of the taxi and at the bottom of page 1 of the submissions the Crown evidence is

set out. In that the Crown case was that he told

the police:

All I wanted was some money ... I told him to get out and give me the money. I told him to get out and to walk up the

road.

In paragraph 3: the Crown contention was that the relevant time of the offence was when the applicant drove the taxi away. That appears at

pages 95, 96 and 100 of the appeal papers. The

learned trial judge took the view - and I referring to paragraph 3 of the outline of submissions - that the Crown evidence, if accepted, revealed no more

than that the accused took possession of the taxi

in the hope and, possibly, the belief that it contained

money.

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MR WALLWORK (continuing):  At best he thought it could be

said that the applicant had taken the taxi with

the intent of permanently depriving the owner of

such money as he might find in it. At the time

the intention was said to have been formed the

trial judge thought he had no more than a belief

or hope that money would subsequently be found

and the learned trial judge thought that the Crown
evidence, if accepted, was sufficient to make out

the offence of attempting to steal.

Paragraph 4: it was common ground that the

applicant had failed to find the taxi-driver's

wallet. It was subsequently found by the taxi-

driver in the taxi in exactly the same place as

he had left :i.t and there was no money taken from it.

In fact, it had been pushed down between the

driver's seat and the base of the arm rest on the

left-hand side of the driver. And there was no

evidence after the driver got out of the car that

the applicant asked him for money or that any money

was handed over at all.

Paragraph 5:  on appeal the learned Chief Justice

held that the applicant had not stolen the taxi and the taking of the taxi could not be held to

a fraudulent taking of all things in it within

the meaning of the section 371 of the Code. The

Chief Justice held that the applicant never found the wallet containing the money and there was no

taking of the money. Further, because the act

of stealing the money "is not complete until the

person taking or converting the thing actually

moves it or otherwise deals with it by some physical

act" the charge of the stealing of the money could

not be sustained. And he held that there was no

case for the applicant to answer on robbery.

However, the other· two judges differed from

the former Chief Justice. Mr Justice Wallace said -

and that appears at paragraph 6 - that, "The act

of stealing a sum of money was complete when the
money in the taxi was driven away.	The taxi was

removed for that express purpose." Alternatively,
he thought, the act of removing the taxi constituted

an attempt to steal or rob, depending on the

circumstances, if there was no money in the taxi.

And Mr Justice Smith held that the evidence_as

to the driving off of the taxi was capable of

establishing a sufficient asportation or taking

of money for the purposes of the section. He said

that if the evidence established that there was

money in the taxi the applicant could properly

have been found guilty of robbery.

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MR WALLWORK (continuing): It is submitted that if the

evidence presented by the Crown was accepted

the applicant was disturbed before he could find

and appropriate the money. He could therefore

have been found guilty of attempted robbery by

virtue of the provisions of the Code or, under paragraph 9 of the outline, he could have been charged with attempting to steal some of the

contents of the taxi and I will come to the law

on it in a minute, if I may, which is set out

there but it is submitted, concerning this question

of taking that, first of all, at the Chief Justice

said, the applicant did not steal the car, he

used it without authority.	To which, of course,
he pleaded guilty.

He never intended to permanently deprive the taxi owner of it and it was not alleged that

he did. He was driving it somewhere else to

search it. That would have been the Crown case.

BRENNAN J: If he had intended to deprive the owner of

the car permanently of it, would his movement

of the car have amounted to a taking?

MR WALLWORK: In our respectful submission, no, because

that is really probably the difficulty in this

whole matter, that is, when does an object which

contains money, when can it be considered that

the money has been taken if it is in the object,

if it is - for example, is there a difference

between a car and a safe or a safe and a wallet?

And that is really the submission of the applicant.

We say that the car is not a natural holder

of money and that becomes important in a matter

like this.

If a person, for example, were to go to

an hotel and steal a safe, or if a person were

to go to anywhere else and steal a woman's handbag

or, say, steal a money container as such of any

kind, it may be, in our submission, quite different

to drivin~ off in a taxi with the intent of searching
the taxi 1n the hope, or even in the belief,

that there is money in it.

TOOHEY J:  I am not sure that I appreciate the distinction,

Mr Wallwork.

MR WALLWORK:	One is a natural holder of money - that 1s one aspect only of it, that is, the wallet.
You would expect to find money in a wallet. And secondly - - -
TOOHEY J:	Would you, any more than you would expect or

not expect to find money in a taxi?

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MR WALLWORK:	Your Honour, the evidence, according to the

trial judge was that he only had a hope or a

belief that he would find some money in the taxi.

There was never any certainty at all about it.

But probably the real difference is that in this

case he drove the taxi away and then began to
search for the money. It is a matter of degree,

probably. There are hundreds of cases in the

English and Australian authorities which have

been concerned with this question. I will come

to some of them if I may in a minute but we say
that it might be quite different if it was a

wallet he took away from the taxi-driver, went

round the corner and searched through the wallet.

We say the ordinary person would say he

attempted to steal this money but he got caught
before he could do it. That would be the ordinary
approach and it is submitted that that is the

correct approach on the legal authorities too.

TOOHEY J:  Yes, I am not clear whether the point of distinction

lies in the nature of the object, wallet, safe,

car, or whether it lies in the knowledge of the

person who removes it or whether it lies in some

other - - -

MR WALLWORK:  In our submission there are two aspects of

it. First of all, he never found the money to

actually move the money itself. He never took

the money out of a wallet, as some of the cases

have been concerned with, and I will come to

one or two of them in a minute. And he never

took the money out of the taxi. If the money

had not been in a wallet, had it been, say, stuffed

under the front seat of the taxi and no wallet

at all, it may have been clearer. All he did

was take a car in the hope that he would find

some money in it.

In the course of carrying out - on the Crown

case - a robbery, he was nearly there. The only

thing he had to do to complete his crime, on

the Crown case, was take the money. There is

no real difference, in our submission, between

the fact of him getting into a shop and being interrupted before he took the money. He had got into a taxi, the fact that he drove it was

incidental to his attempt to steal it. That

is, I think, the nub of the case.

(Continued on page 6)

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TOOHEY J:	You mean he only steals the money by - once

he finds it and removes it from the taxi?

MR WALLWORK:  Once he takes the money, yes - he would not

have to remove it. Perhaps he would just have

to put it in his pocket. If I can just refer to

some of the authorities on that aspect.

BRENNAN J: Before you go to the authorities, Mr Wallwork, could I take you to the section? Now, there are various parts of section 371 and, as I understand

it, the part with which we are concerned is not

to do with fradulent conversation, but with

fraudulently taking anything capable of being

stolen.

MR WALLWORK: That is correct, sir.

BRENNAN J:  Now, on this aspect we are not concerned with the element of something capable of being stolen?

MR WALLWORK:  No .

BRENNAN J:  We are not concerned with fraudulent?

MR WALLWORK:  No, sir.

BRENNAN J:  We are concerned only with taking?

MR WALLWORK:  Yes.

BRENNAN J:  So that is a question o.f fact and not a mental element?

MR WALLWORK:  I am not sure about that.

BRENNAN J: Well, there may be a mental element that goes

with a taking if, for example, the taking occurs

independently of the exercise of the will.

MR WALLWORK:  Yes.

BRENNAN J:  Or if it occurred by accident, if that was

conceivable. But we are not concerned with that

situation here.

MR WALLWORK:  Only that he did not know he was taking.

BRENNAN J:  Did not know?

MR WALLWORK:  No .

BREN~AN J: But there was no doubt about his deliberation

of the acts that he did.

MR WALLWORK:  He was attempting to take any money he could

find in the taxi.

BRENNAN J: Just leave aside the attempt for the moment

because that	has got a mental element in it,
obviously.

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MR WALLWORK:	Yes, sir.
BRENNAN J:	The act of moving the taxi with the money in it,

the question is whether that amounts to a taking,

is that right?

MR WALLWORK: That is correct, yes, sir.

BRENNAN J:	Or, if it does amount to a taking, whether it was unaccompanied by a necessary mental element.
MR WALLWORK:	That is right.
BRENNAN J:	Now, do you say that it was not a taking?
MR WALLWORK:	Yes, sir.
BRENNAN J:	Why is that?
MR WALLWORK:	Because he actually never took the money at all.

The cases indicate, the authorities indicate that to

take the money he has to actually do something with

the money, or maybe a wallet, something that is a

container of the money, not in the sense of a car.

There is no case that I have been able to find - and

I do not know whether my learned friends have got any -

where it has ever been held that to drive away a car

with money in it is to take money.

BRENNAN J:  That sounds like a charter for the robbers of

armoured vehicles.

MR WALLWORK:  Yes, and I have actually written down here a Mayne Nickless truck. That is a natural container

of money as such. There is no difference between a Mayne Nickless truck, perhaps, and a safe, but for a taxi - there is an element of hope, to answer

Your Honour's question,in this man that the taxi-driver

had hidden some money somewhere in the taxi. You

see, in this particular case he never even said to

the taxi-driver, "Is the money under the seat, or

have you got it in your pocket?", and it is news

to me, or it was until I read this, that taxi-drivers

would necessarily hide the money in the car. Many

of them just take it out of their pocket when you are

in a taxi. This may be an important aspect of that.

Had he known the money was in the taxi it may have been a different situation. He took the taxi

in the hope that he could search it and find some

money. He actually apparently searched in the boot

because he had the wheel brace out, on the Crown case.

But whether he - and there is another aspect which may

explain a lot of this.	The defence was thathewas
intoxicated.	It was a particularly inept attempt

if the man was sober because he, at no time, pressed the taxi-driver for knowledge of where the money was,

or if there even was any money. As the learned

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trial judge, and fairly we say, said, he just had a

hope that there would be some money in the taxi,

and that is another aspect of it, sir.

BRENNAN J: It is an irrelevant aspect, though, is not it,

because that would raise a question of honest and

reasonable but mistaken belief in a state of facts,

and that is not what we are concerned with?

MR WALLWORK:  No. That is correct. The only thing we are

concerned with is, in our submission, on the

authorities, was he really still attempting to

steal, had the question of attempt been "completed",

and using the word completed in quotes, because

section 4 of our Code, before we come to any decided

cases, has a definition of attempt. It says:

When a person, intending to commit an

offence -

in this case steal some money -

begins to put his intention into

execution by means adapted to its

fulfilment -

holds a knife on a taxi-driver and tells him to get

out of the car -

and manifests his intention by some overt

act -

or same acts -

but does not fulfil his intention to such

an extent as to commit -

or we would say to complete -

the offence -

meaning the same thing - he is said to attempt to commit the
offence.

(Continued on page 9)

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MR WALLWORK (continuing):  If I may refer to one of my learned

friend's authorities,which puts it very well, in

our submission, and that is the case of RUSSELL.

It is number 5 on the respondent's list of authorities:

RUSSELL V SMITH.

WILSON J:	Where is it reported, Mr Wallwork?
MR WALLWORK:	(1957) 1 QB 27 and I am referring to page 34.
WILSON J:	It is 1958.
MR WALLWORK:	1958, I am sorry. Yes, I was reading from the margin. In that case Lord Goddard, when dealing
a case - the facts of which are not necessary to refer to - half-way down 34 says:

In effect, he said then and there: 'I am going

to appropriate and take away from the owner

property which he does not intend to give

me and which I do not intend to return to him~

but of which I do intend permanently to ·

deprive him.' That appears to me to come within

the words of Lord Coleridge CJ in REG V ASHWELL,

where he says: 'In good sense it seems to me

he did not take it till he knew what he had got;

and when he knew what he had got, that same

instant he stole it.' That is what the appellant

did in this case.	As soon as he saw what he
had got, he made up his mind to steal it.	He
then did all that was necessary for him to
complete the offence of larceny.
In my judgment that case is applicable here and is binding upon this court.	The

respondent did not know what he had until, by the

emptying of the lorry at the buyer's premises

he found had eight sacks too many.

I should interpolate here to tell the Court that

he did not take the lorry, initially, with the

intention of stealing this but it puts very neatly

what appears in some of the cases about taking.

If I may also refer to the decision - - -

WILSON J:	Before you leave RUSSELL V SMITH, Mr Wallwork, I am attracted to that - or my attention to the
sentence:

As soon as he saw what he had got, he made up his mind to steal it.

You have to start, do you not, with the proposition

that the applicant intended - he kicked the taxi- driver out in order to drive the taxi away with a

clear firm intention then to steal whatever money

he could find in the taxi?

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MR WALLWORK:	Yes, Your Honour. That is the difference - - -
WILSON J:	Not quite the same.
MR WALLWORK:	No, it is not quite on all fours but there is

another mention of that in MINIGALL's case, number 6

on the respondent's list of authorities:

MINIGALL V McCAMMO~ (1970) SASR 82. At page 93 of

that decision - Mr Justice Wells was giving the

main decision in that case. This was where a man

said that while badly affected by liquor he had picked

up a wallet which he found on the floor of the TAB

and had taken it home. Two days later he opened

it and took some money out of it. Three-quarter

of the way down page 93 he says:

(Continued on page 11)

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MR WALLWORK (continuing):

It follows, therefore, in my opinion,

that when the defendant took up the wallet

as he was leaving, and straightaway joined his	corrpanions in the hotel ·with the wallet in his
pocket, he conunitted the tort of trespass to goods, because the wallet was taken out of thepossession of the T.A.B. -

where it had been on the floor -

in those circumstances, the general principles

with respect to a loser and finder had no

application because the goods had been in

the possession of the T.A.B. and therefore had

not been "lost" in any appropriate sense.

He then went on to say:

If, for either of the reasons I have advanced,

the defendant was guilty of a trespass to the

wallet -

and we say in this case the applicant was guilty

of a trespass to the taxi -

he never had lawful possession or custody of

it' -

and neither did this applicant -

or its contents, and therefore when he

misappropriated the contents to his own

use and benefit he stole it.

And going over the page, at page 94, His Honour

said:

For the reasons I have given I would, on

the facts found by the learned Special

Magistrate -

and they were that the applicant did not know he

had the wallet, which the judges did not think was

a very acceptable finding, but they went on to say:

The defendant, as a matter of law, was not

guilty of larceny of the wallet or its

contents at the Totalizator Agency Board Off ice

at Ashford ..... when he found the wallet

and its contents: but

2.      The defendant, as a matter of law, was

guilty of larceny of the wallet and its

various contents at his home at Keswick on

27th April, 1969 when he discovered the name

and address of their owner and decided to

appropriate them to his own use.

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WILSON J:  But the significant thing about that case is

that everything that you have referred to proceeded

on the premise that there was no intention to steal at the time he picked the wallet up off the floor.

MR WALLWORK:	Yes.
WILSON J:	He did not form the intention to steal the

contents until he extracted them a couple of

days later.

MR WALLWORK: 

That is correct, Your Honour, but they did

find on the authorities that the trespass to the
wallet, or the trespass to the taxi, had occurred,

according to Mr Justice Wells, on the Saturday

and we say the situation is analagous here. The

trespass to the taxi, of course, had occurred
before he drove it away, or as he drove it away,
but there is a difference between that trespass

and the actual taking of the money, we say.

WILSON J: Yes, because there was no intent to take the

money present at the time of the trespass to

the wallet.

MR WALLWORK:  That is one way - - -

WILSON J: Here,you have got your trespass to the taxi

coupled with an intent to steal the money,

any money he could find in it.

MR WALLWORK:  And yet Mr Justice Wells said it did not

make any difference, as I understand his judgment.

WILSON J: All I am observing is that His Honour is not

dealing with the question of intent.

MR WALLWORK: That is right.

WILSON J:  The assumption in that paragraph 2, on page 94,

the last words, he did not steal until he

"decided to appropriate them to his own use".

MR WALLWORK:	Yes.
WILSON J:	The decision to appropriate in this case was

present when the taxi was taken. The only thing

that was not known was whether he could find the

money that -

MR WALLWORK:  Or if there was any there.

WILSON J: Well, you refer to the word the "hope" that

there might be money there. It is a pretty good

bet, is it not, that a taxi will have money in it?

MR WALLWORK:  I do not know,sir; there was no evidence called

of that.

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WILSON J:  I mean, if it was my car, there would be every

possibility there would not be any money in it.

MR WALLWORK: Yes, that is right, sir. Perhaps there ought

to be evidence called before an applicant can

be said to know - and this really is perhaps the

deciding factor in this case. Mr Justice Franklin

was not satisfied that he ever knew. All he

said was that he had a hope. It has got to be

looked at and I think it is perhaps best if I

just finish what I was saying. We say he had

not completed what he had set out to do. He was

still in the process. He was interrupted and

ran away, therefore in normal parlance he was

interrupted while he was attempting to steal and

he never actually got - to use Lord Goddard's words -

the money.

(Continued on page 14)

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MR WALLWORK (continuing): If I may then just refer to

HAUGHTON V SMITH where there is some treatment

of the early English authorities. The leading

case, which is EASOM's case, where a policewoman

sat in a picture theatre and tied her handbag to

her wrist with a bit of cotton and the alleged

thief took the bag, rummaged through it, decided

he did not want anything in it and put it back.

And that case has caused a lot of trouble in England

and it was dealt with in HAUGHTON V SMITH,

(1975) AC 476, and we say it is in accord and is of

assistance in interpreting section 4 of our Code

as to what the words mean in section 4 but does

not fulfil his intention to such an extent as to

commit the offence.

If an attempt is to mean anything in this situation where does the attempt finish and where

does the completed crime take place in this taxi

situation? If there is an overt act - going to

section 4 just very briefly:

When a person, intending to commit an

offence -

which this man was, on the Crown case -

begins to put his intention into execution

..... and manifests his intention -

by the knife and the driving off -

but does not fulfil his intention to such

an extent as to commit the offence.

The common law authorities, in our submission,

are helpfBl in assisting us to find out what those

words mean, and if I may refer to page 481 - that

was the Court of Appeal decision before the final

decision of the House of Lords - but at page 481

of the report it is said - three lines down: Attempts arising out of a failure on

the part of the accused to complete the full

offence usually fall into two main classes.

The first class is the type of case where

the accused has embarked on a course of conduct

which, if complete, will result in an offence

but for some reason breaks off that course of conduct and enver completes the action

required to amount to the offence. There

are dozens of examples of which one can think

of attempts which into that class: the
pickpocket who puts his hand in a man's pocket

only to find it empty; the burglar who is

disturbed by the police when he is in the

process of trying to break open the window;

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the safebreaker who	finds when he gets to
the safe, it is too	difficult for him and
he cannot open it.	These are all people
who have set out on	a course of conduct which
if complete -

and if I can just interrupt that. This word

"completed" occurs again and again and again throughout

the authorities -

in accordance with their intention would have

amounted to a criminal offence, but who have

desisted for one reason or another before

the full course of criminality has been pursued.

In general, and I emphasise that this court

is only concerned to deal with those cases

in generality:  a charge of attempt can properly

be laid in that type of case. It matters

not that the accused might never have completed

the major offence in any event.

And going over to page 491 of the House of Lords

decision the matter is dealt with again. Half-way

down that page 491, Lord Hailsham said:

A more modern definition is to be found

1n the judgment of Lord Parker C.J. in

DAVEY V LEE (1968) 1 Q.B. 366, 370 where he

said:

"What amounts to an attempt has been described

variously in the authorities, and for my

part I prefer to adopt the definition given

in Stephen's Digest of Criminal Law, 5th ed.

(1894), art. 50, where it says that:

(Continued on page 16)

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MR WALLWORK (continuing):

¼n attempt to commit a crime is an act done

with intent to commit that crime, and forming

part of a series of acts which would constitute

its actual commission if it were not

interrupted.'

We say this was interrupted.

As a general statement that seems to me

to be right, although it does not help to
define the point of time at which the series

of acts begins. That, as Stephen said,

depends upon the facts of each case. A

helpful definition is given in paragraph 4104

...... of.Archbold where it is stated in this form: 'It is submitted that the actus reus necessary to constitute an attempt is complete

if the prisoner does an act which is a step

towards the commission of a specific crime, ..

which is immediately and not merely remotely

connected with the commission of it, and

the doing of which cannot reasonably be

regarded as having any other purpose than the commission of the specific crime. 111

And he went on, at page 492, at the top of the page, half-way between A and B:

From the two definitions cited above, I

derive the following propositions relevant

to the present appeal.

(1) There is a distinction between

the intention to commit a crime and an attempt
to commit it. Thus, in this case, the

respondent intended to commit a crime under

section 22 of the THEFT ACT. But this dishonest

intention does not amount to an attempt.

And the went on, under (2):  In addition to the intention, or mens

rea, there must be an overt act of such

a kind that it is intended to form and does

form. part of a series of acts which would

constitute the actual commission of the

offence if it were not interrupted. In
the present case the series of acts would

never have constituted and in fact did not

constitute an actual commission of the offence,

because at the time of the handling the

goods were no longer stolen goods.

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(3) The act relied on as constituting

the attempt must not be an act merely

preparatory to commit the completed offence -

in this case the man getting a knife from his

uncle's house -

but must bear a relationship to the

completion of the offence referred to in

REG V EAGLETON as being "proximate" to the

completion of the offence and in DAVEY V LEE as being "immediately and not merely remotely connected" with the completed offence.

And if I may go over to page 497- that is still

Lord Hailsham -at B:

I agree with the decision in REX V PERCY

DALTON (LONDON) LTD and particularly with

the quotation from Birkett J, cited by

Lord Widgery CJ in the present case, where·

he said, at p 110:

"Steps on the way to the comm1ss1on

of what would be a crime, if the acts were

completed, may amount to attempts to commit

that crime, to which, unless interrupted,
they would have led; but steps on the way

to the doing of something, which is thereafter

done, and which is no crime, cannot be regarded

as attempts to commit a crime."

TOOHEY J: Mr Wallwork, all this seems to me to beg the

question against you in this case. You are putting

this, presumably, on the basis that there was

no stealing until the applicant had physically

found and dealt with the wallet in the taxi?

MR WALLWORK:  Yes, Your Honour.

TOOHEY J:  But if, in fact, there was a stealing at the

time he took the taxi in the hope or expectation

that there would be money in it then none of
this line of argument really helps at all, does

it?

MR WALLWORK:  That is correct, Your Honour. The question

is, in our submission, when was the taking done?

We say that the taking of the money, as opposed
to the taxi, never occurred and the crime of
stealing the money was never completed. It was

only an attempt to get the money which was interrupted

and failed.

BRENNAN J:	Why was there an attempt to get the money, on your argument? There was only a movement of the taxi and then there was to be a search and then,
if sanething was found, there might be an attempt.
ClT20/2/ND	17
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MR WALLWORK:	I think, sir, thaton the facts of the Crown

record of interview and admissions the applicant

said he had taken the taxi to try and get some

money: ''All I wanted was the money."

BRENNAN J: Yes, of course, but where does the attempt start,

on your argument?

MR WALLWORK:  When he said: "Stop the car. Where is your

money" - which the taxi-driver did not hear the

second part - "get out". According to the taxi-

driver he waved his knife and said, "Run off".

He got into the taxi to take it away and on one

version of the police evidence he was rununaging

in the front of the vehicle when the two police

officers arrived 10 minutes later.

BRENNAN J:  But am I right in understanding your principal

argument to be this: that the taking could only

occur when the accused found the wallet?

MR WALLWORK:  Yes, on these facts, sir, yes.

BRENNAN J:  On these facts. So until he found

MR WALLWORK:  It might have been different had he known

there was money in the taxi.

BRENNAN J:  Yes, all right. Well, until he found the wallet

there could be no taking?

MR WALLWORK:	And no stealing, yes.
BRENNAN J:	No stealing. Well, now, until he found the wallet

how could there be an attempt to take?

MR WALLWORK:  That raises a whole new concept which, again,

has caused a lot of trouble about whether or not

you can have attempts when the offence is impossible

of performance.

BRENNAN J:  I am just thinking of the question of whether

there is anything done,on your argument,which could

amount to an attempt. I am not suggesting that

your argument is right, just that if it is correct

then where is there an attempt?

MR WALLWORK:  We would say that he - the normal conunon sense

way of looking at this and which is what the judges

have said on a number of occasions in these cases,

is that this man was attempting to steal the money

in the taxi, which he hoped was in the taxi, that is

what he was attempting to do. If he could ever be

guilty of an attempt, unless it was proved that there

was money in the taxi, has been the subject of many

authorities, but in this case the Crown proved there

was money in the taxi. So had he completed his act

ClT21/l/MB	18
Garlett

he would have been successful. So we would say,

yes, he would be guilty of an attempt to steal the
money in the taxi because, in fact, there was money

in the taxi but he never got to it, he never even

found it.	I think that is really the argument, what
it boils down to.	On the sections then, on the

common law, the crime must be completed before you

can be guilty of it, the stealing in this case, the

taking of the money. Looking at it overall the

taking of the money was never completed, we say.

If I can just briefly finish on just another

couple of authorities, Your Honours.

(Continued on page 20)

ClT21/2/MB	19
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MR WALLWORK (continuing): At page 500E, that is the same case,

REG V SMITH, half-way down, he said:

In my judgment this theory must be rejected.

I think that the law was properly stated in

REX V PERCY DALTON (LONDON) LTD:

"Steps on the way to the colillil.ission of what
would be a crime, if the acts were completed,

may amount to attempts to colillil.it that crime,

to which, unless interrupted, they would have

led.

And, again, there is this adoption by Lord Reid of this

concept of completion. He says:

I do not say that that is an exhaustive

definition. It requires some explanation or
expansion in at least one class of case. A

man may set out to colillil.it a crime with inadequate

tools.	He finds that he cannot break in
because the door is too strong for him.	Or hi
uses poison which is not strong enough.	He is
certainly guilty of attempt: with better
equipment or greater skill he could have colillil.itted the full crime.

And we say that with better skill this man could have colillil.itted the full crime because he would have found the money.

Or the person whom he attempted to murder

has moved a short distance away and he shoots

at the place where the person was a short time

earlier. There may well be borderline cases of

that kind. We are not applying a rule but a

principle and it must be applied sensibly.

I would not seek to lay down the law in detail -

but if we can adopt what he says,"steps on the way to the

commission of what would be a crime if the acts were

completed" - again there is that word "completed" used

by His Honour.

TOOHEY J:  But you still have to face up to the argument that

the offence was complete when the taxi was taken with the

money in it.

MR WALLWORK: Yes, I appreciate that, Your Honour. But we say

that it could not have been completed because, first of

all, he did not get the money. He never even saw the

money and he never even found out it was there so it

could not be said in the normal sense of the word

"completed" that he had completed a theft in this case.

WILSON J:	He had dispossessed the owner of it.
MR WALLWORK:	Of the taxi?

ClT22/l/PLC	20	4/8/88
Garlett
WILSON J:	Of the money.	At the moment he drove away, having

left the driver behind, he had dispossessed the owner of

the money?

MR WALLWORK: That is correct, Your Honour. And so had the person in EASOM's case which has been the subject of

the literature. In that case the person took the handbag

from the police officer and broke the string and rifled

through it and then put it back, and that was held not

to be a stealing, as I understand that case, on all the

authorities. I was going to come to - they treat that -

in a minute - in one of the authorities I was just going

to refer to.

WISLON J: Of course, there there was no intention.

MR WALLWORK:  There was an intention to steal if there was anything

in the wallet that he thought was going to be worth stealing

and, in my submission, it is on all fours with this one,

in EASOM's case.

(Continued on page 22)

ClT22/2/PLC	21	4/8/88
Garlett

11R. WALLWORK (continuing): If I may refer to the

DIRECTOR OF PUBLIC PROSECUTIONS V NOCK,(1~78) 2 All ER 654,

firstly at 657, Lord Diplock there said, half-way down

the page:

My Lords, this, in relation to pickpockets

at least, seems to me to offend connnon sense

and common justice. The crime which the

pickpocket sets out to connnit is not confined

to stealing from a particular person or, a

fortiori, from a particular pocket in a

particular person's clothes or from a particular

article carried by a particular person.	When
he converts intention into attempt by the
proximate act of extending his hand to a

particular pocket or article, failure at this

point to effect his intention of stealing,

because where he first puts his hand there is

nothing to steal, does not mean that the course

of conduct that he intended to pursue would

have ended with this initial failure and wou1d
not have continued until he had found

something to steal in some similar place and

stolen it. Under an indictment drafted in

suitably broad terms I see no reason why even

the solitary pickpocket should not be
convicted of attempted theft without the

prosecution needing to prove that the

particular pockets or handbags into which

he was seen to put his hand in fact contained

something which he would have stolen if he

could.

At page 662 of the same judgment, it was further

developed, five lines down from the top of the

page:

The second ground of decision, the

connnon law principle,can be sunnnarised in

words which connnended themselves to all

the noble and learned Lords concerned with

the case. In RV PERCY DALTON (LONDON) LTD

Birkett J giving the judgment of the Court of Criminal Appeal said:

"Steps on the way to the connnission of

what would be a crime, if the acts were

completed, may amount to attempts to connnit

that crime, to which, unless interrupted,
they would have led; but steps on the way

to the doing of something, which is thereafter

done, and which is no crime, cannot be

regarded as attepts to connnit a crime.ti

In his speech Lord Hailsham LC -

and he is referring back to HAUGHTON V SMITH -

added the rider (a logical one) to the effect

CIT2-3/l/JM	22	11R. ~ALLWORK, QC	4/8/88
Miller

'that equally steps on the way to do

something which is thereafter not completed,

but which if done would not constitute a

crime cannot be indicted as attempts to

commit that crime'.

On page 663, the third paragraph:

For these reasons I would allow the

appeal. However, counsel for the Crown

informed us that HAUGHTON V SMITH has

created'difficulties in the enforcement of

the law. He referred particularly to the

pickpocket who finds nothing to steal in

the pocket (or wallet) which he picks. In

my opinion HAUGHTON V SMITH provides no

escape route for such villains, as

Lord Hailsham LC called them. In

HAUGHTON V SMITH this House reinstated as

decisions of authority RV McPHERSON and

RV COLLINS. In McPHERSON 1 s·case the jury

had convicted McPherson of an attempt to

steal goods other than those mentioned in

in the indictment. The goods specified in

the indictment had been removed before he

had broken into the house. Quashing his

conviction, the Court for Crown Cases Reserved

held that 'he could not properly be convicted

of attempting to commit the felony charged.

This decision was followed in RV COLLINS, a

pickpocket case. Here also the indictment

was limited to an attempt to commit a specific

theft, namely to steal the property of the

woman in her gown pocket. There was no

affirmative proof that there was anything in the

pocket. As Bramwell B commented in McPHERSON's

case, such cases depend on the nature of

the offence charged; and, I would add, on the

particular facts established or conceded. It
is certainly not possible to deduce from these
cases a rule that he who, with intent to steal,

picks a pocket but finds nothing to steal must

be acquitted of attempted theft; nor do I

think did any of their Lordships in

HAUGHTON V SMITH commit themselves to so sweeping a proposition.

(Continued on page 24)

CIT23/2/JM 23 4/8/88

Garlett

MR WALLWORK (continuing):  If I can go on to the decision of

RE ATTORNEY-GENERAL'S REFERENCES, (Nos 1 & 2 of 1979)

(1979) 3 All ER.

BRENNAN J: Before you go to that, Mr Wallwork, those cases

by the provisions of section 4 of your Code are they	you have just been referring to, they are covered
not, that:

It is irmnaterial that by reason of

circumstances not known to the offender,
it is impossible in fact to conunit the

offence.

MR WALLWORK:  Yes, sir, that is right. I refer to them

because they fit this attempt, this concept of

attempts, if it is an attempt.

BRENNAN J: Well, if the moving of the taxi was an attempt

to steal the money that was in it and not an actual

stealing of the money that was in it, then the

fact that there was no money in the taxi would not

prevent the moving of the taxi from constituting

the necessary act is raised.

MR WALLWORK:  Yes, by virtue of section 4, yes, Your Honour.

If I may refer to EASOM's case, (1979) 3 All ER at

page 148d, first of all:

Two things must be noted: first, the charge ii!, question w~s not of attempted theft -

and he is talking about EASOM's case -

but of theft, and secondly, the offence

charged was theft of a handbag and of a

number of specified identified contents.

But there is nothing in this decision which

makes it wrong in such a case to charge an

attempt to steal the contents of a handbag

describing the objects of the alleged attempted

theft generically in that way.

At 152g of the same report, down the bottom of page 152 it is said:

We had an interesting discussion, with the

help of counsel, how, in these cases of burglary

or theft or attempted burglary or theft, it is

in future desirable to frame indictments. Plainly

it may be undesirable in some cases to frame

indictments by reference to the theft or
attempted theft of specific objects. Obviously
draftsmen of indictments require the maximum
latitute to adapt the particulars charged

to the facts of the particular case, but

we see no reason in principle why what was

described in argument as a more imprecise

ClT24/l/MB	24
Garlett

method of criminal pleading should not be

adopted, if the justice of the case requires	it, as for example attempting to steal some
or all of the contents of a car or some or all of the contents of a handbag.

And under b:

Taking as an exmaple the facts in RV EASOM,

plainly what the accused intended was to steal

some or all of the contents of the handbag
if and when he got them into his possession.
It seems clear from the latter part of

Edmund Davies LJ's judgment that, if he

had been charged with an attempt to steal

some or all the contents of that handbag,

he could properly have been convicted,

subject of course to a proper direction

to the jury.

(Continued on page 26)

ClR24/2/MB	25
Garlett

MR WALLWORK (continuing):  We say that the situation

here, on our Code, is the same and we say and

concede that - maybe wrongly - he was attempting

to steal, because of what he said, any money

he hoped he would find in the taxi. There is

a later decision - I will not read from it but

refer Your Honours to. It is referred to on

the applicant's list of authorities and it is

the fourth one: REG V BAYLEY AND EASTERBROOK,

(1980) ~rim LR 503. There is a case and

comments section in that Criminal Law Review

dealing with the charge of attempted theft of

the contents of the box and, again, it is attempted

theft and there is a commentary, a very helpful

commentary that goes over two pages by

Professor Smith.

And there also is a textbook which is referred

to on the applicant's list of authorities called

the Law of Theft by J.C. Smith (5th Edition)

at page 69 which refers to some of the later

English cases. Bu½ Your Honours, they are common

law cases and they are mainly concerned with

the effect of HAUGHTON V SMITH which I have quoted

from and EASOM's case as to the proper charges

to be made against people who do not actually,

in our submission, complete their theft. And

as Mr Justice Brennan has pointed out, because
of our Code it does not matter under our law

whether it was possible or not.

But we do say that these facts do not fit

a completed offence and that is the submission

of the applicant. It is an important matter. There

have been no decisive authorities in Australia on this.

There have been some authorities to which I have

referred which my learned friend has but nothing

decisive and it does cause problems and it would

seem that the common sense situation is he was

interrupted before he stole the money - before

he completed the act. Thank you, Your Honours.

BRENNAN J:  Mr Wallwork, before you resume your seat, there

is something that is troubling me about the form

of the order that was made by the Court of Criminal

Appeal in this case. An order was made for the

retrial of the accused and as an incident of

that a verdict of guilty of attempted stealing

was set aside. The accused was convicted of

that offence and sentenced for that offence.

The accused, therefore, would be able, would he not, to bring himself within section 16 of

the Code?

ClT25/l/ND	26
Garlett
MR WALLWORK:	On the autrefois acquit?
BRENNAN J:	Not the autrefois acquit but not to be punished twice for the same act or omission, because he
has already been punished.

(Continued on page 28)

ClT25/2/ND	27
Garlett
MR WALLWORK:	In fact, he has not because he was sentenced -

he has never been sentenced for this offence.

No, he was sentenced for taking the car and

immediately he was convicted of attempted stealing -

I will just check that, if I may - I am sorry, I

did not think he had been. I thought he only

served - Your Honour, that is correct, and that is

mentioned in the Full Court judgments, this question

of what this section means giving the Crown a right

of appeal and - - -

BRENNAN J:  I can understand that so far as the principal

offence is concerned that an order of this kind may

be made, but what I do not understand is how one gets
rid of an existing conviction against which there has
been no appeal, and what the consequences then are for

the retrial, so long as that conviction and any

sentence founded upon it stand.

MR WALLWORK:  Yes. In my submission, the conviction

obviously ought to be set aside. That is the

purposes that Their Honours say in the Full Court of

the Court of Criminal Appeal of giving the Crown a

right of appeal. They dealt with that but - - -

BRENNAN J:  You are raising no point about it, is that the

situation -

MR WALLWORK:  Yes, I do. I do not wish to - if

Your Honour	thinks that there is an objection there
I do - I am	not arguing it, no. I am not going to
argue it.

BRENNAN J:  If you are not arguing it, then I do not propose

to invite you to.

MR WALLWORK:  Yes. The actual - if the matter is to be

retried, in my submission, the conviction would have

to be set aside because, otherwise, it could not be

retried. That is the purpose of the section, as

His Honour the Chief Justice mentioned, and I think

the other judges did too.

BRENNAN J:	Yes, very well.
MR WALLWORK:	Thank you, Your Honour.

MASON CJ:  Thank you, Mr Wallwork. Yes, Mr Murray.

MR MURRAY:  If it please Your Honours, may I commence by

passing up an outline of the respondent's submissions.

MASON CJ:	Thank you.
MR MURRAY:	I would be happy,if Your Honour Justice Brennan would like me to deal with it, to discuss the way
in which we thought effectively that matter of

ClT26/l/HS	28	4/8/88
Garlett

setting aside the verdict of guilty of attempted

stealing was dealt with.

BRENNAN J:  Mr Murray, if it is to be argued it might be

argued more effectively on an occasion when it is

raised by counsel for an appellant.

MR MURRAY:  May it please Your Honour. The respondent's

submission in respect of this matter is that the case

is to be approached, firstly, from the starting position

that there was clearly established on the evidence

an attempt to steal, that which was particularized
in the indictment in general terms, a sum of money,
the property of the taxi-driver Rendall, and then

the point which troubled His Honour the trial judge

and which was dealt with in the other portion, if one

likes, of the judgments of Their Honours on the

Court of Criminal Appeal, as to the sufficiency of

the intent, need trouble us no further, and with

respect to my friend's submissions in relation

to that, the case is dealt with sufficiently, in ..

our submission, by understanding that it is in law

sufficient that the accused person intend to take

that which he finds, if he finds something of value,

and it is certainly sufficient if, in this case, he

has an intent to take some specific thing if he is

able to obtain it.

That intent was, of course, formed prior to doing

any act which could either constitute an attempt or
the commission of the act of stealing, that which was

a necessary element of the offence charge of armed

robbery.

(Continued on page 30)

ClT26/2/HS	29	4/8/88
Garlett

MR MURRAY (continuing): In relation to one aspect of the

taking there is part of the material which deals

with his state of mind which I would just wish

to make specific reference to, as a matter of fact,
and that is that as it is developed - as one sees
from the summary of the facts and the judgments
of Their Honours in the Court of Criminal Appeal -
the way in which he pursued the commission of the

offence was simply to cause the taxi-driver to

stop; to threaten him with the knife and the demand,

whic~ as it turns ou~ apparently the taxi-driver

himself did not hear, and the purpose of that was
for the taxi-driver to remove himself from the

vehicle and remove himself from the immediate

surrounds of the vehicle so that he could not interfere
with the taking of the vehicle and the purpose

of that, clearly, was to gain access to the money

and they were the statements which the applicant

made at a number of points.

So, he was approaching the whole enterprise.·

on the basis that the vehicle was the receptacle of money, at least he had that expectation, and,

if one like~, the hope that that was the situation.
So, I would delay Your Honours no further with

respect to any substantive matters or matters in respect of

intent except to say that the discussion of the

relevant authorities on this unhappy concept of

conditional intent, and the way in which that has

troubled courts, which is to be found in the

authority,ATTORNEY-GENERAL'S REFERENCES (NOS 1

& 2 of 1979) to which I will not take Your Honours

but we had it reported in (1980) 1 QB 180. There

is a discussion - - -

TOOHEY J: Mr Murray, could I interrupt you? What is it

that Crown had to establish in this case in order
to make good the elements of the offence with which

the applicant was charged?

MR MURRAY: Well, if one puts it directly in terms of

section 371 so far as we are concerned with elements

other than the use of violence and that sort of

material which would constitute the offence of

robbery, to establish that offence of stealing,

which was a necessary element, in our submission,
what was required to establish was a taking of the

sum of money in the sense generally reterred to

in section 371 and specifically dealt with in

subsection (6), so that it would not be complete

unless we could demonstrate some actual movement

of the sum of money or otherwise actually dealing
with it by some physical act and we had to establish

the intent to permanently deprive Rendall of the

sum of money.

TOOHEY J:  I take it that you accept there must be some directing_

of mind towards the possibility of money being in the taxi?

ClT27/l/AC	30	4/8/88
Garlett

MR MURRAY:	Yes. C.Ould I develop it, Your Honour, in this way?
TOOHEY J:	Could I just put one example to you before you do?
MR MURRAY:	Yes, please.

TOOHEY J: If the applicant had simply taken the taxi in

the sense of taking it to get himself from point A to point B with no other purpose in mind, and with

no intention of permanently depriving the owner

of the taxi of that vehicle, then I take it there

would have been no offence committed of stealing

the money - - -

MR MURRAY:  No.

TOOHEY J: - - - in the taxi unless, perchance, the applicant

had stumbled on the wallet and removed it.

MR MURRAY: Later, Your Honour, yes.

TOOHEY J:  Yes. But in taking the taxi in those circumstances

there would have been no offence of stealing the

money?

MR MURRAY:  No. Nor any attempt to do so, there simply would

have been no willed act which could constitute

a "taking" within the meaning of the Code.

TOOHEY J:  So what is it that then - what is the mental element

that constitutes the offence?

MR MURRAY: It is that to which reference is made, for our

purposes, in section 23 of the Code. It is that

the act of taking, if we have properly described

it as an act of taking of the money, is one

accompanied by the will of the accused and in this

case the applicant was not taking the taxi merely

on the basis that it was likely to contain money

but, as Their Honours in the Court of Criminal

Appeal put it, for the express purpose of obtaining

such money as it might contain. (Continued on page 32)

ClT27/2/AC	31	4/8/88
Garlett

MR MURRAY (continuing):  And that mental element, or expression

of a mental element in those terms, in our respectful
submission, would clearly satisfy the requirements

of section 23 and constitute the taking. And

one can approach it in a number of ways and,

in our respectful submission, if that is a correct

statement of the law it is in accordance with

the common law and the authorities to which we

would refer would illustrate that, in our respectful

submission.

I start from the point that our submission

is that, as I think in discussion with my learned
friend Your Honour Justice Wilson put it, the

taking with which the section is concerned is

some act physically operating upon the thing

charged to have been stolen which has the effect

of depriving the owner of possession of the property.

It is that - in the context of this sort of case,

it is that traditional element of interference

with the proprietary, the possessory rights

particularly, of the owner of the money with

which one is concerned.

Again, I do not take Your Honours to the

authority, but this Court, relatively recently,

had occasion to restate that sort of aspect of

the matter in the context of ILICH's case - ILICH

V REG, (1987) 162 CLR 110. Again, I do not take summary some convenient page references there

to various portions of the judgments in which

that emphasis in general terms is to be found.

So if one starts from the point of view,

as in our respectful submission one must, that

what we are concerned to establish is a taking
which is constituted by some act which has the

effect of interfering with the possession of

the owner of the money in these circumstances,

we are well along the road, in our submission, to establishing that removal of the taxi was	such an act applying to the money which was within
it, as a matter of fact.

The only thing that we need to concern

ourselves with, in our submission, is whether

that was a willed act or whether it was an act

which had that necessary mental quality attached

to it because it certainly had the effect of,
as a matter of fact, interfering with the owner's

possession of his money and it deprived him of

it. It is dealt with in a number of authorities

and they are those to which we have referred,

all common law authorities but, as we say, our

submission is that the position would be the

same in terms of section 23 of the Code.

ClT28/l/ND	32	4/8/88
Garlett

So perhaps if I might just mention those.

The first of them to which we would make reference

is the case of RUSSELL V SMITH and, if I may
take Your Honours to that again, that was the

case reported in (1958) 1 QB 27, and it is a

decision of the Queens Bench Division. It was

a case where, as Your Honours may be familiar

with its facts, very simply, the accused there
was a person who had the responsibility to convey

some sacks of something or other - feeding stuffs.

I am not sure what was in the sacks but some

sacks of something which it was his job to take

from the place of his employer to a person who was purchasing the material and by error eight

sacks too many were loaded on to his lorry.

It was apparently accepted as a fact that

he was entirely unaware of that and so he had
no purpose of obtaining eight sacks too many,
he had no knowledge that there were eight sacks

too many and there was no knowledge of the thing-·

which was the subject of the charge under the

LARCENY ACT until later. And so it was that

the court said that the original taking possession,

if one likes, and dealing with the sacks in that

way would not constitute the necessary asportation
but it all came together at the time when he

discovered the existence of the sacks and at

that same time formulated the necessary intent
to permanently deprive the owner of the property

in them.

(Continued on page 34)

33 MR MURRAY, QC 4/8/88

81T28/2/ND	arlett
MR MURRAY-(continuing):	At the bottom of page 34, and

over on to page 35 of the report, the matter is dealt with in these terms, from the judgment of the Chief Justice, Lord Goddard:

I do not think that a man can taken into

his possession, or come into possession of,

a thing of which he has no knowledge. If

somebody leaves something in my house and

I do not know that he has left it, it does

not seem to me that it can be said that I

am in possession of that property. If it

happens to be stolen goods - leaving out

any question of guilty knowledge -

and so the qualification appears there irmnediately -

the prosecution would surely fail at once,

if it was once shown that the property was

left in my house without my knowledge. Very __ often the prisoner in a receiving case alleges

that he did not know that the goods were there.

If the respondent did not know that the

goods were there, how can he be said to be

in possession of them?

In co-terms, we would ask that question: how could

his possession, if one likes, in a factual sense

be a willed act?

Then, at the bottom of that page, it is brought

into the facts of the particular case by referring

to the fact that the:

eight sacks were not intended to be put

into the respondent's lorry; they were not
intended to be delivered to the consignee
when the rest of the property was delivered.

I think is very much akin to a finding. If a person by inadvertence places sacks in a

lorry, it is not very much different from

having lost the sacks. In my opinion,

therefore, there was a taking. The taking

took place when this man discovered that he had the sacks, which were never intended to be given to him and which he must have known

were never intended to be given to him,

except in the sense that they were put on the

lorry by mistake.

The timimg of that is a significant point and we

say it is distinguishable clearly on the facts of

this case, but the reasoning behind it is of

assistance.

The South Australian case of MINIGALL V McCAMMON

is another helpful decision, in our respectful submission-.

CIT29/l/JM	34	4/8/88
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That is reported in (1970) SASR 82, and I take

Your Honours briefly to that, if I may? That was

a case, if you recall, where the property with

which the Court was concerned was a wallet containing

money and papers which had been lost by its owner,

or dropped on the floor of a Totalizator Agency. It was there found by the accused who apparently

simply put it in his pocket. The finding of

the fact by the trial court had been that he at

that time formed no intention of any description

with respect to the wallet or the property. Unlikely

though that might have been, the appeal court was

dealing with it on that basis, out it was in the
context of a case in which the charge was the

larceny of the wallet and papers to the value of

about a dollar and money to the amount of $250.

That was alleged to have taken place

in two ways. The decision was that he was

not guilty of the larceny completed at the

Totalizator Agency premises when he found and

took away the wallet because simply that - although

that taking was a trespass necessarily as an

element of the cormnon law offence, because there

was no intention at that time to return the wallet

to the owner, or there was no view on the part
of the finder that the mmer could not with
reasonable inquiry be discovered, so the taking

possession of the wallet and its contents at

that time was unlawful in that sense.

Eiut the larceny, the cormnission of the

offence of larceny was delayed until having the

· thing in his possession, he formed the intent,

having examined the wallet at his home, that he

would keep the contents, particularly the

money and the wallet for himself.

(Continued on page 36)

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MR MURRAY (continued):  Dealing with it on that basis means

that the remarks which we found useful for the

purposes of this case were entirely obiter and

expressly so, but if the Court would bear with me it

may be useful just to recite them quickly, if I may.

They appear at the bottom of page 88 of the report,

which is a passage from the judgment of

Chief Justice Bray, and he said:

Finally, the conclusion which I have reached makes it unnecessary for me to

deal with what was the principal argument

advanced by Mr Hodge for the informant,

namely the argument that, as the

defendant did not know what the contents

of the wallet were until he examined them

on Sunday, 27th April, he took the contents

then, and hence their taking was
simultaneous with the intention to
appropriate them to his own use.

He refers to a number of authorities to which reference had been made and continues a little

later in that long passage:

I will only say that I would find very

great difficulty in accepting the proposition that

on the facts as founct here by the learned

Special Magistrate, though the wallet was taken on the Friday -

that is at the totalizator agency -

the contents were not taken until the

Sunday. That proposition, it seems

to me, would lead to extraordinary

consequences and I mention three of them.

The first is that -

there would be a separation between the wallet and
the contents - I am sorry, I started to paraphrase

His Honour's judgment and I apologize for that - and

the second was a rather different point concerned

with whether an action might be brought if the wallet

was then again removed, whether that would be an

action which would have to be restricted to the

wallet, or could include the contents. But the
point upon which I wanted to focus was simply the

third proposition, or the third point of difficulty

which His Honour the Chief Justice referred to,

about half-way down that page:

is that if a man who picks another's

pocket or snatches a handbag from a

woman or removes a safe from an office

is apprehended before he has found out

what the wallet, the bag or the safe

ClT30/l/HS	36	4/8/88
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contains, he would be guilty of the

larceny of the container but only of the

attempted larceny of the contents, since

on the hypothesis in question he could

not have taken them before he found out

what they were. I would hesitate long in

reaching this conclusion -

and this is perhaps the crucial sentence -

It seems to me that if a man takes a

container, knowing that it is a container

and therefore likely to have contents, he

takes the contents too -

that is perhaps a sufficient approximation to the way

in which we would say the mental element would be

approached in terms of section 23 of the Code, and

it is again developed just in conclusion by

His Honour the Chief Justice there by saying -

It would be different if he did not know

that the object was a container, if the
present defendant, for example, had thought
he was·picking up not a wallet but a
piece of leather. And the case of the
contents of a secret container within an
outer container, the taker or the possessor
of the outer container never having

adverted to the possibility of its hiding

a secret container, might well be different
also.

I go on to that point because it leads me into the next citation which is of a case which came before

this Court relatively recently, BAHRI KURAL V REG,

(1987) 162 CLR 502, and I will, if I may, take

Your Honours to that one. That was a case in a

different factual context. It was a charge under

the CUSTOMS ACT concerned with the importation of

heroin into this country and the heroin with which

Overseas the applicant there had been asked to bring	the Court was concerned was concealed in a samovar.
the samovar to Australia in circumstances which led
him to think that it might contain some prohibited
import and he had, in fact, apparently searched the
samovar to see whether he could discover the thing which he feared he might in truth be bringing with him, but he was unable to find it.

The drug was apparently concealed in plastic bags

in the base of the samovar in some way which made that

a secret compartment and the question there was simply

whether he could be said, under those circumstances

of fact, to have imported the heroin, and the sort

of knowledge and the mental element which was involved

in that concept was discussed by this Court.

ClT30/2/HS	37	4/8/88
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The first passage to which I would wish

to refer is that from the joint judgment of

Your Honour the Chief Justice, and Justices Deane
and Dawson, and it appears at page 504 of the report,

at the very outset of it, and starts on the second paragraph of that page in which there is a general discussion of the mental element which, for these

purposes, would equate with that dealt with by

section 23 of the CRIMINAL CODE of Western

Australia. During the course of that first

paragraph Your Honours said:

(Continued on page 39)

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MR MURRAY (continuing):

Where the offence charged is the commission of

a proscribed act, a guilty mind exists when an

intention on the part of the accused to do

the proscribed act is shown.

Then the judgment went on to describe the problem

being as one of proof. The last paragraph on that

page is - reading, if I may:

Where, as here, it is necessary to show an

intention on the part of the accused to import

a narcotic drug, that intent is established

if the accused knew or was aware that an

article which he intentionally brought into

Australia comprised or contained narcotic

drugs. But that is not to say that actual

knowledge or awareness is an essential element

in the guilty mind required for the commission

of the offence. It is only to say that knowledge
or awareness is relevant to the existence of
of the necessary intent. Belief, falling short
of actual knowledge, that the article comprised

or contained narcotic drugs would obviously

sustain an inference of intention. So also

would proof that the forbidden act was done

in circumstances where it appears beyond

reasonable doubt that the accused was aware

of the likelihood, in the sense that there

was a significant or real chance, that his

conduct involved that act and nevertheless

persisted in that conduct. As a practical

matter, the inference of mens rea or a guilty mind
will ordinarily be irresistible in cases involving

the importation of narcotic drugs if it is

proved beyond reasonable doubt that the accused
actually imported the drugs and that he was

aware, at the time of the alleged commission of the offence, of the likelihood of the existence

of the substance in question in what he was

importing and of the likelihood that it was a

narcotic drug.

The relevance of those observations to the state

of mind of the applicant in this case, in our

respectful submission, is helpful in determining -

TOOHEY J:	Mr Murray, you have used the expression "willed act" and "mental element", sometimes as if they
are synonymous, sometimes, perhaps, suggesting that at least in the present context they may not
be synonymous. What is the "willed act" that you
speak of here?

MR MURRAY:  It has to be the act of taking the money. It

can be no more nor less than that, we would say.

ClT31/l/MB	39 ·	4/8/88
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It is that physical act performed by the accused

which would constitute that element of the offence.

TOOHEY J: Well, put that way it does not appear to contain

a mental element?

MR MURRAY:  It does, if it please Your Honour, in our submission,

to the degree that it is necessary to distinguish

between something which factually satisfies, for

examples, the dictates of section 371(6) but is not an act to which the accused's mind has been brought to bear at all. It is still necessary

in terms of section 23, in our submission, that

one would find that that act of taking, that movement

of the money, which occurred when the taxi was
interfered with, was one which could be properly
described in terms of section 23 of the Code as
not an act which occurred independently of the
exercise of the will of the applicant. The purpose

of referring to these authorities, if I may just ··

complete that proposition, is that we think that

is a statement which may properly be made if it can

be seen that .all the evidence showed at least that

the applicant realised that the money was likely

to be in the taxi and is much more clearly established

if, as in the circumstances of this case, he took

the taxi for the very purpose of gaining access

to the money.

TOOHEY J: 

Well, that was really to be my next question;

to what extent the turning of the applicant's
mind to the likelihood of money being in the taxi

was a necessary element in this"willed act"of which
you speak.

MR MURRAY: 

Does the statement I made help to deal with that point, Your Honour? It seems to us that it is only

to that extent that there must be - there is no

authority which we have been able to discover

way in which one would formulate the mental element

precisely on the point which arises here as to the

involved in the question of taking an item of

property or a sum of money which one proposes to steal.

(Continued on page 41)

ClT31/2/MB	40	4/8/88
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MR MURRAY (continuing):  But we see no reason why one could

not import into the application of section 23 of
the Code the sort of statements that have been
made by the courts and, in particular, this Court
and most recently in BAHRI KURAL's case as to the

state of mind which is necessary to establish the

common law equivalent concept of mens rea.

TOOHEY J:  Say there had been no record of interview or at

any rate no statements by the applicant as to his

hopes or expectations of finding some money?

MR MURRAY:	Say there had not been?
TOOHEY J:	Say there had not been, would that have mattered

for the purposes of establishing the offence?

MR MURRAY: It would have raised much more sharply for the

Crown in this case the difficulties of proof which

are the sort of elements of difficulty to which this Court referred in BAHRI KURAL's case. One would have had to find something in the factual

circumstances which would indicate that the money

was taken, W€ would say, either for the purpose -

that the taxi was interfered with either for the

purpose of gaining access to the money or, at least,

knowing that money was likely to be there, in

the context of the indictment which charged the

stealing of a sum of money.

BRENNAN J: It seems to me that it is a rather large step

to move from the common law notion of mens rea

as applied to a statutory federal offence to an

equation with the requirements of section 23 dealing

with acts which are done independently of the

exercise of the will.

MR MURRAY: If it please Your Honour, I take Your Honour's

point. We would have thought that the importation

of the common law concept in that way is, if anything,

a step which is generous to the applicant. The

alternative view is that that act - that physical

act - which does have the effect of moving or

interfering with the money, if that is the willed

act, would suffice for the purposes of section 23

without any knowledge of the money being present

and I resisted - - -

BRENNAN J:  I do not know whether even we need to concern

ourselves with knowledge if we have intent. After

all, you have got intent ex hypothesi here otherwise

you have not got any grounds for a conviction.

MR MJRRAY: Quite.

ClT32/l/AC	41	4/8/88
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BRENNAN J: If you are into the conditional intent area then

you do not have any grounds on which you can get

a conviction. So, if you got a movement of the

money, in fact with an intention to take the money

that is moved, then the only question that remains

is whether the act of moving the money with that
intention is an act which occurs independently

of the exercise of the accused's will.

MR MURRAY: In what Your Honour says I find nothing which

the respondent would quarrel.

BRENNAN J:	I would not have thought you would.
MR MURRAY:	But, it is perhaps a more favourable view of

the operation of section 23 than I have been espousing or that has been necessary for the

respondent to adopt in this case.

BRENNAN J: Perhaps not a more favourable view, it is a question

of if you have got intent then the problems of

section 23 do not really loom very large because

the character of the act that is done is, so far

as voluntariness is concerned, established.

(Continued on page 43)

ClT32/2/AC	42	4/8/88
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MR MURRAY: If it please the Court. In that case, of course,

one would leave in a rather different context

the question of ignorance to which I have been

adverting.

BRENNAN J: If there was ignorance then it may well be

a question of whether the act which is done,

which may be just simply driving a car, is a

voluntary act of moving money and one could not
then ascribe to the accused the voluntary act

of moving money.

MR MURRAY:  May it please Your Honours, that is all that

we would wish to have clearly before the Court

as our submission. It was, at one stage in

Your Honour's reasons in ILICH's case - there was at one stage a reference to the possibility that section 24 of the Code might have some part

to play in this or in related questions. In
that case it was suggested, for example, that
the accused, who received the money which was

in fact an overpayment, would have had available

to him to rely upon the proposition that he

honestly and reasonably believed that he had

received that to which he was entitled and no more and that would be so but it seemed to us

that in the context of facts like those which

present themselves in this case it would add

nothing to refer to section 24 - it adds nothing

to the concept of the willed act of taking to

refer to section 24.

BRENNAN J: There is no relevant mistake here so 24 does

not arise.

MR MURRAY:  So it would not be necessary for him to establish

in the context of this case that he believed -

that he honestly and reasonably believed that
the taxi contained no money. It would be still

necessary for the Crown to negate the proposition

that the taking of the money was not a willed

act. The respondent, I think, would not wish

to take it any further except to say that our

understanding of the law expressed in that way

seems to us to be the basis upon which the majority

of the Full Court has approached the matter and,

for example, at page 181 of the application book

His Honour Mr Justice Wallace simply observes

that:

The fact is, however, that the respondent

had taken the taxi with the money
subsequently found therein for the very

purpose of obtaining whatever money was

there.

And he comes back to that proposition at

page 182 of the papers, at the bottom, line E:

ClT33/l/ND	43	4/8/88
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The act of stealing a sum of money was complete when the money in the taxi was

driven away with it: s 371(6). The taxi

was removed for that express purpose.

And that would certainly seem to satisfy the

requirements of law in terms of the Code. If

I may just make the observation, His Honour

the Chief Justice, at page 175 of the papers,

at line C particularly, makes the observation

that:

The respondent did not steal Rendall's

taxi -

and the applicant, so far as we are concerned,

did not steal Rendall's taxi -

and the taking of the taxi cannot, I think,

be held to be a fraudulent taking within

the meaning of s. 371(2) of the Code of

all things in it.

And that statement, so far as it goes, would

clearly be right, in our respectful submission,

on the facts but His Honour, in the reasoning,

needed in our submission, to take the matter

further to consider - or, in the terms of the

facts of this case, what was the purpose of the

taking of the taxi and what was the state of

mind of the applicant in relation to the particular

thing charged as being the subject of a stealing?

If it please the Court.

(Continued on page 45)

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MASON CJ:	Thank you, Mr Murray. Yes, Mr Wallwork.
MR WALLWORK:	Just two very small matters, Your Honours.

KURAL's case, to which my learned friend has referred, was a completed act, or completed offence. It does

not attract from the applicant's arguments on the

completeness of this matter. It does not take this

case out of section 4, in our submission. The

other one is that in this case the applicant

drove the taxi away, we submit, in the hope that

he would find money, and he did not. He never

completed the act of taking the money or stealing

the money. That is all we would like to say,

thank you, Your Honours.

MASON CJ:  Thank you, Mr Wallwork. The Court will adjourn

for a short period of time in order to determine

what course it will take in bhis matter.

T34	AT 12.22 PM SHORT ADJOURNMENT
UPON RESUMING AT 12.35 PM:
MASON CJ:  This is an application for special leave to appeal

against an order of the Court of Criminal Appeal

.of Western Australia allowing an appeal by the

Crown. By that order the Court set aside a verdict

of not guilty by direction of an offence of robbery
with actual violence under section 391 of the Code

and also set aside a verdict of guilty of attempted

stealing in the purported exercise of the power

conferred by section 690(3). The court ordered

a new trial of the charge of armed robbery under

section 391. The applicant submits that the Court

of Criminal Appeal should have dismissed the appeal	on the ground that there was no evidence to support
a taking, and thus a stealing, within the meaning
of sections 371 and 391,of the money in the taxi.
ground that the applicant, by driving away the taxi The majority rejected this submission on the
from which he had expelled the driver, took the
wallet containing the sum of money which was in the
taxi. The applicant contends that the taking of
the taxi could not constitute a taking of the money
in it because a taxi, unlike a wallet or a safe,
is not a natural container or receptacle for money
and because the applicant did not know that there
was money actually in the taxi.

The short answer to this contention is that

there was evidence to support an inference that the

ClT35/l/MB	45
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applicant took the taxi in the belief or expectation
that there was money in it,with the then present

intention of taking and permanently depriving the

driver, Rendall, of that money, that being the

applicant's sole reason for driving the taxi away.

In these circumstances the movement of the taxi

constituted a movement of the money within the

meaning of section 371(6). The Court of Criminal

Appeal was therefore correct in concluding that

there was evidence to support a taking.

The applicant raises no point with respect to the setting aside of the conviction of attempted

stealing.	The application for special leave to
appeal is therefore refused.	The Court will now

adjourn until 11 o'clock tomorrow morning.

AT 12.38 PM THE MATTER WAS ADJOURNED SINE DIE

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