Harman v Conneely
[2020] WASC 104
•30 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HARMAN -v- CONNEELY [2020] WASC 104
CORAM: SMITH J
HEARD: 17 MARCH 2020
DELIVERED : 17 MARCH 2020
PUBLISHED : 30 MARCH 2020
FILE NO/S: SJA 1122 of 2019
BETWEEN: DON HARMAN
Appellant
AND
EOGHAN CONNEELY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE K M TAVENER
File Number : MI 1268 of 2019
Catchwords:
Criminal law - Appeal against conviction - Fraudulent taking - Fraudulent conversion - Unreasonable and unsupportable verdict - Whether evidence before the court sufficient to find intention to permanently deprive the owner of property
Legislation:
Criminal Code (WA), s 7(b), s 7(c), s 7(d), s 371(1), s 372(2), s 371(6), s 378
Evidence Act 1906 (WA), s 79C
Result:
Leave to appeal granted
Appeal allowed
Conviction set aside
Judgment of acquittal entered
Category: B
Representation:
Counsel:
| Appellant | : | Mr S Brennan |
| Respondent | : | Ms M Yeung |
Solicitors:
| Appellant | : | Damien Cripps Barrister & Solicitor |
| Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Birdsall v The State of Western Australia [2019] WASCA 79
Clarke v The State of Western Australia [2018] WASCA 14
Costa v The State of Western Australia [2019] WASCA 200
Harwood v The State of Western Australia [2016] WASCA 8
Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
Martincic v The State of Western Australia [2019] WASCA 134
R v Angus [2000] QCA 29
R v Solomon [1959] Qd R 123
R v Stevens [2014] QCA 286; (2014) A Crim R 103
SMITH J:
The appeal and the result
The appellant entered a plea of not guilty to a charge that at Ellenbrook, on and between 29 August 2018 and 30 August 2018, he stole eight leather reclining couches, two Dynamics speakers and a garden ornament, valued at approximately $6,300, the property of Sandra Perkins; contrary to s 378 of the Criminal Code (WA).
Following a trial on 16 August 2019, 21 August 2019 and 26 August 2019, on 30 August 2019, the magistrate delivered extemporaneous reasons for decision and found the appellant guilty of stealing the speakers and the garden ornament, but not the reclining couches. The appellant was fined $500 and a spent conviction order was made.[1] The appellant was also ordered to pay costs of $205.30.
[1] The magistrate found that there was no evidence led as to the value of the property. He observed that the speakers and the ornament had no value from a tax point of view, but he accepted that they had some value; ts 30 August 2019, page 6.
The appellant appeals against his conviction on the sole ground that the verdict is unreasonable and unsupported by the evidence.
At the hearing of the appeal, the respondent conceded that the appeal should be allowed, the conviction set aside, and a verdict of acquittal entered.
After considering the written submissions filed by the parties and hearing oral submissions, I agreed that the concessions made by the respondent were properly made.
These are my reasons for granting leave to appeal, setting aside the conviction, and entering a judgment of acquittal.
The evidence
The evidence given by the prosecution witnesses and the appellant were not substantially in dispute.
The prosecution called three witnesses and the appellant gave evidence on his own behalf. The first prosecution witness was, Ms Kate Gall, a property manager employed by Ray White Ellenbrook who managed the Ellenbrook property in July 2018 and rented it partly furnished to the appellant. The second prosecution witness was, Ms Sandra Perkins, the owner of the Ellenbrook property and the items specified in the charge. The third prosecution witness was, Senior Constable Eoghan Conneely, who interviewed the appellant on 29 November 2018 in relation to the charge.
Ms Gall gave evidence that in early July 2018, she became the property manager of 2 Crossland Avenue, Ellenbrook, which had been for some time leased to the appellant. She subsequently took steps to have the appellant evicted from the premises following a dispute about unpaid rent. Sometime after 31 July 2018, Ms Gall was informed that the appellant had moved out of the premises. As a result, she inspected the premises and ascertained that eight recliners, two Dynamic speakers and a garden ornament that had been listed in a property condition report (as property belonging to the owner of the premises prepared prior to the appellant moving into the property), were missing.
Ms Gall subsequently made attempts to contact the appellant to speak to him about the missing items but was unsuccessful.
A copy of the property condition report was tendered into evidence in the trial as a business record, pursuant to s 79C of the Evidence Act 1906 (WA).
It is clear from Ms Gall's evidence that she was not involved in the initial rental of the premises to the appellant. Nor was she involved in the preparation of a property condition report that was prepared prior to, or at the commencement of, the appellant's tenancy of the premises. A copy of this report was not sighted by the appellant. Nor was there any evidence before the court that he had been sent a copy of the report after its preparation.
Senior Constable Conneely interviewed the appellant on 29 November 2018. The record of interview was tendered into evidence at the trial as exhibit 3. A summary of what the appellant said in the record of interview is as follows:[2]
(a)he leased the property for about two years;
(b)there was little furniture in the Ellenbrook property when he moved in but when he moved out he had taken the eight recliners because:
(i)when he first moved in to the Ellenbrook property he was told by the property manager (who was managing the property at that time) that the recliners belonged to the old tenants and the owners of the property did not want them; and
(ii)he offered to buy the recliners but the property manager told him that was not necessary, that he could throw them out or keep them if he wished;
(c)when told by Senior Constable Conneely that there were speakers missing from the Ellenbrook property, the appellant after thinking about that said he recalled that there had been two small speakers on one of the walls and that he did not know, but it was possible that they were moved by mistake (to his rental property in Morley) by his associates who helped him move his furniture; and
(d)that he had the garden ornament but that it had been moved by mistake by his associates when he moved out. He also said that it was already broken and he did not want to take it back.
[2] Exhibit 3. It is noted that the appellant speaks English as a second language. However, once the speakers and garden ornament were properly described to him he was able to answer the officer's questions without any difficulty.
Senior Constable Conneely subsequently executed a search warrant and seized the recliners, the two small Dynamics speakers and the garden ornament. Each of the items were returned to the owner of the property. It was his evidence that all of the items appeared to be in good condition.[3]
[3] ts 21 August 2019, pages 11 - 12.
After executing the search warrant Senior Constable Conneely spoke to Ms Gall, but did not speak to the property manager who managed the Ellenbrook property and dealt with the appellant when he first entered into the lease.[4]
[4] ts 21 August 2019, page 18.
Ms Perkins gave evidence by video‑link from South Hedland. Ms Perkins' evidence was that she is the owner of the property at 2 Crossland Avenue, Ellenbrook and that the property was rented with some furniture that included the eight leather lounge reclining chairs, a television screen, theatre controls, and the garden ornament. It was also her evidence that she did not give permission for any of these items to be removed from the house, or otherwise instruct any of the property managers who had managed the property that she no longer wanted to retain (ownership) of the recliners.
The appellant's evidence at trial was substantially consistent with what he had said to the police when he was interviewed.
At the commencement of the trial, the appellant's counsel formally admitted that the appellant was in possession of the eight reclining couches, and consequently conceded that the appellant had knowledge of them (when they were removed from the Ellenbrook property). The appellant also formally admitted that the Dynamics speakers and the garden ornament were located by the police at his address in Morley (but relevantly did not admit knowledge or possession).
The appellant's evidence at the trial was that, as a result of a dispute about maintenance, he did not pay rent for a while which resulted in the demand that he move out of the Ellenbrook property.[5]
[5] ts 26 August 2019, page 44.
His evidence was also that one of his friends and four other men helped him move out with his van and a removal truck.[6] He stated that they (the real estate agent) wanted him to empty the house and that was the reason why he moved everything including the 'sofa' (the recliners).[7]
[6] ts 26 August 2019, page 40.
[7] ts 26 August 2019, page 40.
The appellant stated he was unaware when he first moved into the Morley house (after moving out of the Ellenbrook property) that the Dynamics speakers were in the Morley house, because he had three or four speakers but he later became aware that he had them.[8] When cross‑examined, the appellant asserted that he was not aware the Dynamics speakers were at his house in Morley, until he was informed of that fact by the police when he was interviewed on 29 November 2018.[9] He also asserted that the Dynamics speakers were moved by other persons from his former rental premises by mistake and that he did not personally carry the Dynamics speakers.[10] He also said that he had many speakers and he did not know '[what] belong[s] to who' because his children 'handl[e] the sound system for the cinema'.[11]
[8] ts 26 August 2019, page 35.
[9] ts 26 August 2019, page 47.
[10] ts 26 August 2019, page 41.
[11] ts 26 August 2019, page 41.
The appellant said when cross-examined that he told the men who helped him move to bring everything and that they bought the concrete garden ornament by mistake. When he found it in his new house already broken, he asked his son 'why is this one here?'[12]
[12] ts 26 August 2019, page 41.
It was also the appellant's evidence that after he moved out of the Ellenbrook property he was not contacted by the real estate agents who managed the property.[13] He also stated that whilst he had received property management reports for other properties he had rented, he did not receive a copy of the property management report for the Ellenbrook property.[14]
[13] ts 26 August 2019, page 41.
[14] ts 26 August 2019, page 43.
The magistrate's findings
His Honour found the appellant not guilty of stealing the recliners. In making this finding the magistrate found that:[15]
(a)the appellant had provided an explanation in his video record of interview that the real estate agent who was managing the property, at the time he leased the premises, had given him permission to take the property; and
(b)in circumstances where the investigating officer did not take any steps to check whether the appellant's explanation was correct, (reasonable) doubt was raised.
[15] ts 30 August 2019, page 5.
His Honour found the appellant guilty of stealing the speakers and the garden ornament. In making this finding, his Honour found that the appellant did not have permission to remove these items from the Ellenbrook property, and although it was the appellant's agents who had taken the items, his Honour found that the appellant was still responsible.[16] His Honour's reasons were:[17]
As to the speakers, he admits they are in his possession. He said they were in his possession by mistake. They are certainly in the property condition report.
He said the friends took them by mistake - that those friends were taking those items under his direction. They were then in his house. They remain there. Even if words had been spoken, which I think was raised by Mr Harman, that, effective, he could empty the house, that does not include permission to take property not belonging to him. That's the question of abandonment. The water feature, I apply the same position to, that is, there was admissions that it was in [his] possession.
The possession was in ‑ was by mistake. Quite a big item. Although friends may have moved that water feature, it was, clearly, something that shouldn't have been taken from the house. So looking at that, there were - those two items were both removed and kept by Mr Harman.
Legal principles - whether a verdict of guilty should be set aside because, having regard to the evidence, the verdict was unreasonable or unsupported
[16] ts 30 August 2019, page 6.
[17] ts 30 August 2019, pages 5 ‑ 6.
The general principles governing an appeal on this ground are well‑established. These are:[18]
(1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
(5)A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(6)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
(7)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appellate court which has not seen or heard the witnesses called at trial.
[18] Costa v The State of Western Australia [2019] WASCA 200 [210].
Legal principles ‑ s 371 of the Criminal Code ‑ fraudulent conversion
The appellant was charged with stealing under s 378 of the Criminal Code. The term 'steal' is defined in s 371(1) to mean a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property.
Pursuant to s 371(2) of the Criminal Code, a person fraudulently takes or converts property if he or she does so with one of the intents listed, including an intention specified in s 371(2)(a) to permanently deprive the owner of the thing or property of it or any part of it. Section 371(6) relevantly provides that the act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.
If the appellant was to be found guilty of fraudulently taking or converting the property, providing it was found that the taking or conversion was done with one of the intentions prescribed in s 371(2)(a) to s 371(2)(f), no further state of mind was necessary.[19]
[19] Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110, 115 (Gibbs CJ); Harwood v The State of Western Australia [2016] WASCA 8 [116]; Martincic v The State of Western Australia [2019] WASCA 134 [49].
On the facts before the magistrate, his Honour was required to consider whether the appellant had stolen the property by fraudulently taking or fraudulently converting to his own use (being things that had been taken by others), that is, the Dynamic speakers and the garden ornament, with an intention to permanently deprive the owner.
It is contended on behalf of the appellant in written submissions filed before the hearing of the appeal that, the magistrate's finding that the appellant through his agents, had taken the Dynamics speakers and the garden ornament was a finding by inference that the acts of the appellant came within s 7 of the Criminal Code. I do not agree that this inference was drawn by his Honour.
It would not have been open to his Honour, and nor did he find that the appellant was criminally responsible for the initial taking by his associates as an aider pursuant to s 7(b), s 7(c), or 7(d) of the Criminal Code.
Pursuant to s 7(b), a person is criminally liable if he or she does an act or makes an omission for the purpose of enabling or aiding another person to commit the offence. Pursuant to s 7(c), a person is criminally liable if the person aids another person in committing the offence. Pursuant to s 7(d), a person is criminally liable if he or she counsels or procures another to commit the offence. However, a person will not be deemed to have committed an offence as an aider under s 7(b) or s 7(c) unless it is proven beyond reasonable doubt, among other matters, that the person alleged to be the aider had actual knowledge of the facts which constitute the offence (that is, actual knowledge of the essential facts constituting the offence that was being or about to be committed, or might be committed by the principal).[20]
[20] Birdsall v The State of Western Australia [2019] WASCA 79 [113(b)] (Buss P & Mazza JA).
In Birdsall v The State of WesternAustralia, Buss P and Mazza JA also explained (albeit in a different context as their Honours were required to consider whether an aider could be convicted without a person being convicted as a principal):[21]
Section 7(b), s 7(c) and s 7(d) are predicated upon and operate '[w]hen an offence is committed'. An offence is committed, for the purposes of s 7(b), s 7(c) or s 7(d), when the relevant acts or omissions by 'the aider' or 'the counsellor or procurer' and 'the principal' (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur, and not when 'the principal' is convicted. Also, the deeming provisions in s 7(b), s 7(c) and s 7(d) are engaged when the relevant acts or omissions by 'the aider' or 'the counsellor or procurer' and 'the principal' (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur. That is, an alleged 'aider' or an alleged 'counsellor or procurer' is 'deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it' when those relevant acts or omissions (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur, and not when 'the principal' is convicted. See s 7 read with the definition of 'offence' in s 2.
[21] Birdsall v The State of Western Australia [2019] WASCA 79 [158] (Buss P & Mazza JA).
His Honour accepted the appellant's evidence that the Dynamic speakers and the garden ornament came to be in his home in Morley as they may have been taken by mistake by his associates who helped him move from the Ellenbrook property.
When regard is had to the evidence, his Honour's finding that the Dynamic speakers and the garden ornament had been taken by the appellant's agents by mistake, and that the appellant's possession was by mistake, was the only finding open on the evidence. His Honour also appeared to have accepted the appellant's evidence that he had been told by the property manager managing the Ellenbrook property to 'empty the house'.
In light of these findings of fact, an inference that his Honour had found that the appellant came within s 7(b), s 7(c), or s 7(d) of the Criminal Code cannot be drawn, this is because on these facts as found by his Honour, his Honour did not make a finding of actual knowledge. Nor would such a finding be open on the evidence.
Further, on the evidence a direction to his friends to 'bring everything' when removing his possessions from the Ellenbrook property without more cannot be constructed as an act for the purpose of enabling or aiding another person to commit an offence. A person is only liable as an aider pursuant to s 7(d) if they consciously counsel or procure another to commit an offence.[22]
[22] R v Solomon [1959] Qd R 123, 128 (Phillip J & Mansfield CJ agreeing); applied in Clarke v The State of Western Australia [2018] WASCA 14 [561]; see also [556] (Buss P, Mazza JA agreeing); L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [53] (Martin CJ, Mazza JA & Mitchell J).
I now turn to whether the verdict of guilty is unreasonable and unsupported by the evidence, on grounds that the findings made by his Honour were not sufficient to support a verdict, of fraudulently converting the Dynamics speakers and the garden ornament to the appellant's own use. The appellant could only be guilty of stealing these items if, when he came to be aware that the speakers and garden ornament were at his new address, he formed the intent to permanently deprive the owner of these items and converted them to his own use (or the use of any other person).
It is established that mere possession is not sufficient to establish an act of stealing is complete pursuant to s 371(6) of the Criminal Code.
In Ilich v The Queen, Ilich, a veterinarian, was mistakenly overpaid when acting as a locum. He did not discover the overpayment until after he had left the residence of the veterinarian that he performed the locum services for. He also discovered he had some mail and other items which he had mistakenly taken with him. He returned the mail and the other items the next morning but not the overpayment. He put the overpayment in the car, pending a decision about what to do with it. Soon after, he was interviewed by the police and the money was found in his car. He was convicted for stealing the overpayment. The majority of the High Court found that the mistaken overpayment did not prevent the property in the whole amount passing to Ilich and, accordingly, he had neither fraudulently taken the surplus nor converted it upon discovering the overpayment. Consequently, his conviction was quashed by the High Court.
In Ilich, Gibbs CJ agreed that the conviction should be quashed but his Honour was in the minority on the point as to whether property in the whole amount had passed to Ilich. However, his Honour made the following remarks relevant to whether possession is sufficient to establish conversion:[23]
If the applicant's version of events is accepted, he did not take the money with any of the intents mentioned in s 371(2). He can be guilty of stealing only if he converted the money with one of those intents. The word 'converts' which appears in s 371 is not defined in the Code.
…
[T]he learned trial judge did not mention conversion but instead said that the accused would be guilty if, finding the money to be in his possession, he intended to use the money at his own will, even though he might have intended subsequently to repay it to the owner. In other words, his Honour wrongly equated the fact of possession with an act of conversion. In the second passage which I have cited, the example of a customer who is given change from $50 when he has handed over a $20 bill was misleading. A person who in those circumstances was given the change and walked away would be guilty of stealing under the Code only if the jury were satisfied that his actions amounted to a conversion of the money and only if he had the necessary intention. There is no rule of law that a person who in those circumstances fails to tell the cashier immediately that he has been overpaid will necessarily have converted the money, although of course a failure to do so might be very strong evidence of both conversion and intention.
[23] Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110, 115, 119 ‑ 120.
The point made by Gibbs CJ in Ilich was also made by the Court of Appeal of Queensland in R v Angus.[24] In that matter, Angus had hired two video games and a control pad, and subsequently failed to return the items. Pincus JA found that whilst there was evidence that Angus had taken the items, the taking was not shown to have been fraudulent as it could not safely be inferred that at the time the items were hired, there was an intention to steal them. Consequently, the conviction could not be supported on the basis that by retaining possession of the items, Angus had converted them.[25] Pincus JA observed:[26]
It does not appear to me that keeping possession of hired or borrowed goods beyond the agreed date for return can fit within this definition.
Looking at the case more broadly, it would need clear statutory language to establish that merely failing to return hired or borrowed goods on the agreed date is an offence, or prima facie evidence of an offence. The Crown would have it that if the goods are not only held beyond the agreed date, but not returned by the end of a long period of time, that shows an offence has been committed. The answer is that the Code requires not just passive possession, but an act of conversion; that must be or include a physical dealing with the goods and the dealing must in my opinion be such as to be inconsistent with the true owner's rights. Leaving a borrowed book on a shelf is not an act of conversion, no matter how long the book stays there.
Here, it is possible the chattels were fraudulently converted, for example by being sold or given away, but the failure to return them could not satisfy any rational jury, beyond reasonable doubt, that there must have been a fraudulent conversion. The evidence supported the view that the appellant had behaved wrongly, from the point of view of the civil law, but was inadequate to prove the commission of an offence.
[24] R v Angus [2000] QCA 29; applied in R v Stevens [2014] QCA 286; (2014) A Crim R 103 [10] (Muir, Fraser & Morrison JJA agreeing).
[25] R v Angus [2000] QCA 29 [14] (McMurdo P & McPherson JA agreeing).
[26] R v Angus [2000] QCA 29 [15] - [17] (McMurdo P & McPherson JA agreeing).
As the respondent points out, his Honour did not make any finding that after the Dynamics speakers and garden ornament had been taken to his house in Morley, the appellant dealt with the items by some physical act beyond the findings made by his Honour that the items remained at his house and they were kept by him. These findings cannot be characterised as findings other than a finding of mere possession.
The respondent also points out that:
(a)whilst Senior Constable Conneely gave evidence that the garden ornament was on the front patio and the Dynamics speakers were found on a shelf in the living room, he could not say whether those speakers were connected; and
(b)there was no evidence before his Honour as to who had placed the items at the locations where they were found by the police, or when, or what, if anything, the appellant had done which could at law be said to constitute an act that was inconsistent with the true owner's rights.
In any event, the uncontradicted evidence of the appellant in respect of the Dynamics speakers is that he did not know that he had (possession) of them until the police informed him of that fact.
Conclusion
In circumstances where the magistrate accepted that the initial taking of the Dynamics speakers and the garden ornament were by the appellant's friends and by mistake, I agree that the respondent properly conceded that it was not open to the magistrate to simultaneously find that there was a coinciding fraudulent intent (even though his Honour did not expressly make such a finding). This is because the factual findings made by his Honour regarding the circumstances of the taking, were insufficient to make out the necessary elements of a fraudulent intent, beyond reasonable doubt.
I also agree that the respondent has properly conceded that the findings made by his Honour were insufficient to find that once the appellant realised he was in possession of the items, the appellant converted the property, as the findings made did not go beyond mere possession and establish a physical dealing with the goods that were inconsistent with the true owner's rights.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith30 MARCH 2020
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