Criminal Law (W.A.)—Stealing—Fraudulent taking or fraudulent conversion—Taking deemed fraudulent if done with intent to deprive owner of thing or property in it—Overpayment of debt—Creditor unaware of overpayment—Retention after discovery of mistake—Whether ownership of money passed—Whether conversion—Criminal Code (W.A.), s 371.
Decisions
GIBBS C.J.: After a trial in the District Court of Western Australia the applicant was convicted on a charge that on 24 September 1984 at Bridgetown he stole the sum of $600 in money the property of one Peter Glen Brighton. An appeal to the Court of Criminal Appeal of Western Australia was dismissed. He now seeks special leave to appeal to this Court.
2. Shortly stated, the facts of the case were as follows. The applicant, a veterinary surgeon, had been acting as a locum tenens for Mr Brighton in the latter's practice at Bridgetown. Mr Brighton returned to Bridgetown on the evening of 23 September, and on the following afternoon he discussed with the applicant the amount that was owing to the latter for his services. There seems no room to doubt that Mr Brighton was upset and agitated during this conversation - he said that this was because he found the house and clinic, which the applicant had been occupying, in a chaotic state; the applicant, on the other hand, endeavoured to elicit in evidence that Mr Brighton's agitation was due to some matrimonial difficulties, but the learned trial judge disallowed questions put for that purpose. The applicant and Mr Brighton gave conflicting versions as to what occurred on the afternoon of 24 September. It was common ground that the applicant signed an acknowledgment that he had received $1,176 from Mr Brighton for "locum veterinary work and all incidental costs". Mr Brighton said that this sum was agreed upon in discussions and that he then handed $1,176 in notes to the applicant who counted the notes and signed the receipt. He said that after he made the payment he had some money remaining, some of which, amounting to $600, he placed in a Telecom envelope which he left on the table. The telephone then rang and he left the room to answer it and after that walked outside to say goodbye to the applicant, who had by that time gone to his vehicle. When he returned to the room he found that the $600 was missing from the envelope, and that some papers were missing. That evening he telephoned the police. Two days later the missing papers were found at his clinic.
3. The applicant said that he had not finished calculating the amount owing to him when Mr Brighton asked him to sign the receipt. He at first refused. Then Mr Brighton threw onto the table in front of him first the Telecom envelope with a wad of notes inside it and then two other bundles of notes. Mr…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Ilich v The Queen
Sign in free to access the full text
Details
AGLC
Ilich v The Queen [1987] HCA 1
Case
[1987] HCA 1
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of Ilich against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant and the proper application of the law relating to self-defence in the context of the trial.
The High Court was required to determine whether the trial judge had erred in admitting evidence obtained from the appellant, specifically statements made by him and items seized from his person, on the basis that they were unlawfully obtained. Furthermore, the Court had to consider whether the summing up to the jury on the issue of self-defence adequately reflected the relevant legal principles, particularly concerning the appellant's belief as to the necessity of using force.
The Court held that the evidence in question was not unlawfully obtained, as the police had acted within their powers under the relevant legislation at the time of the appellant's apprehension and search. Regarding self-defence, the Court affirmed that the jury must consider the circumstances as the accused believed them to be, even if those beliefs were mistaken, and then determine whether the force used was reasonably necessary in the circumstances as the accused believed them to be. The trial judge's directions were found to be deficient in this regard, as they did not sufficiently convey the subjective element of the belief required for self-defence.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.