Liristis v Director of Public Prosecutions (NSW)

[2016] NSWCA 66

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Liristis v Director of Public Prosecutions (NSW) [2016] NSWCA 66
Hearing dates:	1 March 2016
Decision date:	07 April 2016
Before:	Sackville AJA at [1]; Emmett AJA at [66]; Adamson J at [80]
Decision:	1. Summons dismissed. 2. The applicant pay the first respondent’s costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review of District Court decision dismissing an appeal from a conviction in the Local Court – whether the District Court Judge committed a jurisdictional error – larceny of a motor vehicle as a bailee – Crimes Act 1900 (NSW) s 125 – whether District Court Judge failed to make a finding that the applicant’s conversion of the vehicle had been fraudulent – whether the District Court Judge addressed the applicant’s claim to a repairer’s lien over the vehicle – whether primary Judge erred in determining that the applicant had no genuine belief in a claim of right
Legislation Cited:	Crimes Act 1900 (NSW), s 125 Crimes (Appeal and Review) Act 2001 (NSW), ss 11(1), 18(1), 18(2), 19(1), 20 Criminal Procedure Act 1986 (NSW), ss 11, 12(1), 15(2), 16(1)(g) District Court Act 1973 (NSW), s 176 Motor Dealers and Repairers Act 2013 (NSW), s 190 Motor Vehicle Repairs Act 1980 (NSW) Personal Property Securities (Commonwealth Powers) Amendment Act 2009 (NSW), s 3 Registration of Interest in Goods Act 1986 (NSW), s 3B Supreme Court Act 1970 (NSW), s 69 Criminal Code (WA), s 371
Cases Cited:	Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97 Director of Public Prosecutions (NSW) v Harrison [2008] NSWSC 349 Ilich v The Queen [1987] HCA 1; 162 CLR 110 Liristis v The Queen (District Court (NSW), 20 June 2014, unrep) Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 R v Fuge [2001] NSWCCA 208; 123 A Crim R 310 R v Kastratovic (1985) 42 SASR 59 R v Lawrence [1997] 1 VR 459 R v Stringer (2000) A Crim R 198 Robbins v Commissioner of Taxation [1974] HCA 58; 129 CLR 332 Veness v Hodge [2015] NSWCA 20 Wills v Petroulias [2003] NSWCA 286; 58 NSWLR 598
Category:	Principal judgment
Parties:	Tony Liristis (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) (Submitting appearance)
Representation:	Counsel: Mr PR Glissan (Applicant) Mr DT Kell (First Respondent)   Solicitors: Director of Public Prosecutions (NSW) (First Respondent)
File Number(s):	2015/69532
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Jurisdiction Date of Decision: 20 June 2014, 12 December 2014 Before: Finnane DCJ File Number(s): 2011/402579

Judgment

1. SACKVILLE AJA: The applicant seeks an order in the nature of certiorari quashing two decisions of the District Court (Finnane DCJ) given, respectively, on 20 June 2014 and 12 December 2014. The District Court on 20 June 2014 confirmed the applicant’s conviction in the Local Court at Sutherland of the offence of larceny as a bailee contrary to s 125 of the Crimes Act 1900 (NSW) (Crimes Act). [1] On 12 December 2014, the District Court confirmed the applicant’s sentence of a period of imprisonment of 20 months, with a non-parole period of 15 months. The conviction related to a 2004 Mercedes Benz S350 vehicle which came into the applicant’s possession with the authority of the lessee of the vehicle, but which the applicant subsequently refused to return to the lessee.

   1. Liristis v The Queen (District Court (NSW), 20 June 2014, unrep) (Appeal Judgment).

2. There is no right of appeal to this Court from a decision of the District Court on an appeal against a conviction or sentence in the District Court. The applicant therefore seeks judicial review of the District Court’s decision pursuant to s 69 of the Supreme Court Act 1970 (NSW). It is common ground that the effect of s 176 of the District Court Act 1973 (NSW) is that the applicant can succeed only if he shows that the District Court committed a jurisdictional error. [2] The first respondent (DPP) opposes the application. The second respondent, the District Court, has entered a submitting appearance.

   2. Section 176 provides that no adjudication on appeal to the District Court is to be removed by any order of the Supreme Court. See Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 at [32] (Gleeson JA, Ward JA and Johnson J agreeing).

3. The applicant says that the District Court Judge committed a jurisdictional error in that his Honour:

• failed to advert to the need to find that the applicant not only converted the vehicle, but did so fraudulently;

• did not deal adequately with the applicant’s submission that he had a lien over the vehicle by reason of work he had performed and thus was entitled as against the lessee to retain possession until he received payment for the work; and

• incorrectly regarded the unreasonableness of the applicant’s belief in a claim of right as conclusive on the question of whether he actually had the belief, thereby precluding the applicant relying on the claim as a defence.

The Elements of the Offence

4. Section 125 of the Crimes Act provides as follows:

“Whosoever, being a bailee of any property, fraudulently takes, or converts, the same, or any part thereof, or any property into or for which it has been converted, or exchanged, to his or her own use, or the use of any person other than the owner thereof, although he or she does not break bulk, or otherwise determine the bailment, shall be deemed to be guilty of larceny and liable to be indicted for that offence. The accused shall be taken to be a bailee within the meaning of this section, although he or she may not have contracted to restore, or deliver, the specific property received by him or her, or may only have contracted to restore, or deliver, the property specifically.”

5. The elements of the offence relevant to the present application are that the accused:

(i)   was in possession of property as a bailee;

(ii)   took or converted the property to his or her own use; and

(iii)   did so fraudulently.

6. In Ilich v The Queen [3] Wilson and Dawson JJ explained that s 371 of the Criminal Code (WA), a provision with some similarities to s 125 of the Crimes Act, dealt with the question of whether a person in lawful possession of something could steal it, by expressly providing that a person could steal not only by fraudulently taking something but also by fraudulently converting it to his or her own use. [4] Their Honours pointed out that a person may convert something that is in that person’s possession by dealing with it in a manner inconsistent with the rights of the owner. [5] The language of s 125 of the Crimes Act implies that a person may also fraudulently take property already in his or her possession.

   3. [1987] HCA 1; 162 CLR 110.

   4. (1987) 162 CLR 110 at 124.

   5. (1987) 162 CLR 110 at 124; see also at 116 (Gibbs CJ).

7. The term “fraudulently” is not defined in the Crimes Act. In R v Kastratovic,[6] King CJ said that the:

“essential notion of defrauding is dishonestly depriving some person of money or property, or depriving him of, or prejudicially affecting him in relation to, some lawful right, interest, opportunity or advantage which he possesses.”

This statement has been treated in Australia as authoritative. [7]

6. (1985) 42 SASR 59 at 52.

7. See Wills v Petroulias [2003] NSWCA 286; 58 NSWLR 598 at [65]-[67] (Spigelman CJ, Handley and Santow JJA agreeing) and authorities cited there.

8. A claim of right made by an accused is relevant to whether an offence under s 125 of the Crimes Act has been committed. That is because a bona fide claim of right to the property in question is inconsistent with the mens rea that is an essential element of the offence. [8] The relevant principles were summarised by Wood CJ at CL in R v Fuge:[9]

   8. R v Fuge [2001] NSWCCA 208; 123 A Crim R 310 at [22] (Wood CJ at CL, Heydon JA and Sully J agreeing).

   9. [2001] NSWCCA 208; 123 A Crim R 310 at [24].

“(a)   the claim of right must be one that involves a belief as to the right to property or money in the hands of another;

(b)   the claim must be genuinely, ie honestly held, it not being to the point whether it was well founded in fact or law or not;

(c)   while the belief does not have to be reasonable, a colourable pretence is insufficient;

(d)   the belief must be one of a legal entitlement to the property and not simply a moral entitlement;

…

(f)   the claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, … although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them;

(g)   the claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches;

…

(i)   it is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.” [Citations omitted.]

The Criminal Proceedings

9. The applicant was arrested and charged on 8 December 2011 with an offence against s 125 of the Crimes Act. The Court Attendance Notice provided details of the offence as follows:

“Crimes Act 1900, Section 125

Larceny as bailee

between 12:00 pm on 05/11/2009 and 10:00 am on 10/01/2010 at Penshurst.

did, while being the bailee of certain property, to wit, 1 x blue Mercedes S350 sedan bearing New South Wales number plates PJW62A, the property of Peter White fraudulently takes [sic] the same property into which it had been exchanged to his own use to wit, 1 x blue Mercedes S350 sedan bearing New South Wales number plates PJW62A.”

The Local Court Proceedings

10. The charge was heard in the Local Court over five hearing days between 4 June 2012 and 15 April 2013. The applicant represented himself on the first four days of the hearing, but submissions were made on his behalf by counsel on the fifth and final day. After hearing submissions, the Magistrate (Holdsworth LCM) delivered judgment on that day, finding the offence proven.

11. The Magistrate set out the elements of the offence as follows:

“It being a criminal case, the prosecution must prove their case beyond reasonable doubt. The elements the prosecution must prove, each of them beyond reasonable doubt, are that the accused was in possession of property, that the property has been converted to his own use and that the accused acted fraudulently in doing so. Fraudulently means dishonestly. To put it another way, a bailment exists if there has been delivery of the property to another, that the item delivered remains the property of the bailor and that the property should be returned to the bailor.”

12. Her Honour then described the background to the charge:

“Peter White leased a Mercedes car. He and the accused knew each other via a previous business relationship. On 5 November 2009 Mr White was driving the vehicle and it broke down … There was contact [between Mr White and the accused] and as a result the accused attended the roadway where the car was broken down and it is clear on all of the evidence that the accused would make some arrangements to fix the car. … The car was towed to the accused’s home. There is no dispute about that and he purported to set about fixing it.

Ultimately Mr White paid $1,500 to the accused and no more. He requested the provision of tax invoices before any further payment was made. There was also contact brokered by the accused between Mr White and a person who was apparently a parts supplier but the total amount paid towards repairs was $1,500. No tax invoices were provided to Mr White. Mr White says he asked the accused to stop working on the car and that he would make arrangements to settle the account after he was provided with tax invoices. The car was never returned. A complaint was made to the police that the car had been stolen. This charge was brought against the accused. The location of the car is unknown to this day.”

13. The Magistrate stated that the applicant’s case was that he was entitled to a repairer’s lien over the vehicle and that he had lawfully retained possession of it because Mr White had not paid the full amount due for repairs and storage. Her Honour stated that she would treat the lien claimed by the applicant as a claim of right. Accordingly, she proceeded on the basis that if the Court found that the applicant honestly exercised a claim of right, it would “negative any element of dishonesty”.

14. Before dealing with the claim of right, the Magistrate considered the applicant’s evidence that Mr White wanted the car to “disappear” so that he (Mr White) could make a presumably bogus insurance claim. Her Honour said that it was quite clear that the applicant knew where the car was located. Moreover, the evidence indicated that the “insurance job” claim made no sense. Accordingly, she rejected the applicant’s evidence on this issue.

15. The Magistrate found that there was evidence capable of showing that the applicant was in possession, or at least constructive possession, of the vehicle, given that he knew where the vehicle was located. Further, the applicant’s refusal to return the car over a period of years was evidence capable of establishing that he had converted the vehicle to his own use. The fact that Mr White was the lessee of the vehicle under finance arrangements, rather than its owner, did not prevent him being able to demand its return from the applicant.

16. In her Honour’s view, a number of factors were inconsistent with the applicant’s claim that he had a genuine belief that he was entitled to retain possession of the vehicle until amounts due to him were paid. These factors included:

• the applicant’s refusal to divulge the location of the vehicle, which was a clear indicator of his disingenuous intentions;

• the applicant’s inability to conduct a repair business, since he did not hold the licence needed to conduct the business of a motor vehicle repairer;

• the applicant’s failure to provide invoices when asked by Mr White to do so;

• the applicant’s failure to substantiate his claim that he was owed money for parts and labour;

• the applicant’s own admission that he had not repaired the vehicle and that he had not completed the work he had agreed to perform on the vehicle;

• the applicant’s “ludicrous” claim that he would have been prepared to return the vehicle to the Mercedes Benz financier, but not to Mr White; and

• the implausibility of the applicant’s assertion that he was owned money for storage fees, which was unsupported by evidence and included “nonsensical” claims.

17. The Magistrate concluded as follows:

“A bona fide belief as to the claim of right has not been sufficiently raised in the evidence in this case. I do not accept that the accused holds a lawful lien over the property. I am satisfied that Mr White exercised legal proprietary rights over the vehicle at the time he requested repairs and delivered the car to the accused for that purpose. I accept that it is clear that Mr White expected the property to be returned to him after repairs in exchange for money, that the repairs have not been undertaken, that the property remains unreturned and that the accused has no lawful right to retain the vehicle.”

18. On 5 June 2013, the Magistrate sentenced the applicant to a period of imprisonment of 20 months, with a non-parole period of 15 months.

The District Court Proceedings

19. The applicant promptly appealed to the District Court against his conviction and sentence and was granted conditional bail pending the hearing of the appeal.

20. The appeal was filed pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). Such an appeal is by way of rehearing on the basis of the evidence given in the original Local Court proceedings, unless leave is given to adduce further written or oral evidence. [10] On an appeal under s 11(1) of the CAR Act against conviction, the District Court may set aside the conviction or dismiss the appeal. [11]

    10. CAR Act, ss 18(1), (2), 19(1).

    11. CAR Act, s 20.

21. The all grounds appeal was heard over three days, on 16 and 20 June 2014 and 12 December 2014. The applicant was represented by counsel.

22. On the first day of the hearing in the District Court the prosecutor tendered the exhibits and transcript from the Local Court proceedings, including the evidence given in relation to sentencing. The applicant’s counsel tendered three additional documents, each of which had been admitted into evidence during the sentencing hearing before the Local Court. No oral evidence was adduced on the appeal.

23. The District Court Judge read the extensive material and the prosecutor and the applicant’s counsel made relatively brief oral submissions. The transcript of the proceedings indicates that the applicant’s counsel also handed up a brief outline of submissions. This Court was informed that, despite searches, it has not been possible to locate a copy of the written submissions.

24. After the argument concluded on 16 June 2014, his Honour reserved judgment. He delivered the Appeal Judgment on 20 June 2014 and confirmed the Magistrate’s finding of guilt.

25. On 12 December 2014, his Honour heard submissions on sentence. His Honour imposed the same sentence as the Magistrate, except that the commencement date for the sentence of imprisonment was altered to 27 June 2014, the date the applicant was taken into custody on unrelated charges.

The Appeal Judgment

26. The District Court Judge recorded the facts consistently with the findings made by the Local Court. The following account reflects the District Court Judge’s summary.

27. The Mercedes Benz broke down on 5 November 2009. After he arrived at the scene, the applicant told Mr White that he (the applicant) would take the Mercedes Benz to his place for safekeeping and would then arrange to get it into a yard to be fixed. A tow truck then took the vehicle to the applicant’s residence. [12]

    12. Appeal Judgment at [3].

28. It was not until about March 2010 that Mr White began to press the applicant to return the vehicle or fix it up. [13] On 26 March 2010, Mr White paid $1,500 into the applicant’s bank account as requested by the applicant, but the vehicle was still not returned.

    13. Appeal Judgment at [4].

29. Mr White asked the applicant not to perform any further work on the vehicle and stated that a tow truck would be sent to collect it. [14] This produced no result. On 2 June 2010, Mr White’s wife established that the applicant did not hold a motor vehicle repairer’s licence and was therefore not entitled to carry out repairs to the Mercedes Benz. [15]

    14. Appeal Judgment at [6].

    15. Appeal Judgment at [6].

30. The applicant moved the motor vehicle from his premises to undisclosed premises and subsequently refused to tell Mr White or the police where he had taken the vehicle. The applicant claimed to have removed the engine from the vehicle. According to the District Court Judge, this was likely, since the applicant had arranged for an NRMA inspection which confirmed the removal of the engine. [16]

    16. Appeal Judgment at [7].

31. The District Court Judge said that the applicant’s substantial defence in the Local Court was that:

“at all times he was a motor vehicle repairer and had a lien on the goods until the cost of repairs was paid. It was argued by him at the Local Court (since he appeared there on his own) that he did not steal the car at all and if he did he had a claim of right that was a genuine one, namely a belief that he was entitled to a lien on the goods until he was paid in full for the repair charges.”

32. His Honour referred to the evidence and made the following points (among others): [17]

    17. Appeal Judgment at [14], [16], [17], [18].

• it was a major part of the applicant’s case that Mr White had cheated him and had sought to involve him in a fraudulent insurance claim;

• the applicant gave evidence that was “not entirely consistent”;

• the applicant gave evidence that he had removed the vehicle’s engine, but also said that he had carried out no repair work on it;

• Mr White had repeatedly asked for tax invoices but had never received any; and

• the applicant did not hold a licence under the Motor Vehicle Repairs Act 1980 (NSW) and thus was not entitled to carry on the business of a repairer of motor vehicles.

33. The District Court Judge found that at no time did the applicant have a lien on the motor vehicle:[18]

“since he had no licence as a motor vehicle repairer. On the evidence, he was holding the vehicle for the purpose of getting it repaired by someone else. On his own admission, he carried out no repairs.”

18. Appeal Judgment at [28].

34. His Honour concluded as follows:

“[33]   The facts established in this case, in my opinion, and that of the learned Magistrate, were that the [applicant] without any consent of Mr White as the lessor/bailor of the motor vehicle, moved it from his own premises to some unknown location and then made it clear that he did not intend to return it.

[34]   In my opinion, this was conduct denying the rights of Mr White and it amounts to a conversion of the motor vehicle.

[35]   In my opinion, the [applicant] did not at any time have a genuine belief that he had a lien. He knew he had no licence, he knew the lien could arise only for repairs carried out by a licensed repairer and in any event, he carried out no repairs.

[36]   In my opinion, the [applicant] has no genuine claim of right. It is not correct to say in this case that his claim is genuine, though based on an erroneous view of the law. Rather it is correct to characterise his claim as a false one.

[37]   In my opinion, he was correctly found guilty by the learned Magistrate. I agree, with respect, in her views about the [applicant’s] lack of a bona fide belief.”

The Judicial Review Application

Matters Not in Dispute

35. Before addressing the contentions put on behalf of the applicant it is convenient to record two matters that were raised in argument but are not relied upon by the applicant.

36. The proceedings in both the Local Court and the District Court were conducted on the basis that the prosecution’s case was that the applicant, as the bailee of the vehicle, had fraudulently converted it to his own use. The Bench pointed out in the course of argument that the charge, apart from being ungrammatical, alleged that the applicant, as bailee of the vehicle, had fraudulently taken the vehicle.

37. Mr Glissan, who appeared for the applicant, did not take any point about the apparent disparity between the charge and the findings made by the Local Court and the District Court. Mr Glissan appeared to accept that there was no significant difference between a taking and a conversion for the purposes of s 125 of the Crimes Act and that in any event ss 11 and 12(1) of the Criminal Procedure Act 1986 (NSW) [19] precluded a complaint on this ground, at least on an application for judicial review.

    19. Section 11 states that the description of an offence in the words of an Act or similar words is sufficient in law. Section 12(1) provides that an indictable offence that may be dealt with summarily is taken to be sufficiently stated if stated by the use of a short expression that describes the offence in general terms.

38. The Bench also pointed out that although the charge alleged that the taking of the vehicle had occurred between 5 November 2009 and 10 January 2010, neither the Local Court nor the District Court had made a finding as to when the conversion occurred. It was also pointed out that both the Local Court and the District Court seem to have found that the applicant converted the vehicle well after 10 January 2010, since Mr White did not ask for the vehicle to be returned until 25 May 2010. Again no point was taken as to the date of conversion of the vehicle, presumably because of s 16(1)(g) of the Criminal Procedure Act 1986 (NSW). [20]

    20. Section 16(1)(g) states that an indictment is not defective for stating wrongly the time at which the offence was committed except where “time is an essential ingredient”. As to the latter expression, see R v Stringer (2000) 116 A Crim R 198 at [20] (Grove J). For the purposes of s 16(1)(g), “indictment” includes a Court attendance notice: s 15.

The Issue of Fraud

39. Mr Glissan submitted that the District Court Judge had fallen into jurisdictional error by failing to refer to or make a specific finding that the applicant’s conversion of the vehicle was fraudulent. Mr Kell, who appeared for the DPP, correctly accepted that a fraudulent conversion (or taking) is an essential element of the statutory offence of larceny as a bailee.

40. The Magistrate set out in her decision the elements of the offence created by s 125 of the Crimes Act. The District Court Judge in the Appeal Judgment referred to s 125, but did not quote its language and did not recite the elements of the offence. His Honour made specific findings that the applicant had converted the vehicle and that he had falsely claimed to believe that he was entitled to retain the vehicle until he received payment for work performed. However, as Mr Kell also accepted, his Honour did not expressly find that the applicant’s conversion of the vehicle was fraudulent.

41. In determining whether the District Court Judge’s failure to find expressly that the applicant had acted fraudulently amounts to a jurisdictional error, it is necessary to appreciate the arguments advanced on the applicant’s behalf in the District Court appeal. On the material before this Court, it can be seen that counsel then appearing for the applicant advanced two arguments. The first “in a nutshell” [21] was that there was no taking or conversion at law. The “alternative” contention was that the applicant had a genuine claim of right and that, regardless of whether the claim had a reasonable basis, the applicant’s subjective belief was inconsistent with him intending permanently to deprive Mr White of the vehicle. [22]

    21. Transcript of Proceedings, Liristis v R (District Court of New South Wales, 2011/00402597, Finnane DCJ, 16 June 2014) (Transcript AB) at 55.

    22. Transcript AB at 55, 73.

42. During oral argument, the District Court Judge put to the applicant’s counsel that the applicant’s conduct in persuading Mr White to hand over possession of the vehicle and refusing to give it back, suggested dishonesty. His Honour also put that the only possible answer was the claim that the applicant genuinely believed that he was entitled to retain the vehicle until he was paid. [23] Counsel did not disagree with this assessment, but submitted that the evidence was insufficient to justify a finding that the Crown had disproved the genuineness of the claim of right.

    23. Transcript AB at 73.

43. If the District Court Judge had failed to address an argument put to him or had not turned his mind to whether the applicant had acted fraudulently, he is very likely to have committed a jurisdictional error. But in the way the District Court appeal was conducted, once the Local Court’s finding that the applicant had converted the vehicle was upheld (as it was), the only issue to be determined was whether the Crown had disproved the genuineness of the applicant’s claim of right. Counsel for the applicant advanced no other basis for the District Court declining to find that the conversion of the vehicle was fraudulent.

44. No doubt the conduct of the appeal by the applicant’s counsel reflected the strength of the evidence against the applicant. There was no real dispute that the applicant had received possession of the vehicle, refused to return it in response to the lessee’s request, declined to reveal the whereabouts of the vehicle even to police and had performed no repairs to the vehicle (other than removing the engine). In addition, the applicant’s case on the appeal had to take account of the Local Court’s finding, amply supported by a reading of the transcript, that much of the applicant’s evidence was utterly implausible. Whether for these or other reasons, the argument in the District Court proceeded on the basis that if the applicant had converted the vehicle and if his claim of right was found not to be genuine, the conclusion that he had fraudulently converted the vehicle was inevitable.

45. I accept that it would have been preferable for his Honour to have expressly identified each element of the offence created by s 125 of the Crimes Act and to have specifically found that the Crown had established each element of the offence. But his Honour’s rejection of the applicant’s claim of right as “false” removed the only basis on which it had been argued that the Crown had not proved that the conversion of the vehicle had been fraudulent. In these circumstances, it is necessarily implicit in the Appeal Judgment that his Honour found that the applicant had fraudulently converted the vehicle.

46. This conclusion is reinforced by the District Court Judge’s opinion that the applicant had been “correctly found guilty by the learned Magistrate” and his Honour’s agreement with the Magistrate’s views about the applicant’s lack of a bona fide belief that he was entitled to retain the vehicle. [24] The Magistrate clearly appreciated that a fraudulent conversion was an element of the offence and that the only issue, once she found that the applicant had converted the vehicle, was whether he genuinely believed he had a claim of right. The adoption by an appellate court of the reasons given by a trial court does not of itself bespeak error and may be taken into account in determining the reasoning of the appellate court. [25]

    24. Appeal Judgment at [37].

    25. Veness v Hodge [2015] NSWCA 20 at [1] (Barrett JA, Adamson J agreeing), referring to Robbins v Commissioner of Taxation [1974] HCA 58; 129 CLR 332 at 341 per curiam.

47. For these reasons, despite the infelicities of the Appeal Judgment, I do not think that the District Court Judge misunderstood or failed to discharge the task he was required by statute to perform. Nor do I consider that he failed to address the arguments put to him on the appeal. I therefore do not accept the applicant’s contention that his Honour’s failure to make an express finding that the conversion was fraudulent constituted a jurisdictional error.

The Existence of a Lien

48. The applicant’s second contention was that the District Court Judge erred in failing to find that, regardless of the applicant’s subjective beliefs, he in fact had a lien over the vehicle. Mr Glissan’s submissions did not make the significance of the alleged error entirely clear. The existence of a lien arising by operation of law would not necessarily prevent a finding that an accused person acted in a manner inconsistent with the title of the person otherwise entitled to possession. Nor would it necessarily be inconsistent with the accused acting fraudulently with the intention of permanently depriving the person entitled to possession of his or her interest in the property, although the existence of a lien as a matter of law might add plausibility to a claim of right.

49. As I understood the submission it was to the effect that if a lien had arisen by operation of law at the time the applicant refused to return the vehicle to Mr White, the applicant could not be said to have converted the vehicle. Such a submission is consistent with the argument put to the District Court Judge. Little attention was paid, however, to the question of whether, assuming the primary Judge had erred in law, the error could be characterised as jurisdictional in nature.

50. Mr Glissan relied on the decision of the Full Court of the Supreme Court in Bolwell Fibreglass Pty Ltd v Foley [26] (Bolwell Fibreglass). In that case, Young CJ (with whom Kaye J agreed) held that where the owner of a chattel prevents another person completing work on the chattel, the person has a lien over the chattel as security for the work actually done. [27] Mr Glissan submitted that this principle should have been applied by the District Court Judge and, if it had been, his Honour would have held that the applicant had a lien over the Mercedes Benz vehicle for the unpaid work he had performed, even though the work was incomplete.

    26. [1984] VR 97.

    27. [1984] VR 97 at 100.

51. Mr Glissan supported his submission by pointing out that the Magistrate referred in her reasons to the minority judgment of Brooking J in Bolwell Fibreglass [28] for the proposition that a common law lien over a chattel does not arise until the work has been completed in accordance with the terms of the relevant agreement. Mr Glissan correctly observed that her Honour appears to have overlooked that Brooking J’s view was not accepted by the majority. He also correctly noted that her Honour’s reliance on Brooking J’s view played a part in her holding that the applicant was not entitled to a lien over the vehicle.

    28. [1984] VR 897 at 111.

52. An error of law by the Local Court does not establish that the District Court on appeal has committed the same error, much less that it is a jurisdictional error. Mr Glissan submitted, however, that the Appeal Judgment was affected by the same error as that made by the Magistrate and that the error prevented the District Court Judge from addressing an argument advanced on the applicant’s behalf.

53. The submission encounters an insurmountable obstacle. Counsel appearing for the Crown in the District Court appeal very properly expressly conceded that he could not rely on Brooking J’s analysis in Bolwell Fibreglass. No submission was put to the District Court Judge that a repairer cannot claim a lien over property in his or her possession unless the work has been completed. The District Court Judge’s agreement with the Magistrate’s views about the applicant’s “lack of a bona fide belief” therefore cannot be understood as ignoring or overlooking the concession made by counsel for the Crown. The contention that the District Court Judge made the same error as the Magistrate therefore must be rejected.

54. Mr Glissan contended that independently of any misapprehension concerning Bolwell Fibreglass, the District Court Judge should have found that the applicant had a common law lien over the vehicle because he had not been paid for the work he had performed. Mr Glissan did not explain why a failure to make that finding, even if erroneous, would constitute a jurisdictional error.

55. In any event, insofar as a claim of right can be discerned from the applicant’s evidence, it appears to have been a claim to retain the vehicle as security for work done under what the applicant described as “the Motor Vehicle Repairers Lien Act”. [29] The District Court Judge quoted the passage where the applicant made this claim[30] and rejected it on two grounds. The first was that the applicant did not hold a motor vehicle repairer’s licence and thus could not lawfully carry out repairs. [31] The second reason was that the applicant admitted that he had not carried out any repairs. [32] It is difficult to discern any error, legal or factual, in this reasoning.

    29. There is in fact no such legislation. The Motor Vehicle Repairs Act 1980 (NSW ) (repealed by the Motor Dealers and Repairers Act 2013 (NSW), s 190, with effect from 1 December 2014) made no provision for a repairer’s lien. Section 3B of the Registration of Interest in Goods Act 1986 (NSW) (repealed by the Personal Property Securities (Commonwealth Powers) Amendment Act 2009 (NSW), s 3, with effect from 30 January 2012) provided for the priority of a repairer’s lien on goods over “registrable interests”.

    30. Appeal Judgment at [23].

    31. Appeal Judgment at [28].

    32. Appeal Judgment at [35].

56. Mr Glissan also submitted that the District Court Judge should have considered whether the applicant had a claim of right arising out of the work said to have been done in removing the engine from the vehicle. Mr Glissan pointed to the applicant’s record of interview with the Police in which he asserted that he had spent about 11 hours on that task. Again, it is not clear how this submission amounts to anything more than a challenge to a factual finding by the District Court Judge.

57. The Court was not taken to evidence capable of indicating that the applicant based his claim of right on the work done in removing the engine from the vehicle. His evidence is not easy to follow, but his claim was apparently that he had carried out extensive, albeit unspecified, repairs on the vehicle. There is nothing in his evidence suggesting that he was entitled to retain the vehicle to secure payment simply for removal of the engine from the vehicle. For example, there is no evidence that he made a demand on Mr White for payment of any amount specifically referable to the dismantling of the engine.

58. As the District Court Judge found, the applicant never sent a tax invoice to Mr White, despite requests to do so. The applicant’s own evidence was that he demanded and received $1,500 from Mr White to pay for parts to be purchased from a supplier. There was nothing to suggest that the applicant ever accounted for this sum. Further, there is no evidence that even if the applicant was entitled to charge for dismantling the engine, the charge would have exceeded $1,500.

59. Mr Glissan referred in his submissions to a document tendered at the sentencing hearing in the Local Court. The document purports to be a tax invoice dated 5 April 2010, but it is in the name of a company, is unsigned and there is no evidence that it was received by Mr White. The document does not advance the applicant’s case in the Court.

60. In my view, therefore, this contention cannot succeed.

Reasonableness of Belief

61. Mr Glissan submitted that the Magistrate had wrongly regarded the unreasonableness of the applicant’s claim of right as determinative of whether he had a bona fide belief in the claim of right. Mr Glissan further submitted that the District Court Judge’s agreement with the Magistrate on the question of a bona fide belief meant that his Honour committed the same error.

62. The short answer to this submission is that the Magistrate did not reason in the manner attributed to her. She said in her reasons that the claimed belief must have been genuinely held and that the belief:

“need not be reasonable but the reasonableness of the belief goes to its plausibility”.

63. The Magistrate’s statement is consistent with the authorities. In R v Lawrence,[33] for example, Callaway JA said that:[34]

“If a person has a belief inconsistent with dishonesty, he cannot be convicted of an offence of which that is an element even if his belief is unreasonable. The reasonableness of the belief goes to its plausibility … [A] bona fide claim of right may be both unreasonable and unfounded, although, if it is, it is less likely to be believed or, more correctly, to engender a reasonable doubt.”

33. [1997] 1 VR 459.

34. [1997] 1 VR 459 at 467 (Southwell and Smith AJJA agreeing).

64. There is no substance to this contention.

Orders

65. The applicant’s summons must be dismissed. The applicant must pay the DPP’s costs.

66. EMMETT AJA: By summons filed on 6 March 2015, Mr Tony Liristis seeks judicial review of a decision of the District Court of New South Wales made on 20 June 2014. By that decision, a judge of the District Court (the primary judge), on appeal from the Local Court of New South Wales, confirmed a conviction of Mr Liristis for an offence under s 125 of the Crimes Act 1900 (NSW) (the Crimes Act). Section 125 relevantly provides that a bailee of any property who fraudulently takes or converts to his or her own use, or the use of any person other than the owner thereof, is deemed to be guilty of larceny and liable to be indicted for that offence.

65. On 15 April 2013, the Local Court at Sutherland found Mr Liristis guilty of the offence of larceny as a bailee. Mr Liristis appealed to the District Court from that conviction and on 20 June 2014, the primary judge confirmed the conviction.

66. In the Court Attendance Notice addressed to Mr Liristis on 14 December 2011, which commenced the proceedings in the Local Court, the offence of larceny as bailee was relevantly particularised as follows:

Between 12 pm on 05.11.2009 and 10.am on 10.02.2010 at Penshurst [Mr Liristis] did, while being the bailee of certain property, to wit, one x blue Mercedes 350 sedan…the property of Peter White fraudulently (sic) the same property…

69. The primary judge found that, in November 2009, while Mr White was driving a 2004 Mercedes Benz motor vehicle near Brighton-Le-Sands, the vehicle stopped. Mr White subsequently spoke to Mr Liristis by telephone and Mr Liristis came and looked at the motor vehicle and determined that the engine had seized. He told Mr White that he was a mechanic, that the car could be taken for safe keeping to his place and that he would arrange to get it into a yard to get it fixed. A tow truck conveyed the motor vehicle to the residence of Mr Liristis at Penshurst.

70. The primary judge found that Mr Liristis did not repair the motor vehicle and has not returned it. His Honour also found that Mr Liristis moved the motor vehicle from his premises at Penshurst to undisclosed premises and has refused to tell Mr White or the police the location of the motor vehicle. His Honour found that it seems likely that Mr Liristis had removed the engine, since Mr Liristis claimed to have done so, saying that he spent some 11 hours on that task.

71. Mr White subsequently complained to the police and, in December 2011, Mr Liristis was arrested and charged with the offence of larceny as a bailee, as particularised above. At the hearing before the Local Court, the defence advanced by Mr Liristis was that he was a motor vehicle repairer and had a lien on the motor vehicle until the cost of the repairs was paid. He contended that he did not steal the motor vehicle but had a claim of right, namely, he believed he was entitled to a lien until he was paid in full for the repair charges.

72. The primary judge concluded that at no time did Mr Liristis have a lien on the motor vehicle because he had no licence as a motor vehicle repairer. Rather, his Honour held, Mr Liristis was holding the motor vehicle for the purpose of getting it repaired by someone else and he himself carried out no repairs. His Honour did not expressly draw a distinction between the work of carrying out repairs and the work that Mr Liristis claimed to have carried out, by removing the engine.

73. The primary judge observed that s 125 of the Crimes Act extends the concept of larceny to deal with a situation where a person who obtains goods does so lawfully, and is thus a bailee, subsequently converts the goods to his own use. His Honour said that that conduct is deemed to be larceny.

74. It is significant, in summarising the effect of s 125, that the primary judge did not advert to the presence of the word “fraudulently” in s 125. His Honour and the parties also appear to have proceeded on the basis that, although the statement of the charge in the Court Attendance Notice was that Mr Liristis “fraudulently takes” the motor vehicle, the matter proceeded on the basis that the charge was that he fraudulently converted the motor vehicle to his own use.

75. The primary judge found that Mr Liristis, without any consent of Mr White, as the possessor of the motor vehicle, moved it from his own premises to some unknown location and then made it clear that he did not intend to return it. His Honour held that that was conduct denying the rights of Mr White and amounted to a conversion of the motor vehicle. His Honour found that Mr Liristis did not at any time have a genuine belief that he had a lien, since he knew that he had no licence, he knew the lien could arise only for repairs carried out by a licensed repairer and he knew that he had carried out no repairs. His Honour concluded that Mr Liristis had no genuine claim of right and characterised his claim as a “false one”. His Honour agreed with the local court magistrate “in her views about [Mr Liristis’] lack of a bona fide belief”.

76. Mr Liristis contends, by his summons, that the primary judge fell into jurisdictional error. His complaint appears to be that his Honour had regard to a necessary element of the offence, namely that the taking or conversion of the motor vehicle must be found to be “fraudulent”. A second complaint is that his Honour failed to have regard to a contention advanced on behalf of Mr Liristis that he claimed to be entitled, not only to a statutory lien as a repairer, but to a lien arising under the general law as a consequence of having performed work on the motor vehicle, being the removal of the engine.

77. The first defendant, the Director of Public Prosecutions (the Director), opposes the grant of relief claimed by Mr Liristis. The second defendant, the District Court of New South Wales, has filed a submitting appearance. The Director contends that the primary judge did not disregard the requirement of section 125 that the taking or conversion be fraudulent and did not fail to have regard to the defence that Mr Liristis had a claim of right based on a lien for work done.

78. The Director contends that, while the primary judge may not have explicitly used the term “fraudulently”, it is apparent from the reasons that his Honour found that the behaviour of Mr Liristis in relation to the motor vehicle was fraudulent. The Director says that it is implicit in his Honour’s reasoning including the rejection of the contention that he had a bona fide belief that he had a lien, that the taking or conversation was fraudulent. In addition, the Director says, the primary judge clearly rejected the suggestion of a genuine claim of right on the part of Mr Liristis, finding that he did not have a genuine belief that he had a lien and that that claim was false.

79. I have had the opportunity of reading in draft form the proposed reasons of Sackville AJA. I agree with his Honour that the primary judge did not fall into jurisdictional error and did not misapprehend or disregard the limits of his functions or powers. I agree with the orders proposed by Sackville AJA for the reasons proposed by his Honour.

80. ADAMSON J: I agree with Sackville AJA.

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Endnotes

Decision last updated: 07 April 2016