Lowe v Cunningham Dax - [1987] TASSC 122

Serial No B52/1987
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: Lowe v Cunningham Dax [1987] TASSC 122; B52/1987

PARTIES:  LOWE, Robert James
  v
  CUNNINGHAM DAX, Richard Charles

FILE NO/S:  LCA 98/1987
DELIVERED ON:  8 December 1987
JUDGMENT OF:  Cosgrove J

Judgment Number: B52/1987
Number of paragraphs: 10

Serial No B52/1987
List "B"
File No LCA 98/1987

ROBERT JAMES LOWE v RICHARD CHARLES CUNNINGHAM DAX

REASONS FOR JUDGMENT COSGROVE J

8 December 1987

This is a Motion by a prosecutor seeking Review of an order made by a magistrate, consequent upon a ruling that the respondent had no case to answer, for the dismissal of a complaint which alleged that the respondent stole $25.00, the property of Dax Citywide Catering Services Pty. Ltd.

The principal witness for the prosecution was a Mr Price, who deposed to the fact that he was the manager of Dax Citywide Catering Services Pty. Ltd., having been appointed to that position late in February 1987. Mr Price also said that he worked for Diverse Products who trade in Tasmania as Coca Cola Bottlers Tasmania. Those two statements are not in my opinion, contradictory. It is not unusual for companies to offer services to other firms or companies, or for a company to operate a franchise for another firm or company. Mr Price explained that the company for which he worked operated 250 vending machines in this State. Many of the products sold in the vending machines were Coca Cola products. He explained the way in which the vending machines operated, and the process whereby fillers visited the machines, collected the money in the coin boxes and replaced the food or drink in the machines.

He explained that the filler operators put the cash from each machine in separate calico bags and returned the bags to the office. Each bag contained a slip showing from which machine the money was taken. At the office the money was counted, either manually or by use of a coin counting machine.

He said that on Friday 15 May 1987 a filler operator named James Scarafiotti brought a number of bags to his office. He counted the money in one of them and it amounted to $90.60, which sum was partly made up of forty $1 coins. He marked each of the $1 coins and left the money on a table next to the coin counting machine. He said that he then left the office. A little later he saw the respondent enter the office, and put the money which was adjacent to the coin counting machine through that machine. He saw the digital read out on the coin counting machine and it came to $65.60. He said no one else entered the office and that $65.60 was recorded on a takings sheet by Mr Dax.

Without speaking to the respondent, Price called the police and shortly thereafter, Sergeant Hickey and Detective Guy came to the office and spoke to Mr Dax but not in Mr Price's presence. Sergeant Hickey…

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 Lowe v Cunningham Dax

Details

AGLC: Lowe v Cunningham Dax [1987] TASSC 122
Case: [1987] TASSC 122
Decision Date: 8 December 1987

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Lowe v Cunningham Dax was heard, where Robert James Lowe brought a motion seeking a review of a magistrate's order. The order in question had dismissed a complaint alleging that Richard Charles Cunningham Dax had stolen $25 from Dax Citywide Catering Services Pty. Ltd. The principal witness for the prosecution, Mr. Price, testified that he was the manager of the company and had observed Dax using a coin counting machine to process money that was not accounted for. Dax admitted to police that he had stolen the coins, and there was no evidence suggesting he had a right to do so. The magistrate had ruled that there was no case to answer due to a lack of evidence regarding the ownership of the coins, but Cosgrove J disagreed.

The legal issue at hand was whether the magistrate's decision to dismiss the complaint was correct. Cosgrove J examined the definition of "owner" under the Criminal Code and found that Dax Citywide Catering Services Pty. Ltd. likely had a special property in the coins, making Dax's actions a larceny. The court rejected the magistrate's reliance on a previous case, Harris v Pandava, as misapplied. Cosgrove J concluded that the magistrate's decision was incorrect and that there was indeed a case to answer. The motion was granted, the order dismissing the complaint was quashed, and the matter was remitted to the Court of Petty Sessions for a trial according to law.

The Supreme Court's decision highlighted the importance of correctly applying legal definitions and precedents in criminal cases. Cosgrove J's analysis underscored the need for a tribunal of fact to consider all evidence and make informed decisions. The court's ruling ensured that the case would proceed to trial, allowing for a full examination of the facts and the application of the law.

Orders