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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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 said that he asked the respondent whether he had stolen any money that day and he replied "No". Sergeant Hickey deposed that he then said, "I intend to search this office and your pockets for marked money. Would you put all your property on the table please". The respondent put on the counter a total of $35.13 which included thirty four $1 coins, twenty five of which had a mark on the side of the type described by Mr Price. Sergeant Hickey said, "The twenty five have a marking on the side of them". The respondent asked to see them and said, "Yes I see". Sergeant Hickey said, "Can you explain how they came to be in your pocket". The respondent said, "They obviously came out of the money bag". Sergeant Hickey warned the respondent and said, "Have you stolen twenty five $1 coins", to which the respondent replied, "Yes."

1. The respondent was taken to the police station where he declined to enter into an interview, and no record of such interview was made. He was returned to the premises of Dax Citywide Catering Services Pty. Ltd. by the police and at about 4.pm, he came into the office and said to Mr Price, "Who dobbed me in", or, "Who called the police". He then asked Mr Price where the money was that he, Dax, had left there by way of replacement for the coins. Price said he had not seen any money. Dax called on a Mr Wade to be a witness of the events about to happen. When Wade arrived, Dax repeated his question to Price as to the whereabouts of the replacement money. He then pulled out a portable bench in the office used for resting Taking Sheets on. $26.00 in notes fell to the floor. It is not clear what happened thereafter.

1. The learned magistrate held that there was no case to answer because, although there was a taking of the coins by Dax, there was no evidence of lack of consent of the owner to that taking, there being no evidence as to the ownership of the coins. He claimed to be following the comments of Neasey J in Harris v Pandava 24/1975, a case which seems to be as often quoted as it is misunderstood. The passage which he had in mind was no doubt this:

"In the present case, therefore, the question before the learned Magistrate was whether on the evidence as it stood at the close of the prosecution case it would have been possible for him to be satisfied beyond reasonable doubt of the guilt of the respondent on the charge laid, if no further evidence were called. In order to consider that question properly, a court should in my opinion, when it is a tribunal both of law and fact as the Magistrate was, assume the acceptability of the evidence led by the prosecution relevant to the charge, and then decide whether upon that assumption it would be possible for it to reach a conclusion beyond reasonable doubt that the accused is guilty".

1. When a charge of stealing is laid the definition of "owner" in s226 of the Criminal Code applies. That definition reads:

"The term 'owner' includes any part owner or person having possession or control of or a special property in anything capable of being stolen."

1. There is no doubt in my mind that it would be open to a reasonable tribunal of fact to infer that Dax Citywide Catering Services Pty Ltd had a special property in the coins which the filler operators brought in. In fact no other conclusion seems reasonably to be open. It was not suggested in cross examination that the respondent had any right to take the coins and retain them in his personal possession, and the respondent's admission that he had stolen the coins was clear evidence from which the tribunal of fact could infer the fact of larceny. A tribunal of fact could resonably reject as a charade, or give little weight to, the scene which involved the "finding" of $26 in notes.

1. The cases cited by counsel for the respondent, Trainer v The King (1906) 4 Pt 1 (CLR) 126 and R v Feeley [1973] 1 All ER 341 are beside the point. In my opinion, there clearly was a case to answer and the magistrate's decision was wrong. The Motion must be granted and the order dismissing the complaint quashed. The matter will be remitted to the Court of Petty Sessions for trial according to law.