Maingay v Charles

[2009] TASSC 98

[2009] TASSC 98

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Maingay v Charles [2009] TASSC 98

PARTIES:  MAINGAY, Anthea Jane (Sergeant)

CHARLES, Jade Anthony

FILE NO/S:  487/2009
DELIVERED ON:  29 October 2009
DELIVERED AT:  Hobart
HEARING DATE:  7 October 2009
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally - Convictions based on findings of fact – Need to show findings not reasonably open on the evidence.

Kent v Gunns Limited [2009] TASSC 30, referred to.
Aust Dig Magistrates.  [272]

Criminal Law – Particular offences – Property offences – Larceny by stealing – Particular modes – Larceny by finding -  Belief of finder as to discovery of owner of found property.

Neave v Trenerry [1999] NTSC 3; Dolby v Stanta [1996] 1 Qd R 138; Alexander Gordon MacDonald [1983] 8 A Crim R 248, referred to.
Aust Dig Criminal Law  [2311]

REPRESENTATION:

Counsel:
             Applicant:  A Shand
             Respondent:  C Hansen
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  G A Richardson

Judgment Number:  [2009] TASSC 98
Number of paragraphs:  28

Serial No 98/2009
File No 487/2009

SERGEANT ANTHEA JANE MAINGAY v JADE ANTHONY CHARLES

REASONS FOR JUDGMENT  TENNENT J

29 October 2009

1. On 29 May 2009, a magistrate, following a hearing, dismissed one count of stealing on complaint number 51894/08 laid against the respondent, Jade Anthony Charles.  The applicant now seeks a review of the decision of the learned magistrate.

1. The charge appearing on the complaint was in the following terms:

"You are charged with on the 11th March, 2008, at East Devonport in Tasmania, stealing a purple Holden Commodore, Reg No ES9020 to an approximate value of $5,000.00 the property of Jarrod Leigh WEBB."

1. The prosecution case at hearing was a "stealing by finding" case and reliance was placed on the definition of "takes" as it appears in the Criminal Code Act 1924, s226. That section provides:

"(1)   A person who, without the consent of the owner thereof, dishonestly —

(a)     takes; or

(b)     …

anything capable of being stolen, with intent permanently to deprive the owner thereof, steals such a thing.

(2)    In this chapter —

(a)     the term "takes" includes obtaining possession —

(i)…

…

(iv)by finding, if at the time of the finding the taker believes that the owner can be discovered by reasonable means;".

1. Only one ground of review was pursued at the hearing and it was as follows:

"2That the learned Magistrate erred in fact and/or law in finding that the respondent believed he could not locate the owner of the vehicle referred to in complaint 51894/08 by reasonable means."

Factual background

1. On 8 March 2008, Jarrod Webb left his purple Holden Commodore station wagon, bearing registration number ES9020, outside his brother's house at James Street, East Devonport.  The vehicle was locked.  It was stolen sometime between 10pm and midnight that night.  At about 9.30am on 13 March 2008, police conducted a search of the premises where the respondent lived at 5 North Caroline Street, East Devonport.  They found a number of parts of the Commodore and other items which had been in it, in a shed.  These included panels, four doors, the roof, an engine, the car's registration plates, a certificate of vehicle registration relating to the vehicle in the name of J L Webb, a temporary driver licence in the name of Jarrod Leigh Webb and other miscellaneous parts.  The car had been cut into a number of pieces.

1. The respondent was interviewed in relation to the theft of the vehicle.  He denied stealing it and told police he found it on Morelands Beach on 11 March 2008.  He believed it had been abandoned and so took it home to scrap.  He admitted cutting it up.

Approach to the review

1. There was no evidence the respondent actually stole the vehicle from outside Mr Webb's brother's home.  It was the prosecution case that the respondent found the car and that, having regard to the state of the car when it was found and the material found in it, which clearly identified the owner of the car, the only belief that the respondent could have had, once he found the car, was that the owner could be discovered by reasonable means.  If he held that belief, he could be found guilty of stealing the car.

1. At the hearing before the learned magistrate, the onus was on the prosecution to prove beyond reasonable doubt that, at the time the respondent took the motor vehicle from the beach, he believed that the owner of the vehicle could be discovered by reasonable means.  The learned magistrate found that he did not have that belief and accordingly found the charge not proved.  As Porter J said in Kent v Gunns Limited [2009] TASSC 30 at pars6 - 7, echoing comments by Crawford J (as he then was) in Justin Nicholas Smart v Phillip Christopher Gray B58/1996:

"6… The grounds of the motion relates to questions of fact.  As such, the decision is to be treated in the same way as an appeal from the verdict of a jury.  This is not an appeal by way of re hearing and it is not for this Court to weigh the evidence and reach its own conclusions; Richardson v Shipp [1970] Tas S R 105 at 117, Australian Securities and Investments Commission v Hosken (No 2) [ 2000] TASSC 12 at [7], Phillips v Arnold [2008] TASSC 6 at [13], Murray v Maingay [2008] TASSC 18 at [13].

7On this motion I am concerned with the question of whether the magistrate's decision was reasonably open on the evidence; that is, whether on the evidence the only conclusion reasonably open, judged by the criminal standard of proof, was that the respondent was in breach of the Act as alleged.  To use the words of Green CJ in Leonard v Newell [1983] Tas R 78 at 81, I should 'allow of the motion only if I am satisfied that on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent'."

1. Applying that approach to the present case, I should only uphold the notice to review if I am satisfied that, on no reasonable view of the evidence, could the learned magistrate have failed to find that the respondent had the requisite belief.

1. There was no dispute that the vehicle was something capable of being stolen.  In submissions at the close of the evidence, counsel for the respondent argued that the prosecutor had to prove that the respondent "dishonestly" took the vehicle and that, at the time, he did not have a belief that the owner could be discovered by reasonable means.  Counsel argued that the taking had not been shown to be dishonest because the vehicle had been abandoned on public land.

The evidence before the learned magistrate

1. The evidence disclosed that the purple Commodore bearing registered number ES9020, the property of Jarrod Leigh Webb, had been stolen late on the night of 8 March 2008.  At about lunchtime on 11 March 2008, the vehicle was found by the respondent on Morelands Beach.  He towed it to his home and cut it up.  On 13 March, police searched the respondent's property.  In a shed they found the doors, the roof, the front grill, the engine and other parts of the car.  They also found the front and rear registration plates, a certificate of registration for the vehicle showing the name and address of the registered owner, a temporary driver licence for the person shown as the registered owner with the same address, and other papers.

1. When police found the parts of the car at the respondent's home, they took photographs of them.  Those photographs show at least two of the vehicle's doors quite clearly and both appear to be in good condition, that is, undented and unscratched.  They also show part of the roof of the vehicle.  While clearly the roof has been cut, that part as displayed appears to be undented.  There is a grill which also appears in good condition.  There is also an engine.

1. The certificate of vehicle registration found was for the period ended 13 August 2006 showing the registered owner of the vehicle to be a Mr J L Webb with an address at 29 Parsons Dr, Acacia Hills, Tasmania.  The registration number on that certificate matched the registration plates found.  The temporary driver licence found had been issued to Jarrod Leigh Webb of 29 Parsons Dr, Acacia Hills, Tasmania on 14 August 2007.  Such a document is issued to an applicant for a driver licence to cover the period until their photographic licence is processed.

1. The respondent did not give evidence at the hearing.  In the course of his police interview, the respondent agreed that the police had found four doors, a couple of panels, a roof and an engine from the Commodore at his home.  He said that he found the purple Commodore at Morelands Beach.  He said it had no gearbox, the windscreen had been kicked in, it had been trashed, it had no wheels and it was sitting on its axles.  He said he found it about lunchtime on Tuesday 11 March, which was less than three days after the vehicle had actually been stolen.

1. The respondent acknowledged the presence of one registration plate when he found the car, and when he was asked if the owner's details were anywhere in the vehicle, he replied, "it had heaps of paperwork and shit everywhere through it." He towed the vehicle to his house, cut it up with a saw and sold the chassis.  He sold the chassis at about 4pm on the afternoon of the day he described finding the vehicle, having looked up an advertisement in the paper which had something about scrapping cars.  The respondent was asked if he thought the vehicle might have been stolen.  He said that it had not even crossed his mind.  He said the car just looked like it had been written off by the owner who had taken what they wanted and just left the vehicle. 

1. The respondent was also asked about the paperwork he had found with the car.  He was asked if he had a look at the papers and he said, "no".  However when he was asked what sort of papers there were, he said:

"Um, well I know his name was on it but I didn't pay much attention.  Just rego, sticker, … a heap of personal papers but I wasn't that interested.  Can't read well so even if I did want to read 'em I couldn't, probably couldn't read."

From this it is evident that, despite saying he could not read well, the respondent was able to read the name appearing on the registration papers and identify what the papers were.  When questioned about why he did not make enquiries about the owner of the vehicle, the respondent's first response was "I dunno".  He then went on to say that it did not look like the owner wanted the car, and that he just did not think about the possibility of its being stolen.  He said he had found another car a couple of weeks before and towed that to his home as well.

1. The respondent also told police that to his knowledge when a car had been stolen, it was burnt out.  Because this one was not, then it probably was not stolen.

The law

1. The cases referred to by counsel at the hearing, and upon this review, in relation to "stealing by finding" were Neave v Trenerry [1999] NTSC 3 and Dolby v Stanta [1996] 1 Qd R 138. A further case, Alexander Gordon MacDonald (1983) 8 A Crim R 248, was referred to in Trenerry and mentioned by the learned magistrate in her reasons.  The legislation under consideration in Trenerry was different from that in Tasmania.  What the court was there considering was a provision in the following terms:

"'steals' means unlawfully appropriates property of another with the intention of depriving that person of it ... but does not include the appropriation of property by a person with the reasonable belief that such property has been lost and the owner thereof cannot be discovered." (emphasis added)

The provision refers to a reasonable belief.  That qualification does not appear in the Tasmanian legislation.  The concept of reasonableness of the requisite belief also appears in the Queensland legislation dealt with in Dolby.  In MacDonald, a decision of the New South Wales Court of Criminal Appeal, the court dealt simply with the belief of the finder, as opposed to whether a belief was a reasonable one.

1. In MacDonald, cited at some length in Trenerry, a man found a quite valuable camera hanging on a fence in a laneway. The Court said at 251:

"The guilty mind or animus furandi requisite in larceny by finding is thus the belief of the finder that the owner can be found, and unless that belief is established beyond reasonable doubt, a conviction for larceny is not open. The Crown of course carries the onus or proving that belief beyond reasonable doubt, and there is no onus on the accused in any circumstances to prove that he did not have such a belief or that he believed the goods had been abandoned, or that the owner could not be found (May v O'Sullivan (1955) 92 CLR 654). How then is the requisite belief in the finder to be established when the finder has volunteered no information pointing. to the state of his mind at the relevant time, as is the case here? In Russell on Crime (12th edition) the learned author, at p 1014, states:

'In cases of taking on finding some of the strongest circumstances to rebut the implication that such taking was felonious ... are those which show that [the taker] endeavoured to discover the true owner and kept the goods till it might reasonably be supposed that .the true owner could not be found.'

The finder's belief, in our view, is to be inferred from the facts and circumstances surrounding the finding and the taking of the goods, and in this respect regard may be had not only to what the finder does in relation to the goods but also what he does not do that might reasonably be regarded as consistent with the actions of an honest .man finding goods. Did the finder examine it closely to see if it gave any clue to its owner by name tag or otherwise? What avenues were reasonably open to the finder to locate the owner? A person finding goods may be taken to know that the person who has lost those goods may well retrace his steps with a view to recovering them, and so the leaving of the finder's name and address with someone at the place of discovery may be one means of locating the owner. It is common knowledge in our community, and the finder would know, that the police will receive lost property handed in and take care of it and accordingly the finder would think that the loser might make an enquiry of the police in the area where he believes he may have lost his property. It is common knowledge that newspapers publish 'lost and found' columns. These and perhaps other considerations would ordinarily be present to the mind of an honest person finding property in a suburb of Sydney. Each case must be looked at according to its own facts, and the place where the property is found and the nature of the property will, in most instances, readily indicate the avenues that are reasonably open to find the owner."

The court concluded in that case that the camera could "in all probability, readily be identified by its owner and was of such a value that it was not likely that it would have been abandoned by its owner."

1. The court in Trenerry also dealt with the question of abandonment of goods.  Bailey J said at par10:

"In the present context, 'abandoned' does not simply mean 'lost' or 'left'. It means that the owner has intentionally relinquished all rights of ownership in the property (see Hibbert v McKiernan [1948] 2 KB 142). The abandonment of goods will not lightly be inferred: see Donoghue v Coombe (1987) 45 SASR 330 at 333 and Dolby v Stanta [1996] 1 Qd R 138."

1. In Dolby, a pawnbroker came into possession of a torch which had engraved upon it the words "T/ville Traffic Branch". Williams J said at 144:

"But those cases also support the proposition that where there is some mark or other feature on or about the thing which indicates ownership and that is ignored by the finder who does nothing to contact a reasonably obvious possible owner, the court may infer that the initial taking was with a fraudulent intent. Here the evidence is that the appellant did nothing in an attempt to contact the possible owner evidenced by the engraving on the torch."

Conclusions

1. There is no doubt that it was for the prosecution to satisfy the learned magistrate beyond reasonable doubt that the respondent in this case did hold, at the time he found the Commodore, a belief that the owner of the Commodore could be discovered by reasonable means.  The learned magistrate found, having regard primarily to the contents of the interview between the police and the respondent, that the respondent did not hold that belief.  It is the State's contention on this review that, on no reasonable view of the evidence, could that finding have been made.

1. The respondent's stated belief was in effect that he did not believe he could discover the owner by any reasonable means. While there is no stated requirement in s226 that the belief itself be a reasonable one, it would make a nonsense of the legislation were an alleged offender to simply be able to state that he did not hold the requisite belief, notwithstanding that that stated belief might be entirely inconsistent with the surrounding circumstances, and for that statement to be determinative. Of course, the belief referred to in s226 is one that an owner can be discovered by "reasonable means".

1. For this motion to be allowed, I must be satisfied that, on no reasonable view of the evidence before her, could the learned magistrate have made the finding she did.  The evidence before the learned magistrate disclosed:

-          the respondent found a partially stripped purple Commodore stationwagon on a beach,

-          it was not burnt out as he said stolen cars usually were,

-          he thought the car had been abandoned,

-          he had found an Astra at the same beach a couple of weeks before,

-          he found the Commodore less than 72 hours after it had actually been stolen,

-in his interview the respondent said the car had been trashed.  He said it had no gear box, tail shaft or wheels, the left hand guard had been pushed in a bit, the bumper was smashed off and the seats were still there but not bolted in.  The windscreen was gone.  A couple of windows had been smashed, and he said the tailgate (I infer window of it) might have been kicked in.  There was a hole in the console where a CD had been.  The respondent said it looked like someone had jumped on the roof but otherwise the condition of the car was pretty good.  He said he thought some of the lights were still okay and that the windows in the doors were in one piece.  (see interview)

-the police photographs showed the door panels and grill to be in good condition, as was that part of the roof which could be seen,

-the respondent suggested the vehicle had been in a crash although made no response when the good state of the panels, roof and doors was pointed out to him,

-the respondent had taken the vehicle home, removed the engine and cut the rest of the car up.  He then sold the chassis for $50 within a few hours of taking the vehicle home,

-the respondent had scrapped cars before and knew the remains of the car he still had were potentially worth several hundred dollars,

-found at the respondent's premises were two registration plates, a certificate of registration relating to those plates which related to a Holden motor vehicle with the owner's name and address on it and a temporary driver licence with the same name and address,

-the respondent said he could not recall where he had found one of the registration plates.  He guessed it was off the bumper but then said he could not remember if the bumper one was still screwed on,

-the registration plates in fact belonged to a purple Commodore owned by the person named in the documents,

-the respondent was able to tell police that he saw a name on the registration papers which were in the car, the implication being clearly that he read them sufficiently to identify what they were and the name on them,

-the respondent told police he got the name of the person he sold the chassis to from an advertisement in the newspaper, the implication being his reading skills were such that he could do that,

-contrary to the preceding two points, the respondent told police he could not read well and probably could not have read what was in the papers he found in the car.

1. In summary, what the respondent found was a partially stripped car.  It was in one piece and consisted of its chassis, engine, front grill, bumper, roof, bodywork and seats.  That is, the bulk of the vehicle was still there.  The respondent was able to tow it home.  The paperwork in it and the evidence of its owner show the vehicle was silver when purchased in May 2006 and that the owner had had it resprayed with purple two pack shiny paint at some time after that, which made the car distinctive.  The photographs show that paintwork was still in good condition.  The state of the bulk of the panels was not consistent with the car having been in a crash. On his own admission, the respondent simply did not concern himself with the question of whether or not the car might have been stolen or establishing who the owner was because he said he thought the car had been abandoned.

1. The decision of the learned magistrate appears to have been based entirely upon an acceptance, without qualification, of what the respondent told police as to his beliefs.  There appears to have been no attempt by the learned magistrate to balance the content of the interview against the inconsistencies within it, other objective evidence and the reality of the circumstances which faced the respondent.  It is quite obvious that, had the respondent chosen to do so, he could have contacted the vehicle's owner.  He chose not to do so.  His assertion that he thought the vehicle had been abandoned is wholly inconsistent with the state of the car, its value even as parts, and the presence of registration plates and documents which clearly identified the owner. 

1. I am of the view in the circumstances that, on no reasonable view of the evidence before her could the learned magistrate have made the finding that she did.

1. The review in the circumstances should succeed.  I will hear counsel as to the disposition of the matter.