Marshall v Szommer
[1990] TASSC 63
•9 October 1990
Serial No 61/1990
List "A"
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Marshall v Szommer [1990] TASSC 63; (1990) Tas R 210; A61/1990
PARTIES: MARSHALL, Robert James
v
SZOMMER, Josef Franz
FILE NO/S: FCA 128/1989
JUDGMENT
APPEALED FROM Marshall v Szommer 57/1989
DELIVERED ON: 9 October 1990
JUDGMENT OF: Green CJ, Cox and Wright JJ
Judgment Number: A61/1990
Number of paragraphs: 21
Serial No 61/1990
List "A"
File No FCA 128/1989
ROBERT JAMES MARSHALL v JOSEF FRANZ SZOMMER
REASONS FOR JUDGMENT FULL COURT
GREEN CJ
COX J
WRIGHT J
9 October 1990
Order of the Court
Appeal dismissed.
Serial No 61/1990
List "A"
File No FCA 128/1989
ROBERT JAMES MARSHALL v JOSEF FRANZ SZOMMER
REASONS FOR JUDGMENT FULL COURT
GREEN CJ
9 October 1990
The respondent was charged with stealing $1,886.70 the property of the Tasmania Bank and elected to be tried by a magistrate. In fact the respondent only received $1,880.00 and I shall proceed as if he had been charged with stealing that amount.
The only facts which were before the magistrate were those which appeared in what was characterised by counsel as a statement of "agreed facts", together with a copy of a record of an interview which had been had with the respondent. As a criminal trial may only be determined upon the basis of materials lawfully admitted or to which the court may lawfully have regard an agreed statement of facts cannot per se provide a sufficient foundation for a conviction. However I think that the statement and the tender of the record of the interview which accompanied it may properly be regarded respectively as an admission by the accused pursuant to s109 of the Evidence Act 1910 and the tender of an exhibit by consent pursuant to s113A of that Act.
The learned magistrate held that there was no case to answer and dismissed the complaint. This is an appeal against the dismissal of a motion to review that order. The learned judge who heard the motion to review summarised the facts which were before the magistrate as follows:
"The respondent was employed by a company, which paid his wage by arranging for his account at the Tasmania Bank to be credited with the appropriate sum. The bank would receive from the employer a salary advice note. At 3 pm on 30 November 1988 the bank's clerk was attending to the processing of several salary advice notes through a computer to customers' accounts. The clerk should have caused to be credited to the respondent's account $209.69, but by her error with the computer she caused $2096.39 to be credited instead, which was $1886.70 too much.
Later that day the respondent went to the bank's East Devonport branch. For some time up until the commencement of the day his account had been in credit for only 14 cents. He withdrew from the account the approximate amount of his salary. He made an enquiry concerning the balance in the account and as a result learned of the wrongly credited sum of $1886.70. Several minutes later he went to the bank's Rooke Street branch and withdrew $1880 in cash. The agreed facts were silent as to how that transaction was carried out, except that he admitted to the police that a copy of a withdrawal form shown to him (but not tendered in evidence) was a copy of the form he made out to withdraw the $1880. After he withdrew it the bank discovered its error.
It is clear from the evidence that the respondent withdrew the sum of $1880 knowing full well that he was not entitled to it. Having admitted to the police that he had found out that his account held about $1880 more than it should have done, he was asked where did he think the money came from and he answered that 'I thought the bank had stuffed up'. He said that he was aware, when he withdrew the money, that it was not his. He thought that it was the bank's money. He spent it paying urgent bills. He said that when he withdrew the money 'it was the wrong thing to do'.
The learned magistrate dismissed the charge because he considered that there was no evidence that the respondent obtained the money without the consent of the bank as the owner. In fact he concluded that the money was paid to the respondent with the consent of the bank because of the consent of its teller."
The material parts of s226 of the Criminal Code are as follows:
"226–(1) A person who, without the consent of the owner thereof, dishonestly–
(a) takes;
…
anything capable of being stolen, with intent permanently to deprive the owner thereof, steals such thing.
(2) In this chapter–
(a) the term 'takes' includes obtaining possession–
(i)by any trick,;
(ii)by intimidation;
(iii)through a mistake on the part of the owner, if the taker knows of such mistake; or
(iv)by finding, if at the time of the finding the taker believes that the owner can be discovered by reasonable means;"
In order to convict the respondent the complainant would have had to prove that the respondent dishonestly took the sum of $1880 from the bank without the consent of the bank with the intention of permanently depriving the bank of that sum.
One of the elements of the crime which the complainant had to prove was that irrespective of the manner in which the respondent took the money the taking was without the consent of the bank. In Ilich v R (1987) 162 CLR 110 the High Court considered some aspects of that element of the crime of stealing. Although that case was concerned with the definition of stealing contained in the Criminal Code (WA) which does not specify lack of consent as one of the ingredients of the crime the court found it necessary to consider and review the authorities relating to what amounts to consent for the purpose of the common law relating to stealing which does require lack of consent as an ingredient and I therefore see no occasion for this court to undertake its own review of the authorities.
Ilich's case confirms that an apparent consent to the handing over of property may be vitiated if the handing over is done under a fundamental mistake. A mistake will be regarded as a fundamental mistake
"if it is as to the identity of the transferee or as to the identity of the thing delivered or as to the quantity of the thing delivered: see Glanville Williams, Textbook of Criminal Law (1978), p779; Williams and Weinberg, Property Offences, 2nd ed (1986), p44; Russell on Crime, vol 2, 12th ed (1964), p1553; JC Smith, [1972] Criminal Law Review, pp586–588. In those circumstances, and perhaps only in those circumstances, can it be said that the mistake is such that the transferor never really intended to deliver the thing transferred and so never gave consent to the transfer. Middleton may be regarded as a case of mistake as to the identity of the transferee: the clerk thought that the accused was the person referred to in the letter authorizing the payment. Less plausibly, Middleton may be regarded as a case of mistake as to the identity of the deposit: see [1972] Criminal Law Review, p587. Ashwell may be regarded as a case of mistake as to the identity of the thing delivered: both the lender and the accused thought it was a shilling whereas it was in fact a sovereign. The third category—mistake as to the quantity of the thing delivered—requires in our view some qualification where the thing is money but may be illustrated by Russell v Smith where eight sacks too many of pig meal were mistakenly delivered to the accused who appropriated them. He was convicted of theft.
Where there is a mistake which is not a fundamental character it will not vitiate consent so that possession and ownership will pass in accordance with the apparent intention of the owner. Thus is Reg v Prince (43), where the cashier of a bank handed over money, intending to do so although deceived by a forged order, there was held to be no larceny. And in Lacis v Cashmarts (44) where the accused took goods from a self–service store and paid the amount which the manager read from the cash register, which was less than the price, there was held to be no larceny. Upon this view the decision in Reg v Gilks (45), which was made in reliance upon Middleton, was wrong and it has been criticized accordingly: [1972] Criminal Law Review, p585 et seq: GF Orchard, 'The Borderland of Theft Revisited', [1973]) New Zealand Law Journal, p110."
Per Wilson J and Dawson J in Ilich v R. (supra) at pp126 and 127. See also the reasons for judgment of Brennan J at pp139 and 140.
In this case there was no fundamental mistake of the kind referred to in Ilich's case. The bank's agent intended to pass the property in the money to the respondent, he understood the nature of the transaction in which he was engaging, he was under no misapprehension as the identity of the respondent, he knew that the property he was transferring was money and he was aware of the amount of money which he was handing over.
Even assuming that the property the subject of the charge was taken by the respondent within the meaning of s226(2) of the Code, there was no evidence capable of sustaining a finding that the property was taken without the consent of the bank and there was thus no case to answer.
I reject the appellant's submission made in the alternative that the respondent had a case to answer on the alternative charges of obtaining goods by a false pretence or dishonestly acquiring a financial advantage. The facts admitted by the respondent were not sufficient to establish precisely what the respondent said or did or what effect whatever the respondent said or did had on the mind of the bank's agent and there was thus insufficient evidence to support findings that the ingredients of either of those crimes had been made out.
In my opinion the appeal should be dismissed.
File No FCA 128/1989
ROBERT JAMES MARSHALL v JOSEF FRANZ SZOMMER
REASONS FOR JUDGMENT FULL COURT
COX J
9 October 1990
I agree that this appeal should be dismissed for the reasons prepared by the Chief Justice and my brother Wright both of which I have had the advantage of perusing in draft form.
File No FCA 128/1989
ROBERT JAMES MARSHALL v JOSEF FRANZ SZOMMER
REASONS FOR JUDGMENT FULL COURT
WRIGHT j
9 October 1990
By complaint dated 16 January 1989, the appellant alleged that the respondent on 30 November 1988, stole $1,886.70, the property of the Tasmania Bank contrary to s234 of the Criminal Code. The learned magistrate who dealt with the matter in the Court of Petty Sessions, was asked to give his decision on the basis of a statement of agreed facts placed before him, together with a recorded interview between the respondent and investigating police officers which occurred on 15 December 1988. The statement of agreed facts was placed before the learned magistrate as an admission by the respondent pursuant to the provisions of s109 of the Evidence Act 1910, and the recorded interview appears to have been placed before him pursuant to the enabling provisions of s113A of the Evidence Act.
After considering this material and hearing argument by the appellant and counsel for the respondent, the learned magistrate ruled that there was no case for the respondent to answer and dismissed the complaint against him. The learned magistrate also considered, but rejected, the possibility of alternative convictions under the Code including no doubt, obtaining goods by a false pretence and dishonestly obtaining a financial advantage.
By notice to review dated 20 June 1989, the Director of Public Prosecutions appealed against the learned magistrate's order. My learned brother, Crawford J, after considering the matter at some length, dismissed the motion on 23 October 1989. His Honour published reasons for judgment, Serial No. 571989, List "A". In those reasons his Honour analysed the facts and permissible inferences with some care. He also discussed the relevant law upon the matter in detail.
The cases and legislation referred to by his Honour were further analysed by learned counsel during the course of the argument before this Court. However, no additional material was referred to and it was not suggested that his Honour had failed to consider any relevant decision or statutory provision nor was it suggested that he had misapprehended any relevant fact.
As I agree with his Honour's view of the facts, and the conclusions of law which he reached, I see no good purpose in my undertaking a further exercise of the same kind, interesting though the issues may be. I therefore content myself in making the following brief observations.
In my opinion, the bank did not make a fundamental mistake so as to vitiate its apparent consent when the monies were paid to the respondent. The teller who made the payment was aware of the identity of the respondent and intended to pay to him the actual amount of money that changed hands. Upon the evidence presented it cannot be inferred that he did this as a direct result of any misrepresentation of fact by the respondent, rather than as a consequence of some other cause such as reliance upon the bank's own records. These records erroneously indicated that the respondent was entitled to withdraw a greater that the respondent was entitled to withdraw a greater amount from the bank than he had in fact deposited. However this mistake in the records had occurred at an earlier time. It had not been induced by misrepresentation or fraud by the respondent, and his actions in withdrawing $1,880.00 from the Rooke Street branch of the bank a short time later, though reprehensible, were not criminal as the law in this State now stands.
It may be noted that under s226 of the Tasmanian Criminal Code, the absence of consent by the owner and the taking of the subject property, are two separate ingredients of the crime of stealing. In this respect the Tasmanian Code differs from its Western Australian counterpart (see Ilich v The Queen (1986–87) 162 CLR 110, per Wilson and Dawson JJ at p123). "Consent" for the purposes of the Tasmanian Code is generally, but not exhaustively, defined in s2A. The meaning of "takes" is partly defined by s226(2)(a)(iii). "Takes" includes "obtaining possession through a mistake on the part of the owner if the taker knows of such mistake". However this does not dispense with the necessity for the prosecutor to prove an absence of consent on the part of the owner. It is possible for an owner to consent to another person obtaining possession of a chattel even though that consent has been motivated or induced by a mistake of which the other person is aware. To vitiate the owner's consent the mistake must be fundamental to the transaction in question. In this case it was not. I am quite unable to see how the owner's simple error can be transmuted into a fundamental mistake solely by the existence of a dishonest purpose on the part of the taker.
As observed by Bray CJ:
"It is desirable that dishonesty should be suppressed. Nevertheless if the law of larceny is to be rationalized, I think it is for the legislature to do it". (The Queen v Potisk (1973) 6 SASR 389 at p403).
In my opinion, the appeal should be dismissed.
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