Marshall v Szommer - [1990] TASSC 63

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…

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 Marshall v Szommer

Details

AGLC: Marshall v Szommer [1990] TASSC 63
Case: [1990] TASSC 63
Decision Date: 9 October 1990

CaseChat Overview and Summary

The Supreme Court of Tasmania dealt with an appeal by the Crown against the dismissal of a complaint by Josef Franz Szommer, who was charged with stealing $1,886.70 from the Tasmania Bank. The case was initially heard by a magistrate, who dismissed the complaint based on an agreed statement of facts and a record of an interview with Szommer. The Crown appealed this decision, arguing that the magistrate erred in law. The Full Court of the Supreme Court, comprising Green CJ, Cox J, and Wright J, reviewed the case and ultimately dismissed the appeal.

The legal issues before the court were whether the magistrate erred in finding that there was no case to answer and whether Szommer's actions amounted to stealing under the Criminal Code. The court had to determine whether the bank's error in crediting Szommer's account with an excessive amount constituted a fundamental mistake that would vitiate consent, and whether Szommer's withdrawal of the funds was without the bank's consent.

The court found that the bank's teller intended to transfer the correct amount of money to Szommer and was not under a fundamental mistake as to the identity or nature of the transaction. The error in crediting the account occurred earlier and was not induced by Szommer. Therefore, the bank's consent to the transfer of funds was valid, and Szommer's withdrawal of the funds did not constitute theft under the Criminal Code. The court also noted that there was insufficient evidence to support alternative charges of obtaining goods by false pretence or acquiring a financial advantage dishonestly.

In conclusion, the Supreme Court of Tasmania dismissed the appeal and upheld the magistrate's decision to dismiss the complaint against Szommer. The Full Court found that the bank's error did not amount to a fundamental mistake that would vitiate consent, and Szommer's actions did not meet the criteria for theft under the Criminal Code.

Orders