Marshall v Szommer
[1989] TASSC 58
•23 October 1989
Serial No 57/1989
List "A"
CITATION: Marshall v Szommer [1989] TASSC 58; A57/1989
PARTIES: MARSHALL
v
SZOMMER
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 8/1989
DELIVERED ON: 23 October 1989
JUDGMENT OF: Crawford J
Judgment Number: A57/1989
Number of paragraphs: 36
Serial No 57/1989
List "A"
File No LCA 8/1989
MARSHALL v SZOMMER
REASONS FOR JUDGMENT CRAWFORD J
23 October 1989
The question which arises in this case is the extent to which the owner's consent will preclude a conviction for stealing under the Criminal Code, in circumstances where the accused obtained possession through a mistake on the part of the owner of which the accused was aware at the time.
The applicant seeks to review an order of a magistrate dismissing a complaint alleging that the respondent "did steal certain property, namely $1886.70, the property of the Tasmania Bank" contrary to s234 of the Criminal Code. The dismissal was ordered on a submission that there was no case to answer.
The prosecution case consisted entirely of a statement of agreed facts, which included a signed record of interview between the police and the respondent. He 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.
On the evidence the following findings of fact could reasonably have been made or should have been made in the respondent's favour:–
1That the bank's teller or other employee paid the $1880 to the respondent on his presentation of the withdrawal form.
2That the teller intentionally paid over the $1880, knowing that the amount was $1880.
3That the teller formed the belief that the respondent was entitled to be paid that sum on presentation of the withdrawal form.
4That the respondent was not entitled to be paid that sum by the bank, and he knew it.
5That the teller would not have paid that sum to the respondent if he had realized that the respondent was not entitled to it.
6That the money handed over was the property of the bank.
7That the teller intended to transfer the bank's entire property in the money and he had the bank's authority to do so.
8That the respondent was acting dishonestly when he obtained possession of the money.
I do not agree with the learned magistrate's finding that "(n)o doubt" the teller "did so because he satisfied himself" from "the banking equipment which was in his possession that the defendant was in credit to the sum of $2000". There was no evidence that the teller checked the state of the account before passing the money over, nor of any banking equipment in his possession or available for his use, nor of any practice within the bank from which any particular inference could be drawn as to what the teller in fact did. However, a court could take judicial notice that a bank employee would not normally pay a customer money on presentation of a withdrawal form unless the employee believed that there was an entitlement to that money. Of course when dealing with a submission that there is no case to answer, it is not a question of whether the court is satisfied beyond reasonable doubt that all of the elements of the crime have been made out. The question is whether a court could be so satisfied.
Insofar as it is relevant, section 226 of the Criminal Code provides the meaning of stealing as follows:–
"226 — (1) A person who, without the consent of the owner thereof, dishonestly —
(a)takes;
(b)...
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;
..."
The definition of stealing in subs(1)(a) and the extended meaning of "takes" in subs(2)(a) were clearly intended to substantially reflect the common law, which treated the owner's consent differently depending on the kind of taking which was involved. There was no larceny by trick if the owner intended to part with his entire property in the thing allegedly stolen, but there could be larceny by trick if the owner only intended to part with his possession temporarily: R. v Pear (1779) 1 Leach 212; 168 ER 208; R. v Prince (1868) LR 1 CCR 150; R. v Mark (1902) 28 VLR 610; R. v Ward (1938) 38 SR (NSW) 308. In the case of larceny by intimidation, the owner's consent did not save the accused at all, for the courts always regarded a consent given under the compulsion of threats of harm as not a real consent: R. v McGrath (1869) LR 1 CCR 265; R. v Lovell (1881) 8 QBD 185. To be effective the owner's consent had to be full and free. There was no larceny by finding if the owner consented, or was presumed to have consented, to the finder taking possession of the goods in circumstances where the taking of possession did not therefore constitute a trespass.
In all material respects the present definition of stealing appeared in the Code when it was enacted in 1924 and no doubt it was intended to have the same or a similar effect as section 44 of the Larceny Act 1916 (UK), which was repealed in 1968. That section also required that the stealing be without the consent of the owner, and it provided that the expression "takes" included obtaining possession "under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained". The differences between the two provisions are immaterial.
It has been said that sub–paragraph (iii) of s226 (2)(a) was founded on the decision in R v Middleton (1873) LR 2 CCR 38. I do not propose to analyse that case in this judgment, as so many other judges and writers have said enough about it before now. All I do say is that a court of fifteen judges upheld a conviction for larceny, where a mistake was involved, by a majority of eleven to four, but on matters of law important to this case there was no majority agreement.
In Moynes v Cooper [1956] 1 QB 439 the defendant received an advance on his wages. On the next pay day he should therefore only have been paid three shillings and nine and a half pence but the wages clerk, either because of ignorance of the advance or forgetfulness, paid the full amount of wages of seven pounds three shillings and fourpence into the defendant's pay packet and handed it to him. Later that day he opened the packet, discovered the mistake and dishonestly decided to keep the contents. By a majority of two to one in the Divisional Court, it was held that there was no larceny. The ratio decidendi was that the defendant did not know of the mistake when he took the pay packet containing the money, so the taking was not animo furandi. On that basis the case is clearly distinguishable from this one.
In Russell v Smith [1958] 1 QB 27 the defendant was charged with stealing eight sacks of pig meal. He was an employed lorry driver who was instructed by his employer to go to the premises of a consignor, collect one ton of the meal and deliver it to a consignee. The defendant helped load up. Unknown to him the consignor made a mistake, probably in counting, as a result of which eight sacks in excess of one ton were loaded. When he reached the consignee's premises he realized the mistake and dishonestly decided to keep the excess. The Divisional Court held that he was guilty of stealing, and that there was a "taking" of the sacks when he discovered that he had the excess number and decided to appropriate them. The judgment of the Court was that of Lord Goddard CJ and he distinguished Moynes v Cooper on the basis that in that case the wages clerk intended to put in the wages packet and pass over to the defendant the exact sum of money in fact given to him, whereas in Russell v Smith it was not intended by the consignor that there should be taken eight sacks in excess of one ton. (This factual distinction between the two cases may have been valid, but Moynes v Cooper was not decided on the basis mentioned).
The case of R v Hudson [1943] KB 458 was considered in both Moynes v Cooper and Russell v Smith. It involved an accused receiving a letter intended for someone else, in which he found a cheque incorrectly made out to him, which he thereupon appropriated to his own use. His conviction was upheld by the Court of Criminal Appeal. In Moynes v Cooper the majority judgment distinguished R. v Hudson, and in Russell v Smith it was applied, on the basis that the owner of the property had not intended the accused to be the recipient of the property he was accused of stealing.
I turn to Australian authorities. A purely common law case, before the enactment of the Code, was R v Goodrick (1922) 18 Tas LR 36 in which Nicholls CJ, with whom the other two members of the Full Court agreed, said at p37:–
"After a full examination of the authorities and of the most enlightening dissertation upon the law which surrounds the facts of this case which is given in Pollock & Wright's Law of Possession, I am unable to say that there is any case reported or any principle laid down by which a man can be held guilty of larceny of goods which have been willingly and intentionally transferred to him without any fraud on his part by the owner of those goods, the owner knowing what he is doing and what the goods are and to whom he is delivering them. In my opinion the weight of authority is against the act proved in this case being held to amount to larceny."
In that case the accused's servant was sent by him to collect four pigs and the owner by mistake gave possession of the wrong four pigs to the servant, who thereupon took them to the accused's establishment. On realizing the mistake the accused decided to keep them. The cited passage from the judgment of Nicholls CJ is difficult to apply to this case because there were only set out circumstances which would not amount to larceny. It does not explain whether it would have been larceny if the pigs had been delivered by the owner directly to the accused and if the accused had then been acting dishonestly.
In R v Potisk (1973) 6 SASR 389 the facts involved a bank teller applying the wrong exchange rate when cashing foreign travellers cheques for the accused, as a result of which $2,895.17 was paid to him instead of $1,233.23. By a majority of two to one the Court held that even if the accused was aware of the mistake at the time he received the money from the teller, he was not guilty of larceny at common law. The question whether he received the money without the consent of the teller, or of the bank, was of critical importance. Bray CJ, with whom Mitchell J agreed, held that the teller intended to pass both the possession of and the property in the money to the accused and that was an answer, as the taking was not without the consent of the teller nor therefore of the bank. He preferred the reasoning of Martin, Bramwell and Cleasby BB and Brett J in R. v Middleton (supra) to that of the other nine members of the Court in that case, no majority of that Court agreeing on the appropriate legal principle to be applied. It is to be noted that in R. v Potisk the teller intended to pass the possession of, and property in, the exact sum of money to the accused, although his reason for deciding that it was the appropriate sum of money was mistaken. The same might be said of this case.
Kennison v Daire (1985) 160 CLR 129 and R. v Evenett, ex parte Attorney–General [1987] 2 Qd R. 753 were both cases involving an accused taking advantage of deficiencies in an automatic teller machine which enabled him to withdraw money notwithstanding that in Kennison v Daire the accused had previously closed his account, and in R. v Evenett, ex parte Attorney–General the sum withdrawn was in excess of the credit balance in the accused's account. In both cases it was held that the banks had not consented to the withdrawals and such was clear. Neither case is of any real assistance.
Many authorities were considered in Ilich v R (1986–1987) 162 CLR 110 in which the High Court upheld an appeal from a conviction for stealing under the Western Australian Criminal Code which did not expressly provide that the taking had to be without the consent of the owner. On one view of the facts what occurred was that the owner of money by mistake paid the accused more than he owed him, and the accused fraudulently decided to keep the excess when he later came to realize what had occurred. Wilson and Dawson JJ. said that at common law, but not under the Western Australian Criminal Code, absence of the owner's consent had to be proved and for that reason there was no larceny if there was no trespass. Keeping this distinction in mind they considered common law authorities and conveniently summarised them at pp126 and 127 as follows: –
"Both Middleton (1873) LR 2 CCR 38 and Ashwell (1885) 16 QBD190 have been treated, and in our view must be treated, as cases in which the mistake which was made was of a sufficiently fundamental kind to negate the apparent consent and to prevent ownership from passing. A mistake will be of that kind 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),p.779; Williams and Weinberg, Property Offences, 2nd ed (1986), p44; Russell on Crime, vol.2, 12th ed (1964), p1553; J C 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 of 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 in Reg v Prince (1868) LR 1 CCR 150, 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 [1969] 2 QB 400 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 [1972] 1 WLR 1341: [1972] 2 All ER 280, which was made in reliance upon Middleton, was wrong and it has been criticized accordingly: [1972] Criminal Law Review, p585 et seq G F Orchard, 'The Borderland of Theft Revisited', [1973] New Zealand Law Journal, p110. In the present case there was no mistake as to the identity of the person to whom the money was delivered. There was no mistake as to the identity of the thing delivered, which was money. If there was any mistake it was as to the quantity of money delivered and it is therefore necessary to turn to the qualification of that category of fundamental mistake which we think must be made in the case of money."
Reference was then made to R v Potisk (supra) with apparent approval. At p127 the judgment proceeded as follows:–
"In Potisk there was no mistake as to the quantity of money handed to the accused. The teller made a mistake in applying the wrong exchange rate but he intended to hand over the amount which he did. The case might have been decided simply upon the basis that there was no fundamental mistake to prevent possession and ownership passing, but Bray CJ adverts to the qualification which we have suggested saying that '... cases where ownership has been held not to pass, despite delivery, because of a mistake are cases relating to the title to specific chattels, and I doubt whether they can apply to delivery of money in circumstances like these'. And he refers to the 'curious question' which would have arisen in Potisk if the accused had been guilty of larceny, namely, whether he stole the whole of the money delivered to him or only the amount which was in excess of the sum to which he was entitled in exchange for his travellers' cheques."
Wilson and Dawson JJ then considered the negotiability of currency and particularly that ownership of money generally passes with possession. Because the facts they were considering involved a bona fide exchange of the money from the owner to the accused who did not realize there had been a mistake in overpayment at that moment, he thereupon became the owner of the money before he formed a dishonest intent. Thereafter he could not have stolen the money from the owner, because he was the owner. On this basis, they held, at p129:–
"The result is that in this case, even without rejecting Middleton and Ashwell, there was no mistake of a fundamental kind which would have operated to prevent ownership in the money passing at the time at which, upon the applicant's evidence, it was handed by Brighton to the applicant. There was no mistake as to the identity of the transferee, there was no mistake as to the identity of the money and any overpayment, being in currency, did not prevent property in the whole amount being transferred to the applicant."
Brennan J stated, at p139, that the prima facie conclusion that ownership of money in the form of currency passes when the person in possession hands it to another intending him to be the owner may be displaced in some cases where the intention is formed by mistake. But the mistake must be fundamental to the transaction and he continued:–
"To determine whether a mistake is fundamental, one must properly identify the transaction and the relationship of the mistake to it: Porter v Latec Finance (Qld) Pty Ltd (1964) 111 CLR 177 at p187. When the relevant transaction is the transfer of possession or ownership of property, a fundamental mistake must relate to the knowledge of the owner of the property as to what he is doing, what the property is, and to whom he is transferring possession or ownership (to adapt the test applied by Nicholls CJ in Goodrick (1922) 18 Tas SR 36. Of course, minds may differ on the character to be attributed to a particular mistake."
Dean J agreed generally with Wilson and Dawson JJ. and with what Bray CJ said in R v Potisk. The passages I have cited from Ilich v R, particularly the summary of authorities by Wilson and Dawson JJ., amount to persuasive authority that the respondent could not have been convicted of stealing. But of course the questions involved in that case were different than those in this case, as was highlighted by Brennan J at p137, where he said:–
"For the purposes of the crime of stealing by conversion under the Code, the inquiry into the intention of the person who is said to be the owner of the property is undertaken in order to determine whether ownership of the property has passed to the person charged, not to determine whether the property was taken invito domino."
The last case I will consider is that of McKee v Milosevic, an unreported decision of Nathan J in the Victorian Supreme Court delivered on 2 June 1988. Its facts were very similar to the ones I am considering but I respectfully disagree with the learned judge's reasoning. One of the accused, Mrs Milosevic, was entitled to be paid by her employer, the Commonwealth Bank, $210 for three days work and payment was expected by her to be made into her savings account with that bank. She went to the branch at which she operated the account and withdrew $210 using her passbook which, when she arrived at the branch, recorded that she had a credit of a few cents only. When the teller took the passbook from her he passed it through some machinery which recorded that she had a credit of $4,210.42. This was a miscalculation made by the bank. The recorded credit should only have been of the few cents and the $210. Having withdrawn the $210 she shortly afterwards, in company with her husband, attended at branches of the bank and withdrew $1000 on each of four occasions. Clearly the evidence established that she would not have been able to withdraw $1000 on any of the four occasions if the mistaken credit had not appeared on the record of her account. A magistrate held that she had no case to answer on a charge of stealing. Nathan J disagreed. The charge was pursuant to section 71 (1) of the Crimes Act 1914 (Commonwealth) which provided that it was an offence if any person "steals or fraudulently misappropriates or fraudulently converts to his own use any property". The learned judge said that the Crimes Act reflected the common law position relating to the crime of larceny. He considered a number of authorities, particularly the judgments of Brennan J and of Wilson and Dawson JJ, in Ilich v R (supra) and said that some features emerged which were:–
1Prima facie, ownership of money in the form of currency passes when a person in possession of it hands it to a recipient, intending that person to become its owner and the recipient receives it with the same intention.
2Prima facie, the efficacy of that transfer is displaced where it results from a fundamental mistake by the transferring party.
3Fundamental mistake may arise in relation to –
(i)the identity of the recipient;
(ii)the identity of the money;
(iii)whether the transferor knew what he was doing.
4A fundamental mistake is made if a transferor passes possession of money to a person whom he wrongly believes is a creditor.
5Overpayment by a creditor to a debtor does not of itself amount to a fundamental mistake.
6The prima facie transfer is vitiated where the recipient has induced it by acts of bad faith.
Nathan J then held that the prima facie position of an effective transfer of funds from the bank to Mrs Milosevic was displaced by a fundamental mistake made by the bank, compounded by positive acts of bad faith by Mr and Mrs Milosevic. Having withdrawn her pay of $210 she had ceased to be a creditor of the bank for all but a few cents. The bank then proceeded upon the basis that she was a creditor and this mistake was fundamental, he said. It was not a case of making an overpayment or of the recipient receiving more than had been requested. Nathan J considered that the bank did not know what it was doing when it incorrectly credited her account with the wrong sum of money. He also said that by identifying Mrs Milosevic's account as being entitled to a credit entry, the bank made a mistake as to the identity of the person entitled to receive funds. He added that even if he was wrong in this, the effective transfer of the funds was vitiated by the positive bad faith shown by Mr and Mrs Milosevic. He considered it immaterial that the tellers voluntarily handed over $1000 on each occasion because Mr and Mrs Milosevic had contrived to have the bank pay her the $4000, taking advantage of the error of which they were aware.
With respect I disagree with much of what Nathan J said. He appears to have been influenced by the consideration by the members of the High Court in Ilich v R (supra) of the question whether property in the money passed to the accused when he obtained possession. But the question in McKee v Milosevic and in this case, where the stealing could only have occurred at the time of obtaining possession, is whether the owner intended to part with the property or possession. In other words, the question is whether the taking was without the consent of the owner, not whether property passed because of his consent. Further, when considering whether the owner knew what he was doing, the critical moment of time to be considered is that of the giving of consent to the taking of possession, not the earlier time of the making of a mistake which led to the subsequent consent. It can never truly be said that a person knows what he is doing when he makes a mistake, but it is the existence and nature of the consent which is in issue, and not the mistaken reasons for giving it. As is said in Kenny's Outlines of Criminal Law 18th Edn at p277, concerning the Larceny Act 1916 (UK), this can hardly be the kind of mistake contemplated by the law. It could make it a stealing for a skilled collector of antiques to purchase an object which an ignorant owner had consented to sell at a price below its real value, provided of course the collector was found to be acting dishonestly.
In McKee v Milosevic and in this case, there were no fundamental mistakes made by the tellers concerning the identity of the recipients of the money and with respect, I do not understand why Nathan J thought otherwise. There were no fundamental mistakes concerning the identity of the things of which possession was given. Nor were there any fundamental mistakes as to the quantities of the money. The banks in both cases, through their employees, knew what they were doing at the time of the transfers of possession. All the evidence pointed to the fact that they correctly identified the recipients, satisfied themselves as to the amounts to be paid and correctly counted out those sums. As employees of the banks they consented to the particular recipients having possession of and the entire property in those precise sums of money.
It is not apparent to me why Nathan J considered that a mistaken belief that a person is a creditor is a fundamental mistake. He cited no authority for that proposition. Further, in a case such as this, involving the holder of a bank account, it does not sensibly make any difference whether the account was not in credit, or was in credit to the extent of five cents, five dollars, five hundred dollars or any other particular sum.
I am not aware of any authority requiring me to hold that the consent of the transferor is vitiated where the transferee has induced the transfer of possession by acts of bad faith which consist only of endeavouring to take advantage of a mistake made by the transferor, without any act of bad faith inducing the making of the mistake which led to the giving of consent. The banks' mistakes in both this case and in McKee v Milosevic were in crediting the accounts with excessive sums of money. In neither case were those mistakes brought about by any acts of bad faith on the part of the eventual recipients of the money. However, they then took advantage of those mistakes and obtained money from tellers, with the consents of the tellers who may well have made all necessary and proper enquiries normally to be expected of them by their employers before consenting to pay out the money.
If the respondent had in some way fraudulently obtained the teller's consent by inducing the mistaken crediting of his account, the crime being considered would be one of stealing by trick. But unless a fundamental mistake was thereby caused, in the sense that the authorities use that expression, there would be no stealing if the owner intended that his entire property in the money, and not just temporary possession, passed: R. v Russett [1892] 2 QB 312; R. v Fisher (1910) 5 Cr App R 102; Whitehorn Brothers v Davison [1911] 1 KB 463; Lacis v Cashmarts [1969] 2 QB 400; R. v Pear (1779) 1 Leach 212, 168 ER 208; R. v Prince (1868) LR 1 CCR 150; R. v Mark (1902) 28 VLR 610; R. v Ward (1938) 38 SR (NSW) 308; Cain v Banks [1959] Qd R. 234; Contra R v Cheatham (1886) 7 LR (NSW) (L) 359 which seems wrong. This rule applies to every case where possession is obtained under a mistake, not being a fundamental one, which is induced by fraudulent conduct of the accused. A fortiori if the accused did not induce the mistake which led to the consent to delivery of possession but simply attempted dishonestly to take advantage of it, for he should not be criminally liable in circumstances where, if he had fraudulently induced the making of the mistake (that is if he had tricked the owner) he would not have been liable.
The conclusion I come to is that because of the definition of stealing in s226 of the Code and because of cases at common law, the absence of the owner's consent at the time of taking is an element of the crime of stealing when possession is obtained through a mistake on the part of the owner, in addition to the element of dishonesty on the part of the accused. A mistake of a sufficiently fundamental kind may negate apparent consent. Examples from cases are mistakes as to the identity of the transferee (see for example R v Middleton and R v Hudson), as to the identity of the thing delivered (see R v Ashwell) and as to the quantity of the thing delivered contrary to the actual intention (see Russell v Smith). I am not persuaded by any authority that the category of fundamental mistakes should extend beyond mistakes of those kinds to the circumstances of this case. Accordingly I agree with the learned magistrate that the respondent had no case to answer on the charge of stealing, because there was insufficient evidence on which a court could have been satisfied beyond reasonable doubt that the taking was without the consent of the bank. If there is perceived to be a need to alter what I see to be the established law of this State, Parliament must make the alteration.
It was submitted by counsel for the applicant that if there was no case for the respondent to answer on the charge of stealing, there was sufficient evidence upon which he could have been convicted of the alternative crimes of obtaining property by a false pretence and of dishonestly obtaining a financial advantage (as to the possible alternatives see s338 of the Code). To find guilt of obtaining property by a false pretence there would need to be evidence of the making of a "false pretence" by the accused. That expression is defined by s249 as meaning "a false representation of fact, whether by words or otherwise.....". There was no evidence that the respondent made any express representation to the bank. Counsel for the applicant submitted that a false pretence could be implied from the fact that the accused passed a completed a withdrawal form to the teller, the implied representation being that there were sufficient funds in his account entitling him to be paid $1880.
The only relevant evidence was that on learning that the mistaken credit was recorded in his account, the accused "went to the main branch in Rooke Street where he withdrew $1880 in cash", and that in answer to a question from a police officer "is this a copy of the withdrawal form that you made out to withdraw that money", he replied "yes, that's my signature". The withdrawal form was not tendered in evidence. Apart from the fact that his signature appeared on it, there was no other evidence of its contents. Further, there was no evidence that the bank teller was influenced by what was allegedly represented to him. It might possibly have been his evidence, if he was called as a witness, that he would not have been influenced by anything represented to him by the accused concerning the state of the account, and that the only thing which would have influenced him in that regard was the bank's own record. In summary therefore, in the absence of evidence of what the accused said to the teller, of what was in the withdrawal form and of the influence such matters may have had on the decision made by the teller to pay the accused the money, there was insufficient evidence upon which a court could have found beyond reasonable doubt that the accused obtained the money by a false pretence.
For similar reasons there was insufficient evidence upon which the accused could have been found guilty of dishonestly obtaining a financial advantage. Under s252A of the Code that crime requires the accused to obtain the financial advantage by a "deception" and that word means "any deception (whether deliberate or reckless) by words or conduct as to fact or as to law ...".
Accordingly it is my opinion that the learned magistrate was correct in holding that there was no case to answer. The motion will be dismissed.
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