MCGUINESS v Police
[2016] SASC 133
•17 August 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCGUINESS v POLICE
[2016] SASC 133
Judgment of The Honourable Justice Doyle
17 August 2016
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - UNLAWFUL USER OR POSSESSION OF MOTOR VEHICLE
CRIMINAL LAW - PROCEDURE - PLEAS - PLEAS IN BAR
The appellant was charged with a series of offences, in relation to the same vehicle, which included illegal use of a motor vehicle and theft of a motor vehicle. The appellant pleaded guilty to the illegal use charge and was convicted of the theft charge.
The appellant appealed against his conviction for theft, contending that the Magistrate erred in finding the charge of theft proven beyond reasonable doubt as there was no evidence to suggest that the defendant intended to permanently deprive the owner of the motor vehicle or to make a serious encroachment on the owner’s property rights. The appellant also contended that the Magistrate erred in deciding that on the facts of the case the defendant could be guilty of both the illegal use charge and the theft charge without it being duplicitous.
Held (per Doyle J), dismissing the appeal:
1. The Magistrate did not err in finding that the facts of the case established that the appellant had the requisite intention.
2. The plea of guilty in respect of the illegal use charge did not bar or otherwise render inappropriate or impermissible a conviction in respect of the theft charge.
Criminal Law Consolidation Act 1935 (SA) s 86A, s 134; Theft Act 1968 (UK) s 6(1); Crimes Act 1958 (UK) s 73(12), s 73(14), referred to.
R v Dardovska (2003) 6 VR 628; Sharp v McCormick [1986] VR 869; R v Wilson [2014] SADC 177; R v Waugh (2005) 93 SASR 274, discussed.
R v Easom [1971] 2 QB 315; R v Lloyd [1985] 1 QB 829; Pearce v The Queen (1998) 194 CLR 610; Rucioch v Police (2004) 88 SASR 326, considered.
MCGUINESS v POLICE
[2016] SASC 133Magistrates Appeal: Criminal
DOYLE J:
The appellant was charged with a series of offences which included illegal use of a motor vehicle contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA) (CLCA) (count 1) and theft of a motor vehicle contrary to s 134 of the CLCA (count 2).
The appellant pleaded guilty to count 1, and was convicted by a Magistrate of both counts.
In this appeal against his conviction for theft (count 2), the appellant relies upon two grounds of appeal:
1. The Magistrate erred in finding the charge of theft proven beyond reasonable doubt as there was no evidence to suggest that the defendant intended to permanently deprive the owner of the motor vehicle or to make a serious encroachment on the owner’s property rights in relation to the motor vehicle.
2. The Magistrate erred in deciding that on the facts of the case the defendant could be guilty of both the illegal use charge and the charge of theft without it being duplicitous.
Background
The Information by which the appellant was charged particularised counts 1 and 2 in the following terms:
1. Between the 12th and 15th day of September 2015 at ROXBY DOWNS in the said State, drove a motor vehicle without first obtaining the consent of Spotless Facility Services the owner thereof.
Section 86a of the Criminal Law Consolidation Act 1935.
This is a minor indictable offence.
2. Between the 12th and 15th day of September 2015 at ROXBY DOWNS in the said State, committed theft by taking property namely a white 2010 Toyota Landcruiser Prado of a value involving $30,000 or less but more than $2,500, the property of Spotless Facility Services dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights.
Section 134 of the Criminal Law Consolidation Act 1935.
This is a minor indictable offence.
The appellant entered a plea of guilty in respect of count 1. The trial in respect of count 2 proceeded without any oral evidence. The parties provided the Magistrate with a statement of nine agreed facts, namely:
1. In the early hours of Monday 14 September 2015 the defendant entered a motor vehicle Toyota Prado S145AKS which was parked in the driveway of 3 Blanche Court Roxby Downs.
2. The vehicle was unlocked and had the keys in the ignition.
3. The defendant then drove the vehicle out of Roxby Downs along the main road through Woomera to the Stuart Highway, where he turned south.
4. The defendant had no permission to use the motor vehicle and was aware he had no such permission.
5. Approximately 8 kilometres south of Pimba, the defendant lost control of the vehicle and it left the road to the east before coming to rest on its left side about 15 metres from the verge.
6. The defendant flagged a passing truck driver who took him to Spuds Roadhouse at Pimba.
7. Witness Derek Thompson took the defendant back to the vehicle and assisted the defendant to right the vehicle back on to its wheels.
8. Police arrived at the scene at approximately 7:40 am, at which time the defendant was attempting to change the left front tyre which had blown off its rim.
9. Police then took the defendant in to custody.
The prosecution also relied upon a series of affidavits, which were tendered by consent and without any request by the defendant that the deponents be made available for cross-examination. The deponents of those affidavits included Mr Stretton, Mr Thompson, Mr Bland and Senior Constable Sturtevant.
The affidavits did not add much to the agreed facts. Mr Stretton’s evidence was that the vehicle in question was registered to Leaseplan Australia Limited, but leased by the company he managed, Spotless Facility Services Pty Ltd. He said that he had left the vehicle in his driveway on the afternoon of 13 September 2015, and that in accordance with his usual practice at the time it was unlocked and with the keys in the centre console. He did not give anyone permission to take the vehicle and did not know who took it. It was there late in the afternoon of 13 September 2015, but gone by early the following morning. He reported it stolen at about 7.00 am.
Mr Thompson explained that he came across the appellant at Spud’s Roadhouse in Pimba at about 7.20 am on 14 September 2015. The appellant told him he had rolled his vehicle on the Stuart Highway, just south of Pimba, after swerving to miss a kangaroo and then losing control. He asked Mr Thompson to help him roll the vehicle back onto its wheels so that he could continue travelling south to Whyalla before the police arrived. Mr Thompson described the appellant as acting erratically and as though he may have been under the influence of drugs. Mr Thompson drove the appellant to the car, which was about eight kilometres south of the Roadhouse, and assisted him to roll the vehicle back onto its wheels. When Mr Thompson left the appellant, he was attempting to change the front passenger side tyre which had blown out.
Senior Constable Sturtevant attended the scene of the accident about 7.40 am on 14 September 2015. The appellant was at that point still attempting to change the front tyre. He told Senior Constable Sturtevant that he had rolled after swerving to avoid a kangaroo while heading south towards Port Augusta. Senior Constable Sturtevant considered the appellant to be behaving in an animated fashion and as though he might have been under the influence of a drug. He returned a negative result to an alcohol test, although later acknowledged that he had ingested “meth” the previous evening. Upon questioning at the scene, the appellant said that the car was his and that he had purchased it from Mr Bland in Roxby Downs the previous morning for $5,000. He was not able to produce any paperwork in relation to this asserted transfer. The appellant was arrested at the scene of the accident just before 9.00 am, and was then taken to the Port Augusta Police Station.
In his affidavit, Mr Bland said that he had never owned, or been in possession of, a Toyota Prado, and that he had never sold or agreed to sell such a vehicle to anyone. He had met the appellant a couple of times but had otherwise had nothing to do him.
The prosecution also tendered a video recording of a police interview given by the appellant, notes of the two police officers who provided affidavits and some further video and photographs taken on 14 September 2015. The video recorded interview contained an admission by the appellant that he intended travelling to Whyalla.
Ground 1: Theft of a motor vehicle
Section 134 of the CLCA relevantly provides:
134—Theft (and receiving)
(1) A person is guilty of theft if the person deals with property—
(a) dishonestly; and
(b) without the owner's consent; and
(c) intending—
(i) to deprive the owner permanently of the property; or
(ii) to make a serious encroachment on the owner's proprietary rights.
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 15 years.
(2)A person intends to make a serious encroachment on an owner's proprietary rights if the person intends—
(a) to treat the property as his or her own to dispose of regardless of the owner's rights; or
(b) to deal with the property in a way that creates a substantial risk (of which the person is aware)—
(i) that the owner will not get it back; or
(ii)that, when the owner gets it back, its value will be substantially impaired.
The terms “deal”, “property”, “dishonesty”, “owner” and “consent” are each defined in ss 130-132 of the CLCA. However, as these elements were not in dispute it is not necessary to consider those definitions.
The appellant admitted that he entered the vehicle parked in a Roxby Downs driveway. He was aware he had no permission to use it. He drove it out of Roxby Downs, through Woomera, to the Stuart Highway and a location approximately eight kilometres south of Pimba, where he lost control of it.
These facts were sufficient to establish the first three elements of the offence of theft under s 134, namely that the appellant dealt with the vehicle, and that he did so dishonestly and without the owner’s consent. In any event, as the Magistrate noted, there was no dispute about these elements.
As the Magistrate observed, the only issue in dispute in this case was the element of intention, and in particular whether the evidence established beyond reasonable doubt that the appellant intended to deprive the owner of the vehicle on a permanent basis (s 134(1)(c)(i)) or to make a serious encroachment on the owner’s proprietary rights (s 134(1)(c)(ii), as defined in s 134(2)).
The element of intention must be addressed at the time of dealing with the vehicle, which in this case was the time at which the appellant took the vehicle from the driveway in Roxby Downs. I consider that the evidence established beyond reasonable doubt that at the moment the appellant entered the vehicle and drove it out of the driveway, he intended to drive it south to Whyalla (or perhaps Port Augusta). The appellant made admissions to this effect both to Mr Thompson and in his record of interview. The appellant’s conduct in attempting to change the tyre of the car after it had been returned to an upright position suggests an intention to travel further south, and is consistent with an intention to drive it to Whyalla.
I do not think anything turns on whether the appellant’s intention was to drive to Whyalla (as he said in his police interview and to Mr Thompson) or to Port Augusta (as he apparently told Senior Constable Sturtevant). Both are significantly further south from Pimba, some hundreds of kilometres south of Roxby Downs.
The issue for the Magistrate was whether an intention to drive the car to Whyalla was sufficient to establish an intention either (i) to deprive the owner permanently of the vehicle, or (ii) to make a serious encroachment on the owner’s proprietary rights.
There is no evidence of what the appellant intended to do with the vehicle once he arrived in Whyalla. It follows that there was no basis on the evidence to conclude beyond reasonable doubt that the appellant intended to retain possession of the car once in Whyalla, or otherwise deal with it in a manner that would result in the owner being permanently deprived of the motor vehicle. It is possible, for example, that the appellant intended to abandon the car with an expectation that the car (being registered to its owner) would in due course be returned to its owner.
That leaves for consideration whether the appellant’s conduct nevertheless established beyond reasonable doubt an intention to make a serious encroachment on the owner’s proprietary rights. This in turn requires consideration of the two limbs of the articulation of this concept in s 134(2)(a) and (b).
It was not suggested at trial or on appeal that s 134(2)(b) was made out. While the appellant did in fact damage the vehicle, this occurred as a result of an accident and not something intended at the outset by the appellant. It was not suggested that the appellant intended at the relevant time to deal with the vehicle in a manner that he was aware created a substantial risk of the owner either not getting it back or only getting it back with its value substantially impaired.
The focus at trial was on whether, by intending to drive the car to Whyalla, the appellant intended “to treat the [vehicle] as his … own to dispose of regardless of the owner’s rights.”
The appellant’s contention is that an intention merely to use a car to travel from place A to place B, in the absence of any intention to retain possession thereafter, is not sufficient. He contends that the notion of treating property as one’s own to dispose of regardless of the owner’s rights connotes, at least in the case of a vehicle, more than one-off use. While accepting something less than permanent use may suffice, on the appellant’s case, the temporary use must be of an ongoing nature or duration. On the appellant’s case, Parliament intended that unauthorised one-off use of a vehicle (for example, in the typical joyrider scenario, or in this case, for the purposes of transporting the defendant from A to B) be covered by the offence of illegal use of a motor vehicle under s 86A of the CLCA, and not s 134 of that Act.
The respondent, on the other hand, contends that a one-off use of a vehicle would generally constitute a serious encroachment of the owner’s rights under s 134(2)(a). The respondent acknowledges that there will therefore be substantial overlap between this offence and that of illegal use of a motor vehicle under s 86A of the CLCA. The respondent allowed for the possibility that an intention to borrow or use a vehicle for a short period of time with the intention of returning it to or near its original location may not suffice to establish an intention to make a serious encroachment. However, the intention to take a vehicle from A to B without returning it to or near its original location would ordinarily, if not always, suffice.
In determining the merit of these competing approaches to s 134(2), it is helpful to consider briefly the history and legislative context of this provision.
At common law, it was an element of the offence of larceny that the defendant intended permanently to deprive the owner of the property in question. It followed that taking property with an intention that it be returned to the owner was generally not sufficient. But there was significant uncertainty in the application of this element of intention, not only in cases of unauthorised borrowing and temporary use (including where the use resulted in the property being altered in some manner), but also where the defendant had a conditional intention or was simply reckless or indifferent as to the owner’s rights.
The common law developed principles to address some of the situations in which establishing this element of the offence had proven problematic. As Charles JA explained in R v Dardovska:[1]
Before the 1968 legislation was enacted in the United Kingdom, an “intention permanently to deprive” as an element in the crime of larceny had troubled the courts on many occasions, particularly in circumstances where the accused could only be shown to have had what might be called a conditional or reckless intention to appropriate. There were three situations in which courts had found an intention permanently to deprive in such circumstances: first, where a person took property from the owner intending to return the property only if the owner paid for it, referred to as the “ransom principle”; secondly, where the intention was to return the property only after it had undergone some fundamental change of character, the “essential quality principle”; and thirdly, where a person pawned another’s property without his consent, hoping to be able to redeem the pledge, but without being certain of his ability to do so, the “pawning principle”.
[1] R v Dardovska (2003) 6 VR 628 at [24] (citations omitted).
However, there remained uncertainty surrounding, and difficulty in establishing, the requisite intention in cases of not only conditional or reckless intention to appropriate property, but also unauthorised borrowing and temporary use. A particular illustration of this uncertainty and difficulty in establishing intention existed in the case of the unauthorised taking of a vehicle for a temporary purpose, with a view to its subsequent abandonment.
There have been legislative responses both to the general uncertainty and difficulties mentioned above, as well as the specific issue in relation to the unauthorised use of motor vehicles.
In the United Kingdom, the general problem was addressed through the introduction of s 6(1) of the Theft Act 1968 (UK). That section provides:
A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
In Victoria, the legislative response came through the introduction in 1973 of provisions including ss 73(12) and (14) of the Crimes Act 1958 (Vic). The former is a general provision in the same terms as s 6(1) of the Theft Act. The latter deals specifically with motor vehicles and aircraft and provides that “proof that the person charged took or in any manner used the motor vehicle or aircraft without the consent of the owner … shall be conclusive evidence that the person charged intended to permanently deprive the owner of it”.
The United Kingdom provision has generally received a relatively narrow interpretation,[2] with the Court of Appeal in R v Lloyd[3] going so far as to suggest that s 6(1) should not be construed as imposing liability where it would not have been imposed prior to its enactment.
[2] R v Easom [1971] 2 QB 315; R v Lloyd [1985] 1 QB 829.
[3] R v Lloyd [1985] 1 QB 829 at 836.
The Victorian equivalent has been construed more liberally. In Sharp v McCormick[4] the defendant was intercepted by police and found in possession of a motor vehicle coil, which he admitted he had taken from his employer dishonestly and without permission. He said he intended to fit it to his car and added that if it had turned out to be wrong size he would have returned it to its owner. He was charged with theft. The Magistrate upheld a submission that because nothing more than a conditional intention had been proved, there was no case to answer. On appeal, Murray J took a different view. His Honour said:[5]
[I]f the facts in the present case establish that the defendant intended to keep the coil unless he later decided to return it then his intention at the time of the appropriation is sufficient to establish theft under s. 72(1). If the question is posed the other way, namely that the defendant intended to return the coil unless he later decided to keep it, then it appears to me that the appropriation would fall within the first limb of sub-s. (12). His reservation of the probability or possibility of keeping it would amount to an intention to treat the coil as his own to dispose of regardless of the owner’s rights. It must be remembered that the operation of sub-s. (12) depends upon the absence of an actual intent permanently to deprive the owner of the property in question at the time of the appropriation.
It follows that what must be examined is the intention of the respondent at the moment he appropriated the coil. The evidence establishes that his intention at that time was to take the coil to see whether it fitted his motor car in which case to retain it and otherwise to return it to his employer. To say that his intention to return to his employer if it did not fit his motor car was an intention to have regard to the rights of his employer is in my opinion little short of an abuse of language. When the respondent took the coil he was quite clearly treating the coil as his own to dispose of as he saw fit and he was paying no regard to the rights of the true owner. His stated intention of returning it if it did not fit his car was simply a matter of choice on his part which he may or may not have carried out when the time came. The rights of his employer in regard to the property were completely ignored at the time of the appropriation.
[4] Sharp v McCormick [1986] VR 869.
[5] Sharp v McCormick [1986] VR 869 at 872-873.
In R v Dardovska, Charles JA surveyed the English authorities, observing that despite the decision of the Court of Appeal in R v Lloyd, the Courts had not always accepted that s 6(1) of the Theft Act was limited precisely to the previous position at common law.[6]
[6] R v Dardovska (2003) 6 VR 628 at [26].
In that case the defendant had taken certain documents and a tape recorder from the victim. The defendant’s case at trial was that it was her intention to take the victim’s belongings to the police in order to report the victim’s dishonest dealings. It was held that this intention was not sufficient to establish the element of intention as set out in the Victorian equivalent of s 6(1), s 73(12). Charles JA explained:[7]
I have referred at some length to a number of the cases dealing with s 6 of the Theft Act and s 73(12) for the purpose of demonstrating the nature of the intention which has usually been said to justify the exceptional course of referring a jury hearing a charge of theft to these provisions. The present case is plainly not one of the three types earlier mentioned which at common law established an intention permanently to deprive in the extended sense. There was no suggestion of ransoming or pawning, nor was there any intention that the documents should only be returned after undergoing some fundamental change of character. The applicant, it may at once be accepted, had no legal right to take the documents to the police. But nevertheless I find it surprising that her actions might have been thought to have involved any intention of permanently depriving Akguner of the documents in the relevant sense. Dardovska clearly had no intention of obtaining any form of financial advantage from taking the documents, which were in any case worthless. She had, in Akguner’s presence, rung the Melton Police Station. There was no reason to doubt her defence that she was outraged that Akguner was applying to become a Justice of the Peace and wanted the police to see the documents, to draw their attention to her argument that he should not succeed in that application. There was no obvious reason why the documents would not, once the police had seen and possibly copied them, have been returned to Akguner. In so far as s 73(12) is concerned, although Dardovska had no entitlement to take the documents from Akguner, her intention, far from treating the documents as her own to dispose of regardless of Akguner’s rights, seems to have been rather to insist to the police that they were in fact Akguner’s documents, and that the police should take notice of them accordingly. Even if the documents had had some value, the action of taking them to the police for them to inspect could not have resulted in any fundamental change to the character of the documents or any reduction in their value.
[7] R v Dardovska (2003) 6 VR 628 at [33].
In South Australia, Parliament initially addressed the particular difficulty that arose in relation to the case of unauthorised temporary use of motor vehicles through the enactment of s 86A. It subsequently addressed the more general uncertainty and difficulty in relation to the element of intention for the purposes of larceny through the redrafted provisions of Part 5 of the CLCA that were introduced in 2002. These amendments, while extending the offence to circumstances involving an intention by the defendant “to treat the property as his or her own to dispose of regardless of the owner’s rights”, did so through a different legislative technique to that adopted in the United Kingdom and Victorian legislation. Rather than providing that this state of mind suffices to establish an intention by the defendant to permanently deprive, the South Australian legislation included it as a separate but sufficient form of intention (namely, an intention to make a serious encroachment on the owner’s proprietary rights).
In my view, given the above history and context, there can be little doubt that the South Australian legislative inclusion was intended to expand the reach of the offence of theft beyond that of the common law of larceny. It was intended to apply to some situations of unauthorised borrowing or use for a temporary period that would fall short of an intention to permanently deprive, and hence not be sufficient to constitute the offence of larceny.
I do not suggest that an intention to make a serious encroachment upon the owner’s proprietary rights will be made out in all cases involving an intention to make temporary use of someone else’s property. Close attention needs to be paid to the further elaboration upon what is required to establish this state of mind in ss 134(2)(a) and (b). I put to one side s 134(2)(b) because it is relatively clear in its meaning and is in any event not relevant to the disposition of this appeal. Section 134(2)(a) requires an intention by the defendant to treat the property “as his or her own to dispose of regardless of the owner’s rights”. In giving work to do to each part of this phrase, it seems to me that what is contemplated is a form of dealing or use by the defendant that ignores, or is inconsistent with, the owner’s rights over the property. In my view, this would extend to use that involves indifference as to the owner’s rights.
Precisely what will be necessary in a particular case will depend upon not only the nature and duration of the intended use, but also the nature of the property. In the case of some items of property, a relatively minor and temporary use will suffice. On the other hand, there will be other items of property in respect of which more is required.
In interpreting the concept of serious encroachment in s 134(2) of the CLCA, the Magistrate relied upon the reasons of Lovell DCJ (as he was then) in R v Wilson.[8] In that case a motor vehicle was taken from the owner’s garage and some five days later found adjacent to premises where the defendant was residing. The defendant had the keys to the vehicle in his pocket. In considering the meaning of the reference to “dispose of” in s 134(2), Lovell DCJ said:[9]
It is important to view the expression in the context of the section. There are really three parts to the phrase use in subsection (2)(a). They are ‘to treat the property as his own’, to ‘dispose of’, and to be acting ‘regardless of the owner’s rights’. Those words must be given work to do. Obviously disposal of the item, in the narrower sense of ‘get rid of’, such as by sale, may well be sufficient to prove an intention to permanently deprive the owner. The fact that the subsection is an alternative to that state of mind suggests it should be given a broader interpretation.
‘Dispose of’, in my view, is not limited to the concept of ‘getting rid of’ in the narrow sense. However, an intention merely to use an item of property as one’s own to dispose of, without more, is not sufficient to found criminal liability. It must be an act that is done ‘regardless of the owner’s rights’. Thus, if an accused is dealing with the property as if it is his own, in the sense that he is doing what he wants to with it, controlling it or managing it, and he is doing so regardless of the owner’s rights, this element would be proved.
[8] R v Wilson [2014] SADC 177.
[9] R v Wilson [2014] SADC 177 at [153]-[154].
Lovell DCJ later added:[10]
If I am wrong about the interpretation of the expression ‘dispose of’ and a narrower interpretation should be used, I would still find this element proved beyond a reasonable doubt. At the time of his dealing there are really only four possible alternatives the accused was facing. He could keep the car, he could sell it, he could give it away or he could abandon it. If the first option was his intention, then he would be caught by s 134(1)(c)(i). If any of the other three were his intention, he would be caught by the narrower definition of ‘dispose of’ under s 134(1)(c)(ii). The Information alleges the alternatives in the particulars of the charge of theft. I am not satisfied beyond a reasonable doubt that he had, at the time of dealing, an intention to permanently deprive the owner of the car. However, I am satisfied beyond a reasonable doubt that he intended to make a serious encroachment of the owner’s proprietary rights as discussed.
[10] R v Wilson [2014] SADC 177 at [158].
I agree with the approach taken by Lovell DCJ. In particular, I agree with his Honour’s view that an intention to abandon a motor vehicle will usually suffice to establish an intention to make a serious encroachment upon the owner’s proprietary rights for the purposes of s 134(1)(c)(ii). If a defendant abandons a motor vehicle, he or she may expect or contemplate that, by reason of it being registered to its owner, it will in all likelihood soon be returned to that owner. While this will generally prevent the prosecution establishing an intention permanently to deprive the owner of their vehicle, in my view it will ordinarily involve a sufficient level of indifference to the owner’s rights to establish the intention required by s 134(2)(a).
It may be that there will be cases in which an intention to use the owner’s vehicle for a short and limited purpose will fall short of establishing the state of mind required by s 134(2)(a). Examples might include an intention to ‘borrow’ someone’s car without their consent for a short period but then return it to that person, or to return it to a place where it is almost inevitable they will very soon locate it. In such cases there will be limited if any interference with the owner’s rights and the defendant’s state of mind may fall just short of indifference to those rights. In those cases, the prosecution will likely fail to establish an intention by the defendant “to treat the property as his or her own to dispose of regardless of the owner’s rights”.
But in the typical case of a defendant who takes a car with the intention of using it for joyriding, or for using it to transport him from A to B (with a view to abandoning it at B), I consider the state of mind required by s 134(2)(a) will be made out. I do not think that the reference in that subsection to an intention to treat the property as his or her own requires an intention to keep the vehicle and use it as their own for an extended period of time or on multiple occasions. In my view, an intention by the defendant to use for the purpose of joyriding or as a means of transport from A to B will suffice to establish an intention to treat the vehicle as his or her own. And if the intention is thereafter to abandon the vehicle, I consider this will be sufficient to establish the requisite degree of indifference to the owner’s rights to constitute an intention to treat the vehicle as his or her own to dispose of “regardless of the owner’s rights”.
Applying this approach to the present case, it is my view that the facts agreed (and elaborated upon in the affidavit material) established the requisite intention on the part of the appellant. In my view, the admitted intention to drive the vehicle to Whyalla, without any suggestion that the appellant gave any consideration to returning the vehicle to its owner, involved an intention by the appellant to use the vehicle as his own to dispose of regardless of the owner’s rights.
In reaching the above view as to the proper construction of s 134, I have not overlooked the fact that a consequence will be that there may be little work for s 86A of the CLCA to do. For example, in most cases involving joyriding, the defendant will be guilty of the more serious charge of theft. As the respondent acknowledged, the introduction of s 134 in its present form has somewhat eroded the original reason for the s 86A illegal use offence. However, in understanding the significance of this consideration it is relevant to bear in mind two matters.
First, s 86A was enacted earlier in time so as to address the particular position in relation to motor vehicles, whereas s 134 was part of a later and more general reform of provisions dealing with all forms of property. Given the broader range of matters that s 134 is intended to address, there is no reason to consider it unlikely that Parliament intended that there be significant overlap in the operation of s 86A and s 134.
Secondly, while significant, the overlap is not complete even in relation to motor vehicles. For example, illegal use might be established in situations where the evidence does not reveal a basis for inferring the requisite intention to permanently deprive or make a serious encroachment on the owner’s rights under s 134.
For the reasons I have given, ground of appeal 1 has not been made out.
Ground 2: Duplicity
I have earlier set out the terms of s 134 of the CLCA. Section 86A(1) of the Act provides:
86A—Using motor vehicle without consent
(1) A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.
Penalty:
For a first offence—imprisonment for 2 years;
For a subsequent offence—imprisonment for not less than 3 months and not more than 4 years.
As White J observed in R v Waugh,[11] depending on the circumstances, the theft of a vehicle may have very much in common with the offence of illegal use of a vehicle.
[11] R v Waugh (2005) 93 SASR 274 at [11].
In the case of the theft of a motor vehicle, the elements of the offence are (1) dealing with the vehicle, (2) dishonestly, (3) without the owner’s consent, and (4) intending either to deprive the owner permanently of the vehicle or to make a serious encroachment on the owner’s proprietary rights.
In the case of the illegal use offence, the elements are (1) driving, using or interfering with a motor vehicle, (2) on a road or elsewhere, (3) without first obtaining the consent of the owner.
In R v Waugh,[12] the appellant was charged with offences of illegal use and theft of three separate vehicles. Counts 1 and 2 related to the theft and illegal use respectively of the car belonging to victim 1; counts 4 and 5 involved the theft and illegal use of the car belonging to victim 2; and counts 6 and 7 involved the theft and illegal use of the car belonging to victim 3. In respect of counts 1 and 2, the theft and use were alleged to have occurred in different suburbs, with the use occurring two days later. In respect of counts 6 and 7, the theft and use were alleged to have occurred in different suburbs but on the same day. In respect of counts 4 and 5, the theft and use were alleged to have occurred in the same suburb and on the same day.
[12] R v Waugh (2005) 93 SASR 274.
In his appeal against conviction, the appellant in that case argued that he could not, as a matter of law (or at least in the circumstances of that case) be convicted of both theft and illegal use of the same vehicle pursuant to the above counts. It was argued in the alternative that it was inappropriate, or involved an abuse of process, to do so. In either event, the contention was that the convictions for illegal use should be set aside.
As White J explained, the circumstances in which a defendant is entitled to raise a plea to one offence in bar to a further charge, or entitled to a stay of proceedings on the further charge arising from the same or substantially the same conduct, were considered by the High Court in Pearce v The Queen.[13] McHugh, Hayne and Callinan JJ held that a plea in bar should be confined to those cases in which the elements of the offences charged are identical, or in which all of the elements of one offence are wholly contained within the other.[14]
[13] Pearce v The Queen (1998) 194 CLR 610.
[14] Pearce v The Queen (1998) 194 CLR 610 at [24]; Rucioch v Police (2004) 88 SASR 326 at [27].
But it is important to note, as White J did in R v Waugh,[15] that the principle applies where each offence arises from the same, or substantially the same set of facts. It is immaterial that the elements may be the same if it is not the same conduct, or substantially the same conduct, which is relied on for each offence.
[15] R v Waugh (2005) 93 SASR 274 at [12].
In applying that approach to the facts in R v Waugh, White J reasoned:[16]
In my opinion, the circumstances giving rise to this appeal are not an occasion for the application of the principles relating to a plea in bar or to a stay of the prosecution of the offences of illegal use. It is reasonably clear from the terms of the Information charging the offences that in relation to two of the pairs of offences, the conduct relied upon for the offence of illegal use was different from the conduct relied upon for the offence of theft of the same vehicle. The theft of the vehicle of victim 1 was alleged to have been committed on 21 May 2004 at Montacute, a suburb of Adelaide, whereas the offence of illegal use of the same vehicle was alleged to have been committed two days later, on 23 May 2004, at Modbury, approximately 15 km away from Montacute. The conduct which was said to comprise the “taking” of the vehicle on 21 May 2004 could not have been the same conduct comprising the “driving” of the vehicle on 23 May 2004. Furthermore, the offence of theft, by its nature, is an offence which is completed at the time of the taking of the vehicle (providing that, at the time of the taking of that vehicle, the defendant has the intention either to deprive the owner permanently of the vehicle or to make a serious encroachment on the owner's proprietary rights). The offence of illegal use is capable of being committed over a span of time, being the whole of the period of the use of the vehicle or, alternatively, the use of the vehicle in a particular locality. In these circumstances, it cannot be concluded that the elements of the offence of illegal use alleged against the appellant in count 2 were included in the elements of the offence of theft alleged against him.
[16] R v Waugh (2005) 93 SASR 274 at [13].
After observing that a similar position applied in respect of counts 6 and 7, White J addressed counts 4 and 5 in these terms:[17]
The position with the offences concerning the vehicle of victim 2 is admittedly not quite so clear. Each of the offences of theft and illegal use involving victim 2’s vehicle was alleged to have occurred on 23 May 2004 at Hackney. There is no obvious feature of time or place in the respective counts which enables it to be concluded that each was based on different conduct. But Hackney is a large suburb. The theft could well have occurred in one part of Hackney and the illegal use in another. The statement of victim 2 indicates that his vehicle was stolen from the forecourt of a Hackney Road service station while he was putting air in its tyres and was last seen by him travelling east on Westbury Street, Hackney. The conduct relied upon for the theft could therefore have been different from the conduct comprising the illegal use, the latter being conduct which continued up to the cessation of the driving of the vehicle (or at the least until the vehicle left the suburb of Hackney) with the former offence being completed at or about the time at which the vehicle was removed from the service station forecourt. While it is not possible to be certain about this in the absence of particulars, it would be consistent with counts 1 and 2 and counts 4 and 5 to regard these two counts as being based on different conduct.
[17] R v Waugh (2005) 93 SASR 274 at [15].
In my view, White J’s approach was a correct application of the relevant principles (as set out by the High Court in Pearce v The Queen) to the facts of that case.
Applying the same approach here, while there is significant overlap in the two offences, the overlap is not precise or complete. There are differences in the elements of each offence. For example, in the case of the s 86A offence of illegal use, the elements did not include proof that the appellant acted dishonestly, or that the defendant acted with an intention to permanently deprive or make a serious encroachment on the owner’s rights. Further, the elements of the s 134 offence of theft did not require that the dealing in question involve driving, using or interfering with the property.
Further, and in any event, the conduct relied upon as constituting the offences was different. While both counts were particularised as having occurred in Roxby Downs, the position was similar to the counts of illegal use and theft in R v Waugh which were both particularised as having occurred in Hackney. The reference to the same suburb does not mean that the offences related to the same conduct. Here, the theft was complete upon the appellant entering the vehicle in the Roxby Downs driveway and commencing to drive it (with the requisite intention). The illegal use, however, involved the appellant’s conduct in driving the vehicle towards Whyalla (at least until he left the outskirts of Roxby Downs).
For these reasons, I do not accept that the plea of guilty in respect of count 1 in any way barred, or otherwise rendered inappropriate or impermissible, a conviction in respect of count 2.
It may be that defendants will ordinarily be charged with one or other of these two offences rather that both, or be charged with the two in the alternative. For example, in R v Wilson[18] the defendant was charged with theft of a motor vehicle, with the offence of illegal use of a motor vehicle without consent alleged only in the alternative. However, the relevant point for the purposes of this case is that there was no barrier to the appellant being convicted of both offences. Of course, consistent with Pearce v The Queen,[19] when it comes to sentencing, the Court will need to ensure the overlap is not overlooked and that the appellant is not punished twice for the same conduct, or for the commission of elements that are common to the two offences.
[18] R v Wilson [2014] SADC 177.
[19] Pearce v The Queen (1998) 194 CLR 610 at [40]; Rucioch v Police (2004) 88 SASR 326 at [35].
It follows that ground of appeal 2 must be rejected.
Conclusion
For the reasons set out, the appeal is dismissed.
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