NSW Police v Fawcett

[2018] NSWLC 30

Local Court

New South Wales

• Amendment notes

Medium Neutral Citation:

NSW Police v Fawcett [2018] NSWLC 30

Hearing dates:

9 November 2018

Date of orders:

16 November 2018

Decision date:

16 November 2018

Jurisdiction:

Criminal

Before:

Brender LCM

Decision:

see [24] - [25]

Catchwords:

CRIME — Property offences — Larceny — Possess implements

Legislation Cited:

Crimes Act 1900 No 40

Cases Cited:

Crown v McDonald (1983) 1 NSWLR 729

R v Pierpoint (14 December 1993 unreported)

Crown v Palmer [2005] NSWCCA 349

R v Adams (1935) 53 CLR 563

Category:

Principal judgment

Parties:

Defendant: James Fawcett
Prosecution: NSW Police

Representation:

Solicitor for Mr Fawcett: Mr Hemsley
Prosecutor: Miss Lewis

File Number(s):

2018/00126038

Judgment

1. Mr Fawcett was charged with larceny and possessing an implement capable of being used to enter and drive a conveyance. The police indicated it was likely that they would not seek a conviction on both charges but wished to proceed at least initially on both as they contain different elements.

2. The evidence consisted of evidence from two police that they attended Mr Fawcett’s home at about 11 PM on a Friday night and found him asleep in a chair. They arrested him for breach of bail and on searching him, located a vehicle remote control in his pocket. He made admissions that he does not own a Toyota car. He said he found the remote control in the car park of the KFC on Wagga Road and he didn’t know who it belonged to. He said he hadn’t tried to find the owner or attempt to hand it in to the police. A photograph shows an apparently intact Toyota vehicle remote control. There does not seem to be any key attached.

3. The video of the interview suggested Mr Fawcett may have been sleepy and/or affected by drugs or alcohol.

4. The charge of larceny is brought pursuant to s 117 of the Crimes Act 1900. There are six elements of the offence, four of which are conceded. Two in contest are whether he had an intention to permanently deprive and whether the possession was dishonest.

5. There is no evidence as to when he located the remote control. It was submitted from the bar table without objection that the KFC on Wagga Road was only about 200 m from his house, whereas the police station was about a further 4 km away. There is no evidence whether he holds a driver’s licence or has access to a vehicle.

6. In my view the crown have not proven beyond reasonable doubt intention to permanently deprive because they have not demonstrated that he had a reasonable opportunity to hand the remote control into the police or to give it to the proprietors of the KFC or try to locate the owner. For example given the time of night it may be that he had only just found the remote control and the shop may have been closed, it may also be the case that he hadn’t had an opportunity to take it to the police station. The decision in Crown v McDonald (1983) 1 NSWLR 729 explains that the relevant intention can be deduced from the facts and there are various things that a person who is honest would do when finding someone else’s property. There is no evidence that Mr Fawcett had the opportunity to act as an honest person would be expected to. Accordingly I decline to find beyond reasonable doubt that his actions demonstrate dishonesty. A strong suspicion of guilt is not a substitute for proof beyond reasonable doubt.

7. The alternative charge is brought pursuant to s 114 (1) (b) of the Crimes Act.

8. The elements of that offence are that the person must first have property in his possession, second must do so without lawful excuse, and third the property must be an implement capable of being used to enter or drive or enter and drive a conveyance.

9. The first element is not in contest. As to the second element, there is an onus on the defendant to demonstrate it on the balance of probabilities. That has not been attempted.

10. The only matters remaining are whether or not the remote control is an implement, and whether it is capable of being used to enter a conveyance.

11. An implement according to the dictionary meaning of that word is a tool or other piece of equipment used for a particular purpose.

12. Looking at a photograph of the device it looks to be a Toyota car remote control. It is not necessary to know if it can be used to drive a Toyota vehicle as well. It was described as being a remote control to a Toyota in the police’s questions and the respondent’s answers did not deny it.

13. The submission was made for Mr Fawcett that the evidence does not demonstrate that the implement was in working order. Mr Hemsley submitted that in cases such as R v Pierpoint (14 December 1993 unreported) that was not an issue because housebreaking implements like bolt cutters are obviously capable of being used, but that in the case of something with electronics it is an essential element of the offence that it be shown that the item was in fact capable of effective use.

14. The section provides as follows:

(1)    Any person who:

…

(b) has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance,

…

shall be liable to imprisonment for seven years.

15. A broad view of the section is that a key or remote apparently suitable for only one vehicle would fit the description ‘implement capable of being used to enter… a conveyance”

16. A narrower view is that it must be a generic implement of some kind, such as a universal type key, or something able to be used to break into cars.

17. The only authority which I could find in which a key has been held to be an implement for the purposes of this section is Crown v Palmer [2005] NSWCCA 349 in which a “jiggle” key was found in the ignition. It had been part filed off so that it could manipulate doors or ignitions in motor vehicles generally. That was a sentence appeal and there is no discussion of the meaning of the words implement or capable.

18. I think the section is ambiguous in that it is not clear whether it is intended to cover a key or remote suitable for only one vehicle or whether it must be something capable of use in cars other than a single one for which it is specifically cut or programmed. Where there is ambiguity, one must approach legislation to give effect to its evident purpose. If that fails to resolve the meaning, resort can be had to the principle that penal statutes should be construed in favour of the defendant (R v Adams (1935) 53 CLR 563 at [567]-[8]).

19. To construe the legislation to apply only to implements suitable for accessing cars other than a single car for which the remote may be specifically programmed would bring it into line with the first part of s 114(1)(b)(“any implement of housebreaking or safebreaking”) which is aimed at implements used to access houses generally, and not at possession of the proper key to a single house. That conforms to the principle “noscitur a sociis” – the meaning of words is to be derived from their context. It would be a strange result if within one subparagraph of the Act the legislation referred to housebreaking implements (which would exclude keys designed to access one particular house) but used implements in relation to accessing cars to include keys or remotes designed to access only one particular vehicle.

20. Thus in this context I construe implement to mean an implement capable of accessing cars other than the one particular car for which it was designed or programmed. I do that by seeking to construe the legislation to ascertain its intention, but in the alternative that in the event of unresolvable ambiguity, being penal, it should be construed in favour of the narrower meaning, i.e. in favour of the subject.

21. There is a second argument as to why the charge should be dismissed, namely that the prosecution has not proven the capacity of the remote to have accessed any vehicle.

22. To prove a single vehicle device was “capable of being used to enter... a conveyance” it would need to be shown the device was a real working one, and was actually programmed or connected such that it could actually have been used to enter a particular conveyance. There was no evidence the device was real, was programmed to a particular vehicle, and was in working order. Expert evidence may have been able to prove those matters, but that was not attempted.

23. For example the device may have been fake or a toy, been empty of working components, had missing or broken parts, not contained a battery or other necessary part, or been a remote to a scrapped vehicle or one since reprogrammed. Some of these may be unlikely but every element of a criminal charge must be proved beyond reasonable doubt

24. For that reason I find that it was not shown that the device was in fact “capable” of accessing even 1 vehicle.

25. I will dismiss the charge.

**********

Amendments

26 November 2021 - coversheet - corrected representation

Decision last updated: 26 November 2021