Parsons v The Queen (M42-1998) [1999] HCA 1 9 February 1999
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Victoria
Representation:
G D Wendler with R T A Waddell for the appellant (instructed by Allan McMonnies)
P A Coghlan QC with R A Elston for the respondent (instructed by Solicitor for Public Prosecutions (Victoria))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Roumald Charles Parsons v The Queen
Criminal law – Dishonestly obtaining property belonging to another by deception – Whether cheque is property belonging to another – Whether bank cheque is property belonging to another.
Criminal law – Dishonestly obtaining property belonging to another by deception with intention of permanent deprivation of property – Whether person capable of intending to permanently deprive another of cheque.
GLEESON CJ, GAUDRON, McHUGH, GUMMOW AND HAYNE JJ. On 7 May 1997, the appellant pleaded guilty in the Melbourne County Court to five counts of dishonestly obtaining property by deception contrary to s 81(1) of the Crimes Act 1958 (Vic) ("the Crimes Act"). The offences were committed in the period between May and September 1994.
Notwithstanding his pleas of guilty, the appellant applied to the Victorian Court of Appeal for leave to appeal against his conviction. He contended that in all the circumstances there had been a miscarriage of justice within the meaning of s 568(1) of the Crimes Act because, on the admitted facts before the County Court, he could not in law have been convicted of the offences charged[1]. The Court of Appeal (Winneke ACJ, Tadgell and Ormiston JJA)[2] held that in law the appellant could have been convicted and dismissed the application. From that dismissal this appeal is brought by special leave.
[2]R v Parsons [1998] 2 VR 478; (1997) 97 A Crim R 267.
The facts and submissions
At all material times the appellant was employed by Canyon Bay Pty Ltd ("Canyon Bay") as its "national co‑ordinator". The company was engaged in the sale and distribution of imported pens, primarily within Victoria and generally to authorised newsagents in the Melbourne metropolitan area. However, the offences arose from representations by the appellant that Canyon Bay would procure for each of certain newsagents substantial quantities of cheap copy paper from a supplier in South East Asia.
The directors and shareholders of Canyon Bay left the running of the business to the appellant. However, between August 1991 and August 1994, the appellant was an undischarged bankrupt and as such could not be a signatory to the company's bank account. The current account…
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.
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AGLC
Parsons v The Queen [1999] HCA 1
Case
[1999] HCA 1
Decision Date
CaseChat Overview and Summary
The appeal concerned Roumald Charles Parsons and The Queen, with the appellant seeking to appeal his conviction for dishonestly obtaining property by deception. The appellant had pleaded guilty to the charges but contended that, based on the admitted facts, he could not have been lawfully convicted. The Victorian Court of Appeal had previously dismissed his application for leave to appeal, and this appeal was brought before the High Court of Australia by special leave.
The central legal issues before the High Court were whether a cheque constitutes "property belonging to another" for the purposes of the offence of obtaining property by deception, and whether a person can possess the requisite intention to permanently deprive another of a cheque. The appellant's argument hinged on the nature of a cheque, particularly bank cheques, and whether it could be considered property in the context of the criminal charges.
The High Court, in dismissing the appeal, reasoned that a cheque, even a bank cheque, is a form of valuable security and thus constitutes property. The court adopted the reasoning of the Victorian Court of Appeal, which held that once a cheque is used and presented to the bank, it ceases to be a valuable security and becomes a record of a transaction. Applying this to the relevant section of the Crimes Act, the court concluded that the intention to permanently deprive the victim of the cheque could be established by putting the cheque to a use that would render it spent and devoid of its essential characteristics as property.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Notwithstanding his pleas of guilty, the appellant applied to the Victorian Court of Appeal for leave to appeal against his conviction. He contended that in all the circumstances there had been a miscarriage of justice within the meaning of s 568(1) of the Crimes Act because, on the admitted facts before the County Court, he could not in law have been convicted of the offences charged[1]. The Court of Appeal (Winneke ACJ, Tadgell and Ormiston JJA)[2] held that in law the appellant could have been convicted and dismissed the application. From that dismissal this appeal is brought by special leave.[1]See R v Tait [1996] 1 VR 662 at 665‑666.[2]R v Parsons [1998] 2 VR 478; (1997) 97 A Crim R 267.The facts and submissions At all material times the appellant was employed by Canyon Bay Pty Ltd ("Canyon Bay") as its "national co‑ordinator". The company was engaged in the sale and distribution of imported pens, primarily within Victoria and generally to authorised newsagents in the Melbourne metropolitan area. However, the offences arose from representations by the appellant that Canyon Bay would procure for each of certain newsagents substantial quantities of cheap copy paper from a supplier in South East Asia. The directors and shareholders of Canyon Bay left the running of the business to the appellant. However, between August 1991 and August 1994, the appellant was an undischarged bankrupt and as such could not be a signatory to the company's bank account. The current account of the company was conducted at the Braeside Branch of the Australia and New Zealand Bank Limited ("the ANZ Bank"). The sole signatory was Mr Carl Nessel, one of the directors and principal shareholders of the company. It appears that at the appellant's request, Mr Nessel adopted a practice of signing blank cheques to be completed by the appellant. The appellant represented to the newsagents that he had arranged contracts for the supply of the low priced copy paper to purchasers and that, if the newsagents placed orders for the copy paper, they could take over the benefit of those contracts. These representations were false. However, by means of them, the appellant persuaded the newsagents to make substantial prepayments to Canyon Bay for purchases of the copy paper which the newsagents expected to resell at a profit. The appellant obtained cheques totalling over $160,000 from five Victorian newsagents and they were paid into the account of Canyon Bay with the ANZ Bank. The representations had been that these funds would be used by Canyon Bay to procure the required copy paper. In fact, no orders for copy paper were made, no supplies of copy paper in commercial quantities were imported and the funds were dissipated. The proceeds of some of the cheques obtained from the newsagents were used to pay legitimate business expenses of Canyon Bay. Many of the Canyon Bay cheques which Mr Nessel had signed in blank were drawn for cash and endorsed for payment in the handwriting of the appellant.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, GUMMOW AND HAYNE JJ
Further, as Tadgell JA pointed out in the Court of Appeal[59]:"The slip of paper that is returned to the drawer's bank has ceased to be a valuable security. Rather, it has become a record of what the valuable security was."Applying this reasoning to the terms of s 81(1) of the Crimes Act, and their application to the instruments with which this case is concerned, the intention spoken of in that provision is one of permanently depriving "the other", namely the newsagents, of those instruments by putting them to a use which will leave them spent and deprived of those characteristics which led or significantly contributed to their classification as property[60].[59][1998] 2 VR 478 at 491; (1997) 97 A Crim R 267 at 281.[60]cf J C Smith, "Obtaining Cheques by Deception or Theft", (1997) Criminal Law Review 396 at 403‑405.Conclusion The appeal should be dismissed.