Parsons v The Queen

[1998] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M99 of 1997

B e t w e e n -

ROUMALD CHARLES PARSONS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 19 MAY 1998, AT 10.20 AM

Copyright in the High Court of Australia

MR G.D. WENDLER:   If the Court pleases, I appear for the applicant. (instructed by Allan McMonnies)

MR P.A. COGHLAN, QC:   If it please the Court, I appear with my learned friend, MR R.A. ELSTON, for the respondent.  (instructed by P. Wood, Solicitor for Public Prosecutions (Victoria))

GAUDRON J:   Mr Wendler, the Court feels it might be assisted if it heard from the respondent in this matter.

MR WENDLER:   Yes, if the Court pleases.

MR COGHLAN:  If it please the Court.  The issue which was sought to be agitated as giving rise to the question of special leave is the apparent conflict which would appear between the Court of Appeal in Victoria and the House of Lords.

GAUDRON J:   And the practice in other States, I believe.

MR COGHLAN:   It will depend, your Honour, on what the relevant legislation is in.

GAUDRON J:   Well, for example, in New South Wales, the practice is in circumstance such as these, to charge obtaining financial advantage by deception and not to charge obtaining property by deception and I think that is also the practice also in - well I know it is in New South Wales.

MR COGHLAN:   It is said that the question of practice as submitted is of little consequence if the practice observed in Victoria is a proper and legitimate practice and that - - -

GAUDRON J:   Well, if the decision is incorrect, the practice will rapidly develop elsewhere, following what has been done in Victoria.

MR COGHLAN:   Yes.

GAUDRON J:   So you really have to address the correctness of this decision, do you not?

MR COGHLAN:   Certainly, we do, your Honour, and it is on that basis that we say that leave should - - -

GAUDRON J:   You must accept in a case such as this, surely, that if it is arguably incorrect that leave should be granted, to have the matter clarified, have the matter determined.

MR COGHLAN:   And it is in that context that the question of practice is important and that so much is conceded, your Honour.

It is submitted, however, that the analysis of the Court of Appeal, particularly the analysis by the learned President, is an appropriate analysis of the comparison between the competing positions.  The position in Preddy’s Case was that the court was not compelled by the questions asked in that case to decide the question.

GUMMOW J:   Can you explain to me, just reading it off section 81, the Victorian Act, how the Court of Criminal Appeal’s construction works in relation to facts?

MR COGHLAN:   Yes, your Honour.  Pursuant to section 81, and the most convenient way of going to the relevant part of section 81 is in the judgment of the Court of Appeal at - - -

GUMMOW J:   No, you just explain to me how it works off the section, without any glosses anyone has put on it, just how the words work?

MR COGHLAN:   Yes.  Your Honour, take the “deception” and “dishonestly” as being made out in the circumstances of the case; moving on to “obtains property belonging to another” - - -

GUMMOW J:   Now what is that?

MR COGHLAN:   On the simple characterisation that a cheque is a valuable security, that it is that valuable security which is obtained from the person who hands over the cheque.

GAUDRON J:   Yes, but - - -

MR COGHLAN:...“with the intent of permanently depriving” - -

GAUDRON J:   You cannot gloss over it so easily.  There immediately arise two questions:  one is whether you can read “valuable security” that way, but the next is “with the intention of permanently depriving” the person of the bit of paper, the valuable security.  That is not what was in issue here.  It was the intention of depriving them of the money.

MR COGHLAN:   Yes, and that was the effect of depriving them of the valuable security.  Having deprived them of the valuable security, having obtained the money - - -

GAUDRON J:   That is the cheque, which they can get back once it is paid if they wish?

MR COGHLAN:   Yes, as a valueless thing; its value as a valuable security, having been taken away.

GAUDRON J:   So you read section 81(1) to be talking about two different things really?

MR COGHLAN:   Well a number of different things, your Honour.

GAUDRON J:   And when the Theft Act was passed in the United Kingdom, there was already authority to the effect that a cheque was not a valuable security, was there not?

MR COGHLAN:   Well, depending on what view was to be taken of Danger’s Case.  I commend the Court in the later analysis of Professor Smith’s in relation to Danger’s Case, in relation to which a number of courts have cast severe doubt upon the analysis of Danger’s Case and the analysis, in particular, that was relied upon by the House of Lords.

GUMMOW J:   You are not talking about, in section 81(1), the property as the chattel?  You are talking about leaching out of it its value, which arises from other characteristics..

MR COGHLAN:   Yes, because it is a valuable security, your Honour, yes.

GUMMOW J:   That seems to be the fundamental problem.

MR COGHLAN:   Well, except as a matter of - and one is cautious about using expressions such as “commercial reality”, but there is a way in which - - -

GUMMOW J:   I am not talking about commercial reality.  I understand the commercial reality.  That has been sorted out since the time of Lord Mansfield.  This is a criminal statute.

MR COGHLAN:   Yes, and a criminal statute under which the construction of a cheque, as a valuable security, is perfectly consistent with it being regarded as property for the purposes of the section.

GAUDRON J:   Well, with the intention of permanently depriving the other of it.

GUMMOW J:   What is the “it”?

MR COGHLAN:   Of its characterisation as a valuable security.  To reduce it from something of value to something that has no value, and that is what is taken away.

GUMMOW J:   You may ultimately be right, but there does seem to me to be a difficult question involved in it.

MR COGHLAN:   I must say I have said of this point it will be a matter of how it strikes the Court.  There is a basis on which it can - - -

GUMMOW J:   It is not a question of first impression; it is a question of refined analysis.

GAUDRON J:   And analysis in the context of other provisions that derive from the Theft Act which deal with, for example, obtaining financial advantages by deception.

MR COGHLAN:   It is, however, though, interesting - well, depending; it may or may not support the argument that it be contended on behalf of the respondent, but in England in relation to the amendments that have been made to the Theft Act, it is really only the first part of what is contained in Preddy’s Case that has been addressed.  Whether that means that it is intended by the legislature that it should be addressed as a question of financial advantage or whether it should be addressed, for instance, as the execution of a valuable security by deception is still open.

GAUDRON J:   You have got a provision relating to the execution of a valuable security?

MR COGHLAN:   We do, in the later provisions of the Theft Act.

GAUDRON J:   Was that in there originally or that is a subsequent - - -

MR COGHLAN:   Yes, it has always been one of the original - - -

GAUDRON J:   In the Victorian Act and in the United Kingdom Act?

MR COGHLAN:   In both Acts, as I understand it, your Honour.  The position in Victoria was that with very little modification the Theft Act had been adopted.  The position from the respondent is that I cannot seek to improve on the argument as it was set out by the Court of Appeal and, for my own purposes, as is supported by Professor Smith, and it is submitted it is capable of analysis to demonstrate that the House of Lords, at the time the decision was made, did not have before it all the relevant authorities on the point and did take a mistaken view of Danger’s Case. 

It is submitted, as it related to the facts of a situation, such as Danger, is perfectly correct, but it is open to say, without any offence to language or as a matter of statutory construction, that when dealing with property, departing from the concept of chose in action, which has always created problems in relation to cheques, but dealing with property, there is no reason why, with the characterisation of a cheque as a valuable security, in the way it was so characterised by the Court of Appeal, that there is anything inherently wrong with the way it fits into section 81.  True to say, your Honour, and if it need to be made by way of concession, there are other sections in the Act that would be applicable.

GAUDRON J:   You accept that that also goes to the construction of it?  It must.

MR COGHLAN:   It must, your Honour, yes.

GAUDRON J:   And that does not seem to have been addressed by the Court of Appeal?

MR COGHLAN:   Well, not in the sense of the construction of section 81.

GUMMOW J:   That is right, because a lot of the construction of the Court of Criminal Appeal is along the lines if “This has got to be right or otherwise there is a gap”.  That may be over simplifying it, but that is the flavour one gets of it.

MR COGHLAN:   Except to say, your Honour, the court was aware- - -

GUMMOW J:   But it is an invocation of realities and so on.

MR COGHLAN: - - - when considering the question of leave, of the question of other appropriate offences, and the President in the early part of his judgment did do an analysis of that, because the question arose when, in the peculiar circumstances of a plea of guilty, leave was sought to appeal against conviction, whether or not the question of the availability of another section, under which the applicant might be convicted, was addressed, so the court was alive to the proposition that there were other sections. 

I have had a chance to look at a number of the more recent English authorities, which do not help directly on the point.  They have been dealt with, it seems, in three different ways.  Leave has been refused in a large number of cases, because the cases are simply too old; leave has been granted in some cases, acting on the mere words of Preddy, without there being any analysis, and then the third category, and it is now open to doubt as to whether it is correct or not, convictions for other offences had been substituted.  So they are the ways in which it appears that it has been dealt with in England.  No I have not sent the authorities to the Court because they are mere examples, really.

GUMMOW J:   Was the UK Theft Act adopted in New Zealand in any form?

MR COGHLAN:   I am sorry, I do not know, your Honour, but I would be surprised if it had not.

GUMMOW J:   Yes.  That perhaps could be looked at.

MR COGHLAN:   I do not think I can assist the Court further in relation to those matters.

GAUDRON J:   Yes, thank you, Mr Coghlan.  There will be a grant of special leave in this matter.

AT 10.33 AM THE MATTER WAS CONCLUDED