Peter Martiniello v The Queen

[2006] ACTCA 28

PETER MARTINIELLO v THE QUEEN [2006] ACTCA 28 (30 October 2006)

CRIMINAL LAW - indictment alleging theft of choses in action in sums of money belonging to credit union – relevant sums withdrawn from money standing to appellant’s credit in credit card account - whether alleged choses in action existed - whether withdrawals constituted thefts of such choses in action.

Crimes Act 1900 (ACT), ss 93, 95, 96(1)

Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80
Chan Man-sin v Attorney-General of Hong Kong [1988] 1 WLR 196
R v Capewell [1995] 2 Qd R 2 64

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 19 - 2006
No. SCC 144 of 2003

Judges:         Crispin P, Gray & Lander JJ
Court of Appeal of the Australian Capital Territory
Date:            30 October 2006

IN THE SUPREME COURT OF THE       )          No. ACTCA 19 - 2006
  )          No. SCC 144 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER MARTINIELLO

Appellant

AND:THE QUEEN

Respondent

REASONS FOR JUDGMENT

Judges:  Crispin P, Gray & Lander JJ
Date:  30 October 2006
Place:  Canberra

IN THE SUPREME COURT OF THE       )          No. ACTCA 19 - 2006
  )          No. SCC 144 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER MARTINIELLO

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Gray & Lander JJ
Date:  30 October 2006
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. On 30 October 2006 we heard an appeal against the appellant’s conviction on forty-three counts of stealing choses in action in various sums allegedly belonging to Credit Union Services (Australia) Limited (“Cuscal”) on various dates between 2 July 2000 and 3 July 2001.  After hearing argument directed to the form of the charges, we ordered that the appeal be upheld, that all convictions be set aside, and that, in lieu thereof, verdicts of acquittal be entered.

1. We now provide our reasons for those orders.

1. The relevant circumstances can be briefly explained.  Cuscal had provided the appellant with a credit card referred to as “Mycard”.  There was an agreement between Cuscal and Australia Post pursuant to which Mycard holders could use the Australia Post Bill Pay system (“Bill Pay”) to effectively transfer funds from their bank accounts to their credit card accounts.  Upon a cardholder contacting Bill Pay to make the necessary arrangement, Australia Post would remit the amount in question to Cuscal by electronic transfer and seek recoupment from the nominated bank account pursuant to an agreement with the relevant bank.  The agreement between Australia Post and Cuscal provided for the reversal of any transfer of funds in the event that a cardholder’s bank subsequently indicated that there were insufficient funds in the nominated account to permit the intended recoupment.…