Police v Diamandopoulos No. Scgrg-98-1262 Judgment No. S6978

[1998] SASC 6978

POLICE v DIAMANDOPOULOS

[1998] SASC 6978

Magistrates Appeals

1 WICKS J The defendant, Angelo Diamandopoulos, was charged with between the 20th day of August 1997 and the 16th day of October 1997 stealing a mobile telephone of the value of $399, the property of Jillian Catherine White, contrary to s131 of the Criminal Law Consolidation Act 1935.
2 The defendant pleaded not guilty to the charge and a trial on the matter proceeded in the Magistrates Court, Adelaide.  At the conclusion of the trial, the learned Magistrate dismissed the charge.  The defendant sought an order for costs but this order was refused. 
3 Both the complainant and the defendant appealed to this Court against the decision of the learned Magistrate.
4 The grounds of appeal relied upon by the complainant were as follows:

1. The Learned Magistrate erred in that he mis-directed himself as to the law regarding the contemporaneous existence of the mens rea and the actus rea in cases of simple larceny.

1. The acquittal was against the weight of the evidence."

5 Before the hearing of the appeal, the complainant formally abandoned the first ground of the appeal.  Also, the defendant cross-appealed to this Court on the ground that the learned Magistrate erred in not awarding costs to the appellant upon the dismissal of the complaint.  In its Outline of Submissions, the complainant conceded the defendant’s appeal against the refusal of an order for costs.
6 The defendant was a licensed taxi driver who drove a taxi owned by his father.  The taxi was one operated through Suburban Taxis.  The defendant, his father and his brother each at all material times held a taxi cab licence.
7 On 20 August 1997 at about 8.30 pm Mrs Jillian White was picked up by the defendant at the Arab Steed Hotel in Hutt Street, Adelaide with a view to travelling to her home in Fullarton.  After some distance, Mrs White asked the defendant to return to the hotel where she picked up her son to take him home.
8 While she was in the taxi, Mrs White was in possession of a mobile telephone.  She used the instrument a number of times and the defendant was aware of that fact.  The defendant delivered Mrs White and her son to her home in Fisher Street, Fullarton and it appears that on alighting from the cab Mrs White left her mobile telephone behind.
9 The defendant was unaware of the phone in his cab until another customer handed it to him that evening on alighting from the vehicle.  He said that his intention regarding the phone was "just to hold on to it" and "if anyone rang for it, to hand it back".  There was not a call that night because Mrs White did not become aware until later that she had mislaid the phone.  At the end of his shift, the defendant took the phone into his house and took it out again on the next shift in case someone rang for it.  He continued this practice for two days or so and thereafter left the phone in his room at his house.
10 The phone appears to have been left on in the taxi and continued to be left on by the defendant.  Once switched to the "off" position the phone could not be switched "on" without first keying in a PIN.
11 Mrs White discovered the telephone missing on the morning of 21 August 1997.  She made numerous calls to the phone but it was not answered.  She rang at approximately 9.30 pm on Friday 22 August 1997 and found the phone to be engaged.  She then arranged for Telstra to disconnect it from its network.
12 On 22 August, the defendant made four calls from the mobile phone.  The numbers concerned and other information in relation to the calls are listed on an invoice rendered by Telstra to Mrs White in respect of the mobile phone and which was admitted in evidence.
13 The defendant kept the telephone until 16 October 1997 when he handed it to police. 
14 Mr Shayne White, Mrs White’s husband, telephoned Mr Ron White, an executive of Suburban Taxis, regarding the possibility of the phone being left in the back of one of its cabs.  Mr Ron White undertook to look into the matter.  He arranged for inquiries to be made in respect of the Suburban Taxis computer and was supplied with details relating to the journey in question, including the defendant’s name.  He said "I phoned Mr Diamandopoulos and asked him if he knew the whereabouts of a mobile phone within his cab.  He gave me the presumption that he knew nothing of the phone".
15 When asked about this conversation, the defendant denied that it had ever taken place.  He said that his father and brother were also licensed cab drivers and that Mr Ron White could have spoken to one of them.
16 He said that if either his father or brother had been telephoned about the mobile phone, he would have discussed the matter with the defendant.  The defendant’s home number is silent and only one person at Suburban Taxis is aware of it.
17 Mr Shayne White rang the numbers shown on the bill received from Telstra as having been made with the mobile phone on 22 August 1997.  On one such call, he spoke to Mr Ian Inglis who identified the caller as the defendant.  One of the numbers did not answer.  In one of the others, the person on the end of the line said he was unable to help.  The fourth number was answered by one "George" who admitted to knowing "Angelo the cabby".
18 On 15 October 1997, Constable Butler went to the defendant’s home and asked him to come to the Unley Police Station regarding the phone.  The defendant called at the station the next day.  He took the phone with him, together with $10 for compensation in respect of the calls made on 22 August.  A transcript of Constable Butler’s interview of the defendant on that occasion was admitted in evidence.
19 During the interview Constable Butler asked the defendant what he had intended to do with the phone.  He replied: "Just hold on to it until they rang.  If they didn’t call within a month I was going to take it to the PTB (Passenger Transit Board)".  He, in fact, retained custody of it for almost two months and then handed it in to the police only after they had sought an interview with him in relation to the phone.
20 The learned Magistrate said that he had heard each of the witnesses for the prosecution and fully accepted his or her evidence.  That evidence (with the exception of that of Mr Ron White) was not disputed by the defendant.  The evidence of Mr Ron White was at variance with that of the defendant on one point only and that was whether they had had a telephone conversation on the subject of the missing phone.  Mr White said that they did.  The defendant said that no such telephone conversation took place.  In evidence he suggested that Mr White was either mistaken or lying.  Mr White denied that he lied and the learned Magistrate believed him on the point.  It was not suggested to Mr White at any stage that he might have spoken to the defendant’s father or brother rather than the defendant.
21 The learned Magistrate continued:
"                 Bearing all that evidence in mind and bearing in mind the circumstances of the defendant keeping the phone until requested by a police officer to hand it over, there was a strong inference that the defendant took possession of the phone and subsequently trespassed upon that phone.  He used the phone for his own purposes that trespass being a continuing trespass and subsequently put it in his home.

It was not the defendant who suggested handing it in.  It was therefore a strong inference that he intended permanently depriving the owner thereof."

22 As to the disputed conversation with Mr Ron White, the learned Magistrate chose to believe Mr White’s version of events.  He said where his [the defendant’s] evidence differs from that of Mr White, he rejected the defendant’s evidence and accepted Mr White’s evidence.
23 After making these findings as to the witnesses the learned Magistrate reached a conclusion favourable to the defendant.  He said: "Having heard him give his evidence and having seen him in the witness box, I am not persuaded that it was his intention to permanently keep this phone".  He continued:
"                 Notwithstanding the strong evidence against him and his actions there is a possibility that what he said is true.  I am not therefore in a position to say that the prosecution have shifted the heavy onus placed upon them."

24 On this appeal I must give judgment which I consider ought to have been given at first instance: Dearman v Dearman (1909) 7 CLR 549 at p561. The appeal court must undertake the task of weighing the evidence and drawing inferences of fact. It must, however, be guided by the findings of the learned Magistrate as to the credibility of witnesses: Donaldson v Freeson (1934) 51 CLR 598 at p609, Warren v Coombes (1979) 142 CLR 531. In this matter I must decide whether, on the whole of the evidence, it was open to the learned Magistrate to acquit the defendant of larceny.
25 Larceny at common law was recently defined in Ilich v The Queen (1987) 162 CLR 110. In a joint judgment, Wilson and Dawson JJ said at p123:
"At common law, larceny is committed by a person who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof ... What we wish to draw attention to is the fact that at common law larceny involves the taking of something without the consent of the owner who may, for this purpose, include the person in possession of the thing.  For this reason it is said that there is no larceny if the circumstances would not sustain an action for trespass ...

Because larceny at common law requires a trespass - it is sometimes described as an offence against possession - a person lawfully in possession of something cannot be guilty of larceny of it."

26 The first question is who has possession of the mobile at all material times. In Hayes v Fries (1988) 49 SASR 184 a taxi driver was unaware that a previous passenger had left some belongings in the taxi and handed them to the defendant assuming they were his when he alighted from the vehicle. Matheson J held in those circumstances that legal possession of the belongings concerned never left the owner and that nothing the taxi driver said or did altered the legal situation.
27 In my opinion Mrs White remained at all material times in possession of the phone.  The defendant did not have possession of it.
28 The next question is that there must be a "taking" and at the same time there must be an intent to deprive the owner permanently of the thing taken. An exception to this general rule lies in the application of the decision in R v Riley (1853) Dears 149 (169 ER 674). In that case a man driving a flock of sheep from a paddock, drove with the flock, a sheep belonging to another person, without knowing that he did so, and afterwards, when he discovered the fact, sold the sheep, denied having done so and appropriated the proceeds to his own use. It was held that he was rightly convicted of larceny. Having in the first instance driven away the sheep, the property of another, he committed a trespass which as soon as he resolved to dispose of the animal (the trespass continuing all along) became a felonious trespass. There was therefore a taking with intent at the time of the taking. That essential ingredient of the crime of larceny was therefore present.
29 In R v Potisk (1973) 6 SASR 389, Bray CJ observed at p393, that the ratio of Riley’s case (supra) was:
"... that if the accused acquired possession by trespass, even though without any felonious intention, and subsequently formed that intention and appropriated the thing, he was guilty of larceny."

30 In the present case, the defendant did not at any time acquire possession of the telephone in a technical sense.  He certainly did not acquire possession of it by the commission of an act amounting to a trespass at common law.  The phone was left in the taxi.  While left, there was no taking by the defendant which constituted a trespass and there was no larceny.  The defendant retained the phone in the taxi for a period of time while he was working on shift in case someone should ring.  He took it with him to his room after he had completed his work for the day.
31 The defendant committed a trespass in relation to the phone by using it to make four telephone calls.  Once the four calls were made they were over and done with.  They cannot be regarded as providing a continuing trespass of the kind referred to in R v Riley (supra).  The trespass in Riley’s case was continuing in the sense that a sheep belonging to another was driven away with the flock of the accused.  Where, at a later stage, the accused sold the flock with the knowledge that the one sheep in question belonged to another, the taking and the intent to deprive the owner permanently coincided so that the elements of the offence were complete.
32 In R v Preston (1851) 2 Den 352 (169 ER 535), it was held that a taking must amount to an act. Lord Campbell CJ said:
"It is supposed to be a thought which passed through the prisoner’s own mind; but I do not think that can amount to a taking, when nothing was in fact done, and when, it may be, the prisoner was lying in bed at a distance from the article.  There is no taking animo furandi in this case; consequently, there is no larceny ..."

33 The mere placing of the mobile telephone on the cupboard in the bedroom in circumstances where the defendant already had custody of the instrument would not amount to a taking.  The act must amount to a trespass.  That cannot be the position here bearing in mind that the instrument has been in the defendant’s custody for some time.  The act of putting it down on a cupboard could not amount to a taking in the circumstances.  It would, however, have been different if the defendant had disposed of the mobile phone or had purported to sell it.  There would then be a taking with intent.
34 In Ruse v Read (1949) 1 KB 377 it was held that where a person has wrongfully, though not feloniously, taken possession of property belonging to another and at a later time determines to deprive the owner permanently of his property, he is guilty of larceny. This case is to be distinguished from the present case on the ground that in the present case there was no act of taking. There was no trespass. See also, R v Kindon (1957) 41 Cr App R 208 and R v O’Brien (1921) 21 SR (NSW) 136 which can be distinguished on the same basis.
35 In my opinion it was open to the learned Magistrate to find that the defendant was not guilty of larceny in respect of Mrs White’s mobile phone.  The appeal will be dismissed.
36 I will hear the parties as to costs.  In the light of these reasons, I will also hear the parties further on the question of the cross appeal.