Police v Rowland (a pseudonym); Police v Nowell (a pseudonym)

CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Police v Rowland (a pseudonym); Police v Nowell (a pseudonym)
Citation:	[2024] ACTCC 4
Hearing Dates:	13 March 2024 – 15 March 2024
Decision Date:	26 April 2024
Before:	Magistrate Temby
Decision:	See [125] – [132]
Catchwords:	CRIMINAL LAW – Judgment – young offenders – ride motor vehicle without consent – theft – robbery – joint commission – the meaning of ‘intention to permanently deprive’
Legislation Cited:	Criminal Code 2002 (ACT), ss 45A, 306, 308, 309, 310, 318 Theft Act 1968 (UK), ss 6, 12 Criminal Law Consolidation Act 1935 (SA), ss 134, 86A
Cases Cited:	Meissner v R [1995] HCA 41 R v Dalton [2020] QCA 13 R v Mazaydeh (No 1) [2014] ACTSC 279 R v Dardovska [2003] VSCA 4 Reg v Lloyd [1985] 1 QB 829 R v Fernandez [1996] 1 Cr App Rep 175 R v Mitchell [2008] EWCA Crim 850 McGuiness v Police [2016] SASC 133 R v Wilson [2014] SADC 177
Parties:	Chris Raymond Hotchkis (Informant) Kara Rowland (a pseudonym) (Defendant) Kathie Nowell (a pseudonym) (Defendant)
Representation:	Solicitors Commonwealth Director of Public Prosecutions Zachary McBride (Defendant) Paul Edmonds (Defendant)
File Numbers:	CH 1076/2023 CH 1499/2023 CH 1500/2023 CH 1501/2023 CH 1072/2023 CH 1502/2023 CH 1503/2023 CH 1503/2024

MAGISTRATE TEMBY:

Introduction

1․The Young People, Kara Rowland and Kathie Nowell, are charged with several offences arising from an incident on the rooftop of the Canberra Centre car park, in which a car was forcibly taken from its owner by Mr Lachlan Smith. Mr Smith drove the car out the car park, collecting the Young People along the way.
2․In separate proceedings, Mr Smith pleaded guilty to an offence of aggravated robbery for his role in the incident, however the Young People have pleaded not guilty to the charges brought against them. Each of the Young People are charged with:
(a)riding in a motor vehicle without consent, contrary to s 318(2) of the Criminal Code 2002;
(b)joint commission aggravated robbery, contrary to s 310 of the Criminal Code 2002 (relying on s 45A of the Criminal Code 2002); and
(c)two back-up offences, being:
1․ joint commission robbery, contrary to s 309 of the Criminal Code 2002 (relying on s 45A); and
2․ joint commission theft, contrary to s 308 of the Criminal Code 2002 (relying on s 45A).

3․The maximum penalties for all of the offences with which the Young People are charged exceed the summary jurisdiction of the Magistrates Court, however the Young People gave their consent to the charges being determined summarily.

Principles and directions

4․There are some preliminary matters which I must first address. The prosecution of course bears the onus of proving the guilt of the Young People. The Young People do not have to prove that they did not commit the offences with which they were charged. The standard of proof the prosecution must meet is proof beyond reasonable doubt and the Young People cannot be found guilty unless the evidence which I accept satisfies me beyond reasonable doubt of their guilt. If I am satisfied that there may be an explanation consistent with the innocence of the Young People, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law.
5․The burden of proof on the Prosecution does not mean that the Prosecution must prove every fact in dispute beyond reasonable doubt, only that it must prove the elements of the charge beyond reasonable doubt.
6․Mr Smith was the only person to give evidence at the hearing. I must determine whether he is a reliable witness. That is, whether I can rely on the evidence that Mr Smith gave and so find the facts about which Mr Smith has given evidence as proved. I can accept part of Mr Smiths evidence and reject part of that evidence or accept or reject it all. The law does not require me to give all evidence the same weight.
7․I must determine the facts in accordance with the evidence, considering it logically and rationally, without acting capriciously or irrationally. I must not let emotion enter into the decision-making process. I must bring an open and unbiased mind to the evidence but I may use my common sense and experience in assessing the evidence. Both the prosecution and Young People are entitled to my verdict free of partiality, prejudice, favour or ill-will.
8․I may draw reasonable inferences from the facts that I find are established. I must consider any possible inference to ensure that it is a justifiable inference, and I must not draw an inference from the direct evidence unless it is a rational inference in all the circumstances. It is permissible for the court to rely on an inference, of which the court is satisfied should be drawn beyond reasonable doubt, as proof of an element of an offence.
9․I must deliver my decision according to the evidence.
10․A Magistrate may apply common sense and life experience in assessing evidence and making findings. Finders of fact need to decide how humans are likely to have behaved and it is appropriate for the finder of fact to have regard to what they perceived to be the apparent logic of events.
11․The Young People did not give evidence during the hearing. No inference, adverse to them, can be drawn from their decision to exercise their right to silence. Nor can the absence of evidence from the defendant be used to fill in any gaps or used as a makeweight for any deficiency in the prosecution case.
12․I note that the hearing proceeding by way of joint trial of the Young People. I must consider the case against each of the Young People separately when considering my verdicts. I will return a separate verdict in respect of each of the Young People. There is nothing in law, or for that matter as a matter of logic, which requires me to return the same verdict in respect of each young person. I will not determine whether the Young People are guilty without considering them as individuals and giving each separate consideration. I must not take into account, in deciding whether the prosecution has proved its case against one young person, evidence that was tendered only against the other young person.
13․As this was a case relying on circumstantial evidence, I remind myself that such a case may be just as convincing and reliable as a case based on direct evidence, but it will depend on whether all of the evidence leads to an unavoidable conclusion that the prosecution has established the guilt of the Young People.
14․I must approach a circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. I must not consider any particular fact in isolation and whether that fact proves the Young People’s guilt, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the Young People’s guilt.
15․The correct approach is, first, to determine what facts I find established by the evidence. Any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt. I must then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that the Young People are guilty of the offence charged. I cannot be so satisfied on circumstantial evidence unless no other explanation than guilt is reasonably, or rationally, compatible with the circumstances.
16․In this respect I note that, for an explanation or inference to be reasonable, it must rest on something more than mere conjecture. The bare possibility of innocence should not prevent me, as the trier of fact, from finding the Young People guilty if the inference of guilt is the only inference open to a reasonable person following consideration of all the facts in evidence.
17․Each of the charges against the Young People must be considered separately. If I am not satisfied beyond reasonable doubt in relation to one of the charges, I must consider what effect, if any, the doubts that I have about the evidence on that charge have in relation to the other charges.

Ride motor vehicle without consent charge

18․Section 318 of the Criminal Code 2002 provides that:
Taking etc motor vehicle without consent
(1) A person commits an offence if the person—
(a)   dishonestly takes a motor vehicle belonging to someone else; and
(b) does not have consent to take the vehicle from a person to whom it belongs.
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
Note 1   Pt 2.3 (Circumstances where there is no criminal responsibility) provides for defences that apply to offences under the Code. These include the defence of lawful authority (see s 43).
Note 2   For the meaning of dishonest , see s 300.
(2) A person commits an offence if—
(a) the person dishonestly drives or rides in or on a motor vehicle belonging to someone else; and
(b) the vehicle was dishonestly taken by someone without the consent of a person to whom it belongs.
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
19․The elements of the “ride motor vehicle without consent” offence, provided for by s 318(2) of the Criminal Code 2002, that the Prosecution must establish are that:
(a)the young person rode in a motor vehicle;
(b)the motor vehicle belonged to someone else;
(c)the motor vehicle was taken by someone without the consent of the person to whom it belonged;
(d)the young person was reckless with respect to the circumstance that the motor vehicle belonged to someone else;
(e)the young person was reckless with respect to the circumstance that the motor vehicle was taken by someone without the consent of the person to whom it belonged;
(f)the young person’s riding in the vehicle was dishonest according to the standards of ordinary people; and
(g)the young person knew that riding was dishonest according to the standards of ordinary people.

20․Neither of the Young People contested that these elements are made out on the evidence. In fact, Miss Nowell noted that she had offered to plead guilty to that charge early in the proceedings if the other charges were withdrawn.
21․I am satisfied that the evidence supports the concession made by the Young People.
22․The following facts are admitted by the Young People:
(a)at or around 5.50pm on 24 July 2023, at the Canberra Centre rooftop car park, Mr Smith approach the victim of the offending, who was sitting in her parked white Toyota Corolla, and opened the driver’s door;
(b)the victim owns that motor vehicle;
(c)when Mr Smith open the victim’s car door, he was holding a knife, which the victim could see;
(d)Mr Smith told the victim to get out of the car;
(e)Mr Smith caused the victim to abandon her keys and get out of her car;
(f)as the victim ran away from her car, Mr Smith drove it away and out of the Canberra Centre car park;
(g)the victim did not give consent for Mr Smith to threaten her or drive her car out of the car park;
(h)after police seized the victim’s car, they conveyed it to the Exhibit Management Centre for forensic processing. The victim did not receive her car back for some time;
(i)the victim has no relationship with Mr Smith or the Young People and has never met the Young People; and
(j)the victim did not consent for the Young People to ride in her car.

23․The evidence also shows that:
(a)the Young People were together with Mr Smith on the rooftop car park;
(b)Mr Smith took the victim’s motor vehicle without her consent;
(c)the Young People saw Mr Smith take the motor vehicle and knew both that he had taken it without consent and that the motor vehicle did not belong to Mr Smith (that is, it belonged to someone else);
(d)the Young People waited for Mr Smith on the ramp of the car park;
(e)the Young People willingly got into the motor vehicle (that is, intended to ride in it) when Mr Smith stopped next to the Young People on the car park ramp;
(f)the Young People rode in the motor vehicle as Mr Smith drove it out of, and away from, the car park; and
(g)in the circumstances, the Young People’s riding in the motor vehicle was dishonest according to the standards of ordinary people and the Young People knew that riding in the car was dishonest according to the standards of ordinary people.

24․Accordingly, I am satisfied that the Young People are each guilty of the offence of riding in a motor vehicle without consent, contrary to s 318(2) of the Criminal Code 2002.

What is in dispute in relation to the remainder of the charges?

25․A common element that the Prosecution must establish, in order to succeed in relation to each of the remaining charges (the joint commission charges), is that Mr Smith dishonestly appropriated property belonging to the victim with the intention of permanently depriving her of the property (her car). This is because:
(a)that intention is an element of the offence of theft, provided for in s 308 of the Criminal Code 2002, which states:
A person commits an offence (theft) if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property.
(b)the commission of the offence of theft is an element of the offence of robbery (s 309) and the commission of the offence of robbery is an element of the offence of aggravated robbery (s 310); and
(c)section 45A of the Criminal Code requires, in order for the Young People to be taken to have committed one of the joint commission offences, that an offence was committed by Mr Smith (not just that there be an agreement to commit an offence). That is, there must be something for which the Young People are to be made jointly responsible.

26․It is not in dispute that, in forcing the victim out of her car at knife point, and taking her car, Mr Smith dishonestly appropriated the victim’s car. What is in dispute is whether he had an intention to permanently deprive the victim of her car.
27․If he did have that intention, there is dispute as to the scope of any agreement between the Young People (or either of them) and Mr Smith and, in particular, with respect to the operation of s 45A of the Criminal Code 2002:
(a)whether there was an agreement that Mr Smith would permanently deprive the victim of her motor vehicle; and
(b)if not, whether the offences of aggravated robbery or, alternatively, robbery or, alternatively, theft, were of the “same type” as the offence(s) the parties agreed to; or
(c)whether the offence committed by Mr Smith was committed “in the course of carrying out” the agreement he entered into with the Young People (or either of them).

Was there an agreement between Mr Smith and the Young People to commit an offence and, if so, what was the scope of the parties’ agreement?

28․There is no direct evidence of an agreement between Mr Smith and the Young People, however there is circumstantial evidence which establishes that there was an agreement.

Evidence

CCTV footage
29․The CCTV footage captures a substantial part of the movements of Mr Smith and the Young People between around 4.40pm and 5.50pm on 24 July 2023. Identification was not in issue as the Young People accepted that they can been seen in the footage.
30․By at least 4.40pm, the three parties had met at the Canberra Centre in Civic. They walked around the shopping centre for a while before proceeding into a car park. They walked around the car park for a considerable period, spending most of their time on the rooftop, both walking around the car park, including between the cars parked there, and standing in a corner of the car park at the top of the ramp leading to the rooftop level. Both Mr Smith and Miss Nowell touched the driver’s door of a couple of the cars they walked past.
31․Occasionally, they walked down to the level below and then back up to the rooftop. They also stood in or near the car park pay station.
32․Mr Smith took the lead in terms of where the parties walked, with Miss Nowell usually next to him or close behind. Miss Rowland often trailed behind. Mr Smith and Miss Nowell spoke to each other on a number of occasions, as did the two Young People with each other. There were also occasions when all three spoke together.
33․Mr Smith followed a number of people in the car park but did not speak to any of them. Ultimately, at around 5:50pm, Mr Smith followed the victim to her car. The Young People stood at the top of the car park ramp watching him. After the victim had entered her car, Mr Smith opened the driver’s door and, after a brief period, the victim got out.
34․As the victim ran away, Mr Smith got into the car and the Young People jumped up and down in obvious excitement. They then moved quickly down the car park ramp, about half way to the next level down. Mr Smith drove quickly to that point and briefly stopped the car. The Young People opened the left hand doors and got into the car, with Miss Rowland in the front and Miss Nowell in the back. The Young People closed their doors and Mr Smith then drove out of the car park.

Video from Miss Rowlands phone

35․Miss Rowland recorded herself at 5.02pm saying words to the effect of: “We’re nicking a car and you’re not hopping in it”. This evidence was admitted only in the case against Miss Rowland.

Statement of Constable Ballard

36․Constable Ballard attended the car park on the night of the incident in the course of her duties. She spoke to the victim.
37․The victim said that, when she was in her car, a male (Mr Smith) approached her with a knife, threatening her and demanding she hand over the keys to her car.

Statement of Ms Hansen

38․Ms Hansen’s car was parked on the rooftop carpark. She entered the car park at around 5.00pm.
39․She saw a male and two young people acting suspiciously. The description she gave of one of the young people matched Miss Rowlands’ description. I am satisfied that the people she observed were Mr Smith and the Young People.
40․Ms Hansen observed Miss Nowell ducking between cars and observed Mr Smith walking between numerous vehicles and attempting to open their doors and boots. She observed the Young People following him, laughing and giggling while they watched him attempt to open the car doors.

Statement of Ms Cameron

41․Ms Cameron’s car was also parked on the rooftop car park.
42․Ms Cameron entered the rooftop level of the car park at approximately 5.45pm. She observed two females standing at the top of the entrance ramp to that level of the car park. She provided a description for one of the females which matched Miss Rowland. Having regard to the description and the CCTV footage (which did not show any other females standing at the top of the entrance ramp to the car park at that time), I am satisfied that the two females whom Ms Cameron saw were the Young People.
43․Ms Cameron heard Miss Rowland say words to the effect of “I think he’s doing it now”.
44․Shortly afterwards, Ms Cameron heard another woman scream and saw a vehicle accelerate quickly towards the entrance ramp. She could no longer see the Young People by that point.

Statement of Senior Constable Guy Griffin

45․In the early hours of 28 July 2023, Senior Constable Griffin located a white Toyota Corolla parked against some hedges, adjacent to a turnaround point on Nimbin Street in Narrabundah. The vehicle caught Senior Constable Griffin’s attention because it was parked with the driver’s door against the hedges (making it hard for anyone to access the driver’s seat). It is not in dispute that the car located by Senior Constable Griffin was the car taken by Mr Smith.

46․Both the front and rear registration plates (which were not for the same registration) had been reported stolen.
47․Senior Constable Griffin arranged for the car to be towed to the Exhibit Management Centre.

Reliability of evidence

48․The evidence discussed above was admitted without challenge. I accept that the witnesses provided reliable evidence and I accept the evidence without reservation.

Mr Smith’s evidence

49․Mr Smith gave evidence at the hearing. Much of Mr Smith’s evidence is unreliable, in circumstances where:
(a)the reason Mr Smith offered for why he had spent such a long time on the rooftop of the car park, including the occasions where he can be seen on the CCTV footage walking between cars (and touching at least one) – being that he was looking for a place to smoke – is implausible;
(b)Mr Smith’s evidence that he had stayed so long on the rooftop car park – because he was trying to build up the courage to ask someone for a cigarette – was inconsistent with his evidence that he was looking for a place to smoke (which suggested that he already had a cigarette) and was, in any case, similarly implausible given the interest he showed in the cars at the car park and the length of time he was at the car park; and
(c)the majority of the other answers he gave in evidence were that he did not know the answer or he could not remember what had happened. This suggests either an absence of memory (caused, according to Mr Smith, by the fact that he had taken drugs) or a deliberate attempt to avoid answering questions he did not want to answer. In either case, his evidence is unhelpful.

50․The only parts of Mr Smith’s evidence which I accept (relevantly for present purposes) are that:
(a)he did not drive to the rooftop car park and did not have a car there;
(b)he and the Young People were friends;
(c)he ended up driving the victim’s car to his house (whether he drove directly there or somewhere else is unclear); and
(d)he pleaded guilty to a charge of aggravated robbery and his matter had been committed to the Supreme Court for sentence.

There was an agreement
51․It is clear that the Young People and Mr Smith had come to an agreement that Mr Smith would take a car. It is the only rational explanation for the circumstances that:
(a)the parties spent so long walking around and standing in the car park, including talking together, when Mr Smith did not have a car parked on the rooftop car park;
(b)the parties walked around cars parked there, with Mr Smith and Miss Nowell both touching the driver’s side door of cars they walked past and, at around 5.00pm, Mr Smith attempted to open the doors and boots of several vehicles to the apparent amusement of the Young People;
(c)at around that time, Miss Rowland recorded herself saying that they were going to nick a car (relevant to the case against Miss Rowland);
(d)the Young People watched as Mr Smith forcibly take the victim’s car. At around that time, one of the Young People said to the other, “I think he’s doing it now”, indicating that they had knowledge of the plan for Mr Smith to take the car from a person. This is confirmed by the fact that the Young People jumped with excitement when he did so; and
(e)the Young People immediately then went half-way down the entrance ramp and waited for Mr Smith to drive to them. Mr Smith drove quickly to the meeting point and the Young People got in the car, after which they left together. It is apparent that they proceeded in accordance with an agreed plan in this respect.

What was the scope of the agreement?
52․I am satisfied, beyond reasonable doubt, that the parties had an agreement with respect to the elements of section 318 of the Criminal Code 2002, both in terms of:
(a)Mr Smith dishonestly taking a motor vehicle belonging to someone else (without their consent), relevant to the offence set out in s 318(1);
(b)Mr Smith dishonestly driving in, and the Young People riding in, the vehicle that had been dishonestly taken by Mr Smith, relevant to the offence set out in s 318(2).

53․The agreement was initially that this be done by taking an unlocked car. Miss Rowland submitted that that was all the agreement extended to and that a reasonable hypothesis consistent with the innocence of the Young People is that Mr Smith made the decision to take the car from a person in the spur of the moment. That is, that it is possible that he made the decision to take a car from a person of his own volition. For the reasons set out in paragraph [51] above, particular paragraph [51d], I do not accept that the evidence supports such a hypothesis. I am satisfied that, at some point, the agreement was that the offences be carried out by Mr Smith taking a vehicle from someone.
54․The evidence does not allow me to make any findings about whether there was an agreement with respect to:
(a)how Mr Smith would get someone to give him their car, although I am satisfied that the Young People were aware that there was a substantial risk that Mr Smith would use a threat of force on the person he chose in order to achieve that result;
(b)the period for which Mr Smith or the Young People would keep the car; or
(c)what Mr Smith or the Young People intended to do with the car after they had finished driving or riding in it.

55․Accordingly, the scope of the agreement did not extend to the commission of any of the joint commission offences with which the Young People have been charged.

Did Mr Smith intend to permanently deprive the victim of her car?

Mr Smith’s plea of guilty
56․The Prosecution relies on the fact that Mr Smith pleaded guilty to the offence of aggravated robbery as establishing that he accepts all the elements of that offence and, therefore, that he accepts that he had an intention to permanently deprive the victim of her car. The Young People submit that I need to decide for myself whether Mr Smith had the requisite intention.
57․Mr Smith’s evidence that he pleaded guilty to the offence of aggravated robbery was admitted without objection. However, I am of the view that the evidence is not relevant and that I should not take Mr Smith’s plea into account in determining whether the Prosecution has proved its case against the Young People.
58․As Dawson J said in Meissner v R [1995] HCA 41 at [19], the entry of a plea of guilty constitutes an admission by the Defendant of all the elements of the offence charged, but there are a range of reasons why a person might plead guilty that go beyond a belief in their guilt, such as “to avoid worry, inconvenience or expense, to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty”. Whatever the motivation behind the plea, as Brennan, Toohey and McHugh JJ said in the same case: “the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt”.
59․The fact that Mr Smith accepts that the elements of the relevant offences are made out in his proceedings is not proof of those elements in these proceedings. Ordinarily, such an admission is not admissible at the trial of a co-accused as evidence of the truth of the facts on which it was based or of the truth of the facts that were implicit in the plea (R v Dalton [2020] QCA 13 at [96], [156]; see also the cases cited at [96] – [113]). If evidence of a plea of guilty is admitted into evidence, the court should give a direction that the plea is not to be taken into account in determining whether the Prosecution has proved its case against the accused (see the cases cited in Dalton at [114] – [143]). I give myself that direction.
60․Accordingly, I must consider for myself whether Mr Smith had an intention to permanently deprive the victim of her car.

What is required, for the purposes of s 308 of the Criminal Code 2002, in order for a defendant to have an intention to permanently deprive another of property?

The literal meaning
61․The most obvious way that the “intention to permanently deprive” element will be satisfied is if a defendant means for the owner of the property to permanently lose it, for example because the defendant intends to retain possession of the property.
62․I note that it is the defendant’s intention at the time he or she appropriated the relevant property that is relevant.

The extended meaning

63․Subsection 306(1) of the Criminal Code 2002 extends the scope of this element beyond its literal meaning, to circumstances where a defendant does not intend for the owner of the property to permanently lose it but, rather, intends to treat the property as his or her own to dispose of regardless of the rights of the owner.
64․While s 306(1) does not require the defendant to have intended for the owner of the property to permanently lose it, the circumstances in which the property is taken must still display a “quality of permanence”: R v Mazaydeh (No 1) [2014] ACTSC 279 (Mazaydeh), per Murrell CJ at [10]. This phrase may be found in the Explanatory Statement to the Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Bill 2003, which introduced section 306. It states:
To satisfy subclauses 306(1) … the “disposal” … of the property will need to have a quality of permanence about it, such as where a person melts down another’s antique bracelet intending to give back the melted silver”.
65․Two examples of circumstances in which a defendant may be taken to have treated a person’s property as their own to dispose of regardless of the owner’s rights, are where:
(a)a defendant borrows property, if the borrowing is for a period, and in circumstances, making it equivalent to an outright taking or disposal: s 306(2); and
(b)a defendant has possession or control of property belonging to someone, and the defendant parts with the property (for their own purposes) under a condition about its return that the defendant may not be able to carry out: s 306(3).

The common law and legislative origins of section 306 and their development
66․Subsections 306(1) to (3) are based on section 6 of the Theft Act 1968 (UK), which was drafted to reflect the common law. In R v Dardovska [2003] VSCA 4 (Dardovska), Charles JA (with whom Phillips CJ and O’Bryan AJA agreed) said at [24], in discussing similarly drafted legislation in Victoria:
Before the 1968 legislation was enacted in the United Kingdom, an "intention permanently to deprive" as an element in the crime of larceny had troubled the courts on many occasions, particularly in circumstances where the accused could only be shown to have had what might be called a conditional or reckless intention to appropriate. There were three situations in which courts had found an intention permanently to deprive in such circumstances: first, where a person took property from the owner intending to return the property only if the owner paid for it, referred to as the "ransom principle"[6]; secondly, where the intention was to return the property only after it had undergone some fundamental change of character, the "essential quality principle"[7]; and thirdly, where a person pawned another's property without his consent, hoping to be able to redeem the pledge, but without being certain of his ability to do so, the "pawning principle"[8]. The intention of the House of Commons when passing the Theft Act 1968 was that s.6 of that Act was to be a "restatement of the law with regard to those cases which might not literally amount to a deprivation of the ownership, which had been so regarded from time to time".
67․In Reg v Lloyd [1985] 1 QB 829, Lord Lane CJ, delivering the judgment of the court, said at 836: “We would try to interpret the section in such a way as to ensure that nothing is construed as an intention permanently to deprive which would not prior to the Act of 1968 have been so construed”. However, in Dardovska, Charles JA noted at [26] that: “The courts have not … consistently accepted that s.6 of the Theft Act (or s.73(12) of the Crimes Act 1958) is limited precisely to the previous common law extensions of an intention to permanently deprive”.
68․As an illustration of Charles JA’s statement, Auld LJ said in R v Fernandez [1996] 1 Cr App Rep 175 (quoted at [31] of Dardovska):
"In our view, s.6(1), which is expressed in general terms, is not limited in its application to the illustrations given by Lord Lane CJ in Lloyd. Nor, in saying that in most cases it would be unnecessary to refer to the provision, did Lord Lane suggest that it should be so limited. The critical notion, stated expressly in the first limb and incorporated by reference in the second, is whether a defendant intended `to treat the thing as his own to dispose of regardless of the other's rights'. The second limb of sub-section (1), and also sub-section (2) are merely specific illustrations of the application of that notion …”
69․In this context, it is noteworthy that s 306(4) of the Criminal Code 2002 states that s 306 “does not limit the circumstances in which a person can be taken to have the intention of permanently depriving someone else of property”. An equivalent to s 306(4) is not found in section 6 of the Theft Act 1968 (UK).
70․Accordingly, while the circumstances described in Charles JA’s decision in Dardovska clearly fall within s 306, s 306(4) makes clear that s 306 is not limited to these common law examples of circumstances where a defendant may be found to have intended to permanently deprive a person of their property.

The taking of a motor vehicle

71․Whether the taking of a motor vehicle will amount to a theft obviously depends on the intention of the person taking the vehicle. Where the intention is to take the car for a “joyride”, it is unlikely that defendant intends for the owner of the vehicle to permanently lose it.
72․While it would be clear in most cases that the defendant intends to treat the vehicle as his or her own regardless of the owner’s rights for a time, the object of taking the car is ordinarily to keep the car for a brief time (hours or perhaps days) before abandoning it. Neither the taking of the car, nor its disposal, typically has the quality of permanence required to establish the intention prescribed by s 306.
73․This is why s 318 of the Criminal Code 2002 was enacted. As the Explanatory Statement to the Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Bill 2003 provides, in relation to the interaction between sections 308 and 318:
An important feature of these [s 318] offences (which distinguishes them from theft) is that there is no requirement for the perpetrator to intend to permanently deprive the victim of the property. This accords with the primary purpose of the offences, which is to target those who take motor vehicles for “joy-riding” and not to dispossess the owner. Of course, if the perpetrator intends to keep the vehicle or subsequently decides to do so, the theft offence will apply.

MCCOC’s reasons for recommending the inclusion of a motor vehicle taking offence are set out in the following passage from page 85 of it’s [sic] report:

The decision to treat unauthorised use of cars as an offence despite the absence of intent to permanently deprive can be justified as a matter of public policy by the prevalence of this type of behaviour and the interference with items which will often be the most valuable single item of property owned by the victim. However, the temporary nature of the borrowing and the stigma associated with theft – especially in view of the fact that a conviction for theft results in disqualification from a variety of jobs - does not justify treating illegal use of cars as theft. It should be a separate offence. Submissions accepted the need for this as a separate offence.
74․Two things should be noted about the way that sections 308 and 318 were drafted, reflecting the above purposes of those provisions. The first is that sections 308 and 318 were enacted at the same time and should be interpreted in a way that permits them to operate harmoniously. The second, related to the first, is that the way that the two sections were drafted makes clear that they were enacted in order to address different mischiefs:
(a)the wording of s 318 is directed at a specific kind of conduct (dishonestly taking, driving or riding in a motor vehicle); and
(b)the wording of s 308 is drafted in a way that is intended to capture a wider range of conduct but, by requiring an intention to permanently deprive a person of their property, requires something more than merely dishonestly taking a person’s car without their consent. An intention to take a car joyriding, or to take a car for a limited period before abandoning it, would in many (if not most) cases involve an intention that goes no further than what is required to establish an offence under s 318.

75․In my view, the proposition that dishonestly taking (or driving or riding in) a vehicle is unlikely, without more, to amount to a theft is supported by two of the cases relied on by the parties, R v Mitchell [2008] EWCA Crim 850 (Mitchell) and McGuiness v Police [2016] SASC 133 (McGuiness).

Mitchell

76․The facts of this case involved an incident on 22 February 2005, when a Mrs Davis was sitting in her husband’s car, a BMW, in a country lane. She was set upon by four men and thrown out of the car, which was then driven away by the defendant. The defendant abandoned the car a few kilometres away with its hazard lights flashing.
77․At least one of the men then took a different car, which they also abandoned before taking a third car. They ultimately set the third car on fire.
78․The question was whether the defendant had intended to permanently deprive Mr or Mrs Davis of ownership of Mr Davis’s car. That question arose in the context of an appeal from a decision of the first instance judge, who had ruled against a no-case submission. The judge stated that the abandonment of Mr Davis’s vehicle might amount to a disposal for the purposes of s 6 of the Theft Act 1968 (UK) and that whether the defendants had the requisite intention was a matter that should be left to a jury.
79․On appeal, the court found at [25] that the first instance judge had erred. The court stated that:
So far as the abandonment itself of the car was concerned … that of course operated as a factor in favour of the defence. Moreover, the fact that its hazard lights were left on emphasized that there was no intention to avoid drawing attention to the car. So far as the use of the vehicle is concerned … its use amounted to being driven just a few miles before its abandonment.
80․At [26] the court said, in relation to the prosecution’s submission that the treatment of Mrs Davis showed an intention to treat the car as the defendant’s own, that:
Of course, everything about the taking and use of the BMW, like any car taken away without the owner’s authority, indicates an intention to treat such a car regardless of the owner’s rights. That is the test of conversion in the civil law. But not every conversion is a theft. Theft requires the additional intention of permanently depriving the owner or the substituted intention under s 6(1).
81․The court said at [27], in relation to the car which had been set on fire, that:
… If it were the case that a car was taken for the purposes of destroying it, that would be a case of theft, and where another’s car has been set on fire that may be some evidence on which an intention to permanently deprive or a s 6(1) intention may be inferred …
82․At [27], the court commented that accepting the prosecution’s submission that the taking of Mr Davis’s car amounted to a theft:

… would run the danger of turning every case of taking and driving away without authority under s 12 of the Theft Act into a case of theft, whereas of course the whole point of s 12 is to get round the problem that a car which is taken and driven away for a ride, only to be abandoned, is not easily found to be a case of theft.
83․I note that s 12 of the Theft Act 1968 (UK) is in similar terms to s 318 of the Criminal Code 2002.
84․At [28], the court concluded that:
In our judgment the facts of this case simply do not support a case to go before a jury of theft and therefore robbery of the BMW. The BMW was plainly taken for the purposes of a getaway. There was nothing about its use or subsequent abandonment to suggest otherwise. Indeed, its brief use and subsequent abandonment show very clearly what was the obvious prima facie inference to be drawn from its taking which was that the occupants of the Subaru needed another conveyance that evening. We therefore consider that the judge erred in being beguiled by s 6 into leaving this count of robbery to the jury.
McGuiness
85․McGuiness is a decision of the Supreme Court of South Australia, on appeal from a decision of the Magistrates Court of South Australia.
86․The facts of this matter involved the defendant taking a car from the driveway of a house in Roxy Downs in South Australia. At Pimba, about 84 kilometres from Roxby Downs, the defendant lost control of the vehicle and it left the road before coming to rest on its side.
87․Ultimately, the defendant was able to obtain the assistance of a member of the public to put the car back onto its wheels. Police found the defendant attempting to change one of the car’s tyres, which had blown off its rim.
88․The evidence established that, at the time the Defendant took the car, he intended to drive it to Whyalla (over 300 kilometres from Roxby Downs). However, there was no evidence as to what the defendant intended to do with the car once he arrived at his destination. Doyle J noted that it is possible that the defendant intended to abandon the car with an expectation that the car would be returned to its owner (given that it was registered to its owner).
89․At first instance, the only issue in dispute was the defendant’s intention in relation to the car, specifically whether he had an intention to deprive the owner permanently of the vehicle or to make a serious encroachment on the owner’s proprietary rights. Those were the alternative intentions provided for in s 134 of the Criminal Law Consolidation Act 1935 (SA) for the offence of theft.
90․I note that, under s 134(2) of that legislation, a person was taken to have intended to make a serious encroachment on an owner’s proprietary rights if the person intended:
(a)to treat the property as his or her own to dispose of regardless of the owner’s rights; or
(b)to deal with the property in a way that creates a substantial risk (of which the person is aware) –
1․ that the owner will not get it back; or
2․ that, when the owner gets it back, its value will be substantially impaired.

91․Paragraph 134(2)(a) of the Criminal Law Consolidation Act 1935 (SA) is, of course, in similar terms to s 306(1)(b) of the Criminal Code 2002.
92․On appeal, this issue was narrowed further. At [20], Doyle J stated that:
… there was no basis on the evidence to conclude beyond reasonable doubt that the appellant intended to retain possession of the car once in Whyalla, or otherwise deal with it in a manner that would result in the owner being permanently deprived of the motor vehicle …
93․Accordingly, that left for consideration whether the defendant had an intention to make a serious encroachment on the proprietary rights of the owner of the vehicle, having regard to the question whether the Defendant’s conduct established that he intended to treat the property as his own to dispose of regardless of the owner’s rights. It was not suggested that the second limb of s 134(2) of the Criminal Law Consolidation Act 1935 (SA) was in issue.
94․At [39], Doyle J said:
… Section 134(2)(a) requires an intention by the defendant to treat the property “as his or her own to dispose of regardless of the owner’s rights”. In giving work to do to each part of this phrase, it seems to me that what it contemplated is a form of dealing or use by the defendant that ignores, or is inconsistent with, the owner’s rights over the property. In my view, this would extend to use that involves indifference as to the owner’s rights.
95․At [41] to [45], Doyle J considered the decision of Lovell DCJ in R v Wilson [2014] SADC 177, which considered a case in which a motor vehicle was taken from the owner’s garage and found five days later adjacent to the premises in which the defendant was residing. The defendant had the keys to the vehicle in his pocket. At [42], Doyle J quoted as follows from [158] of Lovell DCJ’s decision:
… At the time of his dealing there are really only four possible alternatives the accused was facing. He could keep the car, he could sell it, he could give it away or he could abandon it. If the first option was his intention, then he would be caught by s 134(1)(c)(i) [intention to permanently deprive the owner of the property]. If any of the other three were his intention, he would be caught by the narrower definition of ‘dispose of’ under s 134(1)(c)(ii) [intention to make a serious encroachment on the owner’s proprietary rights]. The Information alleges the alternatives in the particulars of the charge of theft. I am not satisfied beyond a reasonable doubt that he had, at the time of dealing, an intention to permanently deprive the owner of the car. However, I am satisfied beyond a reasonable doubt that he intended to make a serious encroachment of the owner’s proprietary rights as discussed.
96․At [43] and [45] Doyle J, agreeing with the approach taken by Lovell DCJ in R v Wilson, said:
I agree with the approach taken by Lovell DCJ. In particular, I agree with his Honour’s view that an intention to abandon a motor vehicle will usually suffice to establish an intention to make a serious encroachment upon the owner’s proprietary rights for the purposes of s 134(1)(c)(ii). If a defendant abandons a motor vehicle, he or she may expect or contemplate that, by reason of it being registered to its owner, it will in all likelihood soon be returned to that owner. While this will generally prevent the prosecution establishing an intention permanently to deprive the owner of their vehicle, in my view it will ordinarily involve a sufficient level of indifference to the owner’s rights to establish the intention required by s 134(2)(a).
But in the typical case of a defendant who takes a car with the intention of using it for joyriding, or for using it to transport him from A to B (with a view to abandoning it at B), I consider the state of mind required by s 134(2)(a) will be made out. I do not think that the reference in that subsection to an intention to treat the property as his or her own requires an intention to keep the vehicle and use it as their own for an extended period of time or on multiple occasions. In my view, an intention by the defendant to use for the purpose of joyriding or as a means of transport from A to B will suffice to establish an intention to treat the vehicle as his or her own. And if the intention is thereafter to abandon the vehicle, I consider this will be sufficient to establish the requisite degree of indifference to the owner’s rights to constitute an intention to treat the vehicle as his or her own to dispose of “regardless of the owner’s rights”.
97․At [46], Doyle J concluded that the defendant’s intention to drive the car to Whyalla, without any evidence that he had considered returning the car to its owner, amounted to an intention to use the car as his own to dispose of regardless of the owner’s rights. Accordingly, the requirements of s 134(2)(a) were made out and, therefore, the defendant was found to have the intention of making a serious encroachment on the proprietary rights of the owner of the car.
98․At first blush, the conclusion that the defendant in that case intended to use the car as his own to dispose of regardless of the owner’s rights might seem to favour the Prosecution position in this case, however I do not consider that it does.
99․While s 134(2)(a) of the Criminal Law Consolidation Act 1935 (SA) provides for an intention on the part of a defendant, “to treat property as his or her own to dispose of regardless of the owner’s rights” which is equivalent to the intention provided for in s 306(1)(b) of the Criminal Code 2002, the intentions are used in aid of different concepts.
100․In the Criminal Code 2002, a defendant’s intention to treat property as his or her own to dispose of regardless of the owner’s rights establishes that the defendant has an intention to permanently deprive someone else of their property.
101․In the Criminal Law Consolidation Act 1935 (SA), a defendant’s intention to treat property as his or her own to dispose of regardless of the owner’s rights does not establish that the defendant had an intention to permanently deprive someone else of their property. The Criminal Law Consolidation Act 1935 (SA) does not provide for any circumstances by which a defendant will be taken to have that intention.
102․The Criminal Law Consolidation Act 1935 (SA) provides that a defendant’s intention to treat property as his or her own to dispose of regardless of the owner’s rights will instead establish that a defendant intended to make a serious encroachment on the owner’s proprietary rights. This intention, which is not provided for in the Criminal Code 2002, clearly embraces circumstances beyond those where the Defendant intends to permanently deprive the owner of the property. I say “clearly”, both because I consider that the breadth of the wording of the provision has that effect and because the Criminal Law Consolidation Act 1935 (SA) establishes it as an additional (alternative) intention to, and not in substitution for, an intention to permanently deprive an owner of their property.
103․The different legislative context means that Doyle J’s interpretation of the concept of “intention to treat property as his or her own to dispose of regardless of the owner’s rights” cannot be adopted in the interpretation of s 306(2) of the Criminal Code 2002. In my view, Doyle J’s reasons also support this conclusion.
104․First, his Honour accepted that, in the context of the South Australian legislation, a defendant’s intention to treat property as his or her own to dispose of regardless of the owner’s rights contemplates a form of dealing or use by the defendant that ignores, or is inconsistent with, the owner’s rights over the property, and extends to use that involves indifference as to the owner’s rights. This interpretation reflects the nature of the statutory intention to which the interpretation is directed – being an intention to make a serious encroachment on the owner’s proprietary rights.
105․In contrast, for the purposes of s 306(1) of the Criminal Code 2002, the defendant’s intention to treat property as his or her own to dispose of regardless of the owner’s rights is taken to establish that the defendant had an intention to permanently deprive the owner of the property. This requires the circumstances of the taking and disposal of the property to have a quality of permanence about them.
106․Secondly, as noted above, his Honour found that an intention to permanently deprive an owner of their car will generally not be inferred from a car being abandoned but will usually only suffice to establish an intention to make a serious encroachment on the owner’s proprietary rights. It is also this intention (and not an intention to permanently deprive) that his Honour considered would be established in the typical case of a defendant who takes a car with the intention of using it for joyriding, or for using it to transport him from location A to location B with a view to abandoning it at location B.
107․The other significant distinguishing feature between the Criminal Code 2002 and the Criminal Law Consolidation Act 1935 (SA) is that, as discussed above, sections 306, 308 and 318 of the Criminal Code 2002 were inserted into that Act at the same time (and were drafted to address different mischiefs), whereas section 134 of the Criminal Law Consolidation Act 1935 (SA) was introduced at a later time to section 86A of that legislation (which created an offence of using a motor vehicle without consent).
108․Doyle J found in McGuiness that, in addition to the overlap between s 134 and s 86A of the Criminal Law Consolidation Act 1935 (SA) not being complete, it was relevant that s 86A was enacted earlier in time to address a particular issue with respect to the illegal use of motor vehicles, whereas s 134 “was part of a later and more general reform of provisions dealing with all forms of property”. His Honour said that: “Given the broader range of matters that s 134 is intended to address, there is no reason to consider it unlikely that Parliament intended that there be significant overlap in the operation of s 86A and s 134”.
109․For the reasons that are set out earlier in this decision, it is my view that the legislative context for, and the wording of, sections 308 and 318 of the Criminal Code 2002 reflects an intention that there not be any overlap in the operation of those two provisions.

Conclusion

110․An intention to permanently deprive another of their property will be satisfied if a defendant means for the owner of the property to permanently lose it (where, for example, the defendant intends to retain possession of the property). An intention to permanently deprive will also be established if the defendant intends to treat the property as their own to dispose of regardless of the rights of the owner, even where the defendant does not mean for the owner to permanently lose the property: s 306(1) of the Criminal Code 2002.
111․It is not enough, to establish this “deemed” intention, that a defendant takes property intending to treat it as his or her own. There must also be an intention to dispose of the property regardless of the rights of the owner. The circumstances surrounding this intention, including the intended disposal, must have a quality of permanence about them: Mazaydeh.
112․There are statutory examples in which a defendant may be taken to have treated a person’s property as their own to dispose of regardless of the owner’s rights. They are set out in subsections 306(2) and (3) of the Criminal Code 2002. They are not exclusive examples: s 306(4).
113․Taking a car for the purposes of destroying it would satisfy the deemed intention, being a disposal that has a quality of permanence about it. Setting another’s car on fire may be evidence on which an intention to permanently deprive may be inferred.
114․Taking a car for a joyride, for use as a getaway vehicle, or as a means of otherwise conveying the defendant from one location to another and then to be abandoned, will not ordinarily be accompanied by an intention to permanently deprive the owner of the car of their property. That is because the defendant is unlikely to have an intention for the owner of the car to permanently lose it and there is unlikely to be any quality of permanence about the taking and disposal of the car. The defendant’s intention is unlikely to go any further than the intention required to satisfy the elements of s 318.
115․Similarly, an intention to permanently deprive an owner of their car will generally not be inferred merely from a car being abandoned. Such an inference is unlikely to arise because the abandonment of a car will ordinarily indicate that there was no quality of performance in the defendant’s disposal of the car. Where there is a realistic possibility that the defendant had an expectation that the car would be returned to its owner (given that its registration would identify who the owner of the car was), that will provide a further indication that the defendant had no intention of permanently dispossessing the owner of the car.

Did Mr Smith intend to permanently deprive the victim of her car?

116․The Prosecution submitted that Mr Smith accepted the victim’s car as his own by taking it home, and must have had the intention to permanently deprive the victim of her car because he did not know her and had no mechanism to return the car to her. The Prosecution submitted that just because the car was not burned does not mean that Mr Smith did not have an intention to permanently deprive the victim of it. The Prosecution further submitted that, just because the police could locate the vehicle does not mean that, at the time it was taken, there was no intention on Mr Smith’s part to permanently deprive the victim of the car.
117․There is no evidence as to Mr Smith’s intentions with respect to his use of the victim’s car at the time he appropriated it. In particular, there is no evidence as to what Mr Smith intended to do with the car once he arrived at his destination.
118․Further, the evidence does not allow me to make any findings with respect to Mr Smith’s disposal of the victim’s car. The evidence which I accept is simply that:
(a)Mr Smith drove the car away from the Canberra Centre;
(b)at some point he drove the car to his house; and
(c)the car was ultimately found in Narrabundah, seemingly abandoned, four days after it was taken by Mr Smith.

119․I note that there was a concession on the part of Miss Nowell that the car was found a short distance from Mr Smith’s house, however that concession was not given by Miss Rowland. The evidence does not allow me to make any finding as to whether the location where the car was found had any particular relevance to Mr Smith or the Young People.
120․I note that the number plates on the victim’s car had been swapped for stolen number plates. While that might provide some evidence of an intention to keep the car, by taking away the registration link to the victim, that conduct still does not have any quality of permanence, given that the number plates could be identified by police to be stolen. Further, there is no evidence that Mr Smith was the person who swapped the number plates.
121․As also noted above, the car was parked with the driver’s door against the hedges (making it hard for anyone to access the driver’s seat). This suggests that the car had been abandoned. Further, there is no evidence that the car had been damaged and it was located in Narrabundah, which is not a long distance from where it was taken in the city. As I have noted already, the car was found four days after Mr Smith took it. In my view, the disposal of the car does not have any quality of permanence about it.
122․These circumstances do not permit any inference that Mr Smith had an intention to permanently deprive the victim of her car, either on the basis that she be permanently dispossessed or on the basis that he intended to treat the car as his own to dispose of regardless of the victim’s rights.

Young People are not guilty of the joint commission offences

123․As I am not satisfied that Mr Smith intended to permanently derive the victim of her car at the time that he appropriated it from her, I am not satisfied that Mr Smith committed the offence of theft (nor, therefore, of robbery or aggravated robbery).
124․Accordingly, I am not satisfied that the Prosecution has proved that the Young People committed any of the joint commission offences with which they were charged.

Findings

Miss Rowland
125․On the charge of ride motor vehicle without consent, contrary to s 318 of the Criminal Code 2002 (CH2023/1076), I find the young person guilty.

126․On the charge of joint commission aggravated robbery, contrary to s 310 of the Criminal Code 2002 by virtue of s 45A of the Criminal Code 2002 (CH2023/1499), I find the young person not guilty.
127․On the charge of joint commission robbery, contrary to s 309 of the Criminal Code 2002 by virtue of s 45A of the Criminal Code 2002 (CH2023/1500), I find the young person not guilty.
128․On the charge of joint commission theft, contrary to s 308 of the Criminal Code 2002 by virtue of s 45A of the Criminal Code 2002 (CH2023/1501), I find the young person not guilty.

Miss Nowell

129․On the charge of ride motor vehicle without consent, contrary to s 318 of the Criminal Code 2002 (CH2023/1072), I find the young person guilty.
130․On the charge of joint commission aggravated robbery, contrary to s 310 of the Criminal Code 2002 by virtue of s 45A of the Criminal Code 2002 (CH2023/1502), I find the young person not guilty.
131․On the charge of joint commission robbery, contrary to s 309 of the Criminal Code 2002 by virtue of s 45A of the Criminal Code 2002 (CH2023/1503), I find the young person not guilty.
132․On the charge of joint commission theft, contrary to s 308 of the Criminal Code 2002 by virtue of s 45A of the Criminal Code 2002 (CH2023/1504), I find the young person not guilty.

I certify that the preceding one hundred and thirty-two [132] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby.

Associate: Niamh Dwyer

Date: 26/04/24

[2024] ACTCC 4

26 April 2024