Powell v Powell - [2001] WADC 219

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: POWELL -v- POWELL [2001] WADC 219

CORAM: MULLER DCJ

HEARD: 16-17 AND 20-21 AUGUST 2001

DELIVERED : 21 SEPTEMBER 2001

FILE NO/S: CIV 1785 of 1999

BETWEEN: WARREN GEOFFREY POWELL
Plaintiff
AND
ROSEMARY ANTHONY POWELL
Defendant

Catchwords:

Conversion - Alleged theft of $85,000 in cash - Circumstantial evidence - Onus of proof - Whether evidence capable of supporting inference that defendant stole cash

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr D A Lenhoff
Defendant: Mr N D Paterson

Solicitors:

Plaintiff: Lenhoff & Co
Defendant: Birman & Ride

Case(s) referred to in judgment(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v R (No 2) (1984) 153 CLR 521
Holloway v McFeeters (1956) 94 CLR 470

Case(s) also cited:

Davies v Taylor [1974] AC 207
Jones v Dunkel (1959) 101 CLR 298
Rejfek v McElroy (1965) 112 CLR 517

MULLER DCJ: In this action the plaintiff seeks to recover $85,000 in damages from the defendant whom he alleges stole that amount in cash from him.

Evidence of plaintiff

In 1990 the plaintiff owned a 28 foot boat which he claimed he sold through an agent for an amount of approximately $45,000. He received approximately $40,000 from the proceeds of the sale and claimed he banked the check before withdrawing the same amount in cash and taking it to his home in Leeming where he kept it.
Three years later in 1993 he claimed to have sold a property he owned at 28 Selby Street in Thornlie for $67,000. He received approximately $60,000 from the sale and, as he had done in relation to the sale of the boat, banked the cheque he received before withdrawing an equivalent amount in cash which he kept at home. He described how he later moved to a five acre property at 1487 Gay Street in Huntingdale where he installed a safe in a closet in his home and kept the proceeds from the sale of the boat and the house in this safe. After about 12 months he said he decided to transfer the cash from the safe to a cash box he had obtained from his son. He made this decision because he thought the money would be less conspicuous in the cash box and that any would be thief would tend to focus on the safe in the closet rather than on the cash box which he secured with a chain and lock and placed in two plastic bags before putting it at the bottom of a linen cupboard.
The defendant, who is the plaintiff's mother, initially lived in Wattle Grove with the plaintiff's brother. In about 1995 the plaintiff, who lived at the Huntingdale property with his partner, Donelle Feltham and his two children, Vanessa and Damien, decided to invite his mother, the defendant, to move to Huntingdale to live with him in order to help his partner, who was unwell at the time, with the housework and other daily chores. The defendant moved into the plaintiff's Huntingdale home as arranged. The move, however, was not a success. Apparently the defendant and the plaintiff's partner, Donelle Feltham, became antagonistic towards one another. The breakdown in their relationship led to Donelle Feltham deciding to leave the Huntingdale home. Not long afterwards the plaintiff's son, Damien, also decided to leave. Vanessa, the plaintiff's daughter, had already left earlier. After Damien left the plaintiff continued living in the Huntingdale home with the defendant.
After the plaintiff's partner, Donelle Feltham, had left the Huntingdale home the plaintiff claimed he always kept his bedroom door locked. He said his mother had a key to the bedroom because she did the housework and had to tidy the room from time to time. He claimed his mother remained at the house most of the time and only went to her own property in Como approximately once a week to collect the mail.
Some time after Donelle Feltham had left the home the plaintiff developed a friendship with a woman named Maria Harbridge. Maria Harbridge did not live at the house in Huntingdale but the plaintiff was often away from home staying with her during this period.
On Saturday 19 December 1998 the plaintiff arranged for Donelle Feltham, his former partner, to go to the Huntingdale property to collect items of property she had left there. Arrangements were also made for the plaintiff's son, Damien, to be there to help load a trailer which Donelle Feltham brought with her. While collecting her property Donelle Feltham asked the plaintiff if he could give her some spare linen. The plaintiff opened the linen cupboard, where the cash box was kept, in order to collect the linen. The defendant was in the house on this occasion.
On the following day, Sunday 20 February 1998, the plaintiff and his friend, Maria Harbridge, took the defendant out and returned to the Huntingdale home for a cup of tea before leaving again. On his return home the plaintiff, for no apparent reason, claimed to have checked to ensure the cash box was in the linen cupboard. He and Maria Harbridge then left and he spent that night at her house. He left the defendant alone at the Huntingdale house.
At about 10.00 am on Monday 21 December 1998 the plaintiff returned to the Huntingdale property and found his mother there. He left shortly after that and stayed at Maria Harbridge's house until Thursday 24 December 1998.
On Thursday 24 December 1998 the plaintiff returned home with a friend, Milton Fizzioli. On driving to the rear of the house he noticed several curtains that had previously been kept at the bottom of the linen cupboard had been placed outside the back door. He also noticed that a red box, which had also been kept in the linen cupboard next to the cash box, was outside the back door next to the curtains. On entering the house he found his mother in the kitchen and asked her if she had cleaned the linen cupboard. When she confirmed she had he immediately went to the linen cupboard and found the cash box missing. He claimed he confronted his mother and asked her what she had done with the cash box. He claimed she told him she did not know what he was talking about. On examining the linen cupboard he said he noticed the contents of the lower shelf had been moved into the hallway and that the bottom of the cupboard, where the cash box had previously been kept, had been cleaned. He said he demanded that his mother return the box and cash to him but she was unresponsive. He told her if she did not return the cash she could leave. Not long afterwards the plaintiff left the house and returned to his place of work with Milton Fizzioli. Later that day when he returned home he found his mother had left.
After his mother's departure from the house in Huntingdale there was very little contact between the two of them. The plaintiff next saw the defendant at his brother's house on Boxing Day two days after she had left the Huntingdale property. Neither communicated with the other on this occasion. Following this meeting the plaintiff claimed he made numerous attempts to contact his mother. These attempts were mainly unsuccessful. In the end he began leaving notes at her property in Como asking her to contact him.
On the one occasion he actually managed to confront his mother at her property in Como she allegedly abused him and left him outside the property while she went to her neighbour's house. On another occasion he arranged a meeting with his mother, Donelle Feltham and his son Damien. He claimed he engaged a private investigator to attend the meeting but his mother was late and the meeting had to be cancelled.
In May 1999 the plaintiff commenced proceedings in this Court against the defendant.
Other witnesses called by the plaintiff lent some support to parts of his evidence. Donelle Feltham, for example, confirmed she went to collect her belongings from the house in Huntingdale towards the end of 1998 and found the plaintiff, his son Damien and the defendant at the house. She confirmed it was on this occasion she asked the plaintiff if he had any spare linen and that she was present when the linen cupboard was opened and items removed. She said she never knew the plaintiff had a cash box and she certainly did not see any cash box in the linen cupboard.
Maria Harbridge, who is currently living with the plaintiff at his Huntingdale home, gave evidence that on 20 December 1998 she and the plaintiff went to the Huntingdale property to collect the defendant. She said she noticed a smell coming from the linen cupboard and heard the defendant say she intended cleaning the linen cupboard. She went on to describe how she, the plaintiff and the defendant went out and later took the defendant back to the Huntingdale property. She confirmed that the plaintiff stayed with her between 20 December 1998 and 24 December 1998.
Vanessa Leggo, the plaintiff's daughter, said that in April 1994, when she was living with the plaintiff in Grenfell Street in Leeming, she found a shoe box in his bedroom filled with $100 and $50 notes.
The plaintiff's son, Damien Powell, said he lived with the plaintiff and defendant at the Huntingdale property until mid November 1998 when he left after a breakdown in his relationship with the defendant. He said he returned to the property on Saturday 19 December 1998 at his father's request to help Donelle Feltham remove her belongings from the house. On this occasion he claimed to have remained at the front door and said he did not open or go near the linen cupboard. When asked whether he had returned to the property at any stage after this occasion he said he did not think he had gone back between 19 December 1998 and 24 December 1998. He did concede, however, it was possible he had returned to the property to say goodbye to his family before going on holiday although he claimed he had no specific reason to go back there.
As part of the plaintiff's case significant emphasis was placed on the breakdown of the relationship between the defendant, the plaintiff and other members of the plaintiff's family. While there may have been an atmosphere of antagonism between the parties, particularly the defendant and the plaintiff's children, I am unable to see how this mutual dislike or antagonism has any real relevance to the alleged conversion of the money.

Evidence of defendant

The defendant, who had lived in her own home in Como for 14 years before moving to the Huntingdale property in March 1997 at the plaintiff's request, said she initially stayed at Huntingdale for 2 weeks only after the plaintiff's partner, Donelle Feltham, was discharged from hospital after surgery. She went on to say she moved to Huntingdale permanently after Donelle Feltham had left and the plaintiff asked her to live on the property and look after his son, Damien, and do the cooking and household chores. Throughout the time she lived at Huntingdale she said she did not see the cash box in the linen cupboard. She said she had little reason to go to the linen cupboard because she was told by the plaintiff that most of the linen belonged to his former partner, Donelle Feltham.
On Saturday 19 December 1998 the defendant said that the plaintiff's son, Damien, came to the house first and showed a prospective buyer a car he was selling. Later Donelle Feltham and the plaintiff arrived and they all began removing items of property from the house. While this was happening the defendant said she did not go near the linen cupboard but noticed both the plaintiff and his son, Damien, at the cupboard removing items and passing them to Donelle Feltham to take outside. It was on this occasion that, according to the defendant, Donelle Feltham remarked about the smell coming from the cupboard. The defendant agreed the plaintiff told her she would have to clean the cupboard out. After the others had left the defendant said she went to the linen cupboard and noticed that most of the items of linen had been removed. All that was left were a couple of tattered towels and curtains on the top of the cupboard and, to the best of her recollection, there was nothing left below the bottom shelf. She could not, however, be certain of that.
The defendant said that, contrary to what he had earlier told the Court, Damien Powell did come back and spent the night at the Huntingdale property on Saturday 19 December 1998 and on Sunday was still at the property trying to sell the same car he had showed prospective purchasers earlier. It was on that Sunday the 20 December 1998 that the plaintiff and Maria Harbridge took the defendant shopping before taking her back to Huntingdale late in the afternoon. The defendant claimed that Damien Powell again returned and slept the night of Sunday 20 December 1998 at Huntingdale. She said that on Monday 21 December 1998 he was still on the property trying to sell the car but that he did not spend the night there. On Tuesday 22 December she said he returned and spent the night and was there on the morning of Wednesday 23 December when he showed the car to a prospective purchaser. That night she was alone on the property. She also claimed that on either Monday 21 or Wednesday 23 December she went out and returned home to find the dog she had left inside outside the home. One of the other dogs which had been tied up had also been released. She claimed she had often seen Donelle Feltham, the plaintiff and his son, Damien, enter the house by using the key kept under the pot plant on the front porch.
Moving to Thursday 24 December 1998 the defendant said she had cleaned the house and taken some curtains and old towels from between the second and third shelves in the linen cupboard outside the back door. She vacuumed the bottom of the cupboard but did not notice any towels or red box in the aperture between the lower shelf and the floor surface. She went on to describe how the plaintiff had returned home that morning with Milton Fizzioli and accused her of taking the cash box. She said he gave her an ultimatum to leave and she returned home to Leonora Street. From that point in time she never returned to stay at the house in Huntingdale.

The law

There was no direct evidence of conversion of the money. The allegation that the defendant took the money is circumstantial in nature. For the plaintiff to succeed the circumstances must raise a more probable inference that the defendant took the cash. As was said by the High Court in Chamberlain v R (No 2) (1984) 153 CLR 521 at 535:
"When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case: in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence."
Similarly in Holloway v McFeeters (1956) 94 CLR 470 at 480 it was said:
"In a civil case 'you need only circumstances raising a more probable inference in favour of what is alleged…where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture.'"
I believe it is important to bear in mind that the defendant is alleged to have committed a criminal act. This does not affect the civil standard of proof to be applied but is a factor to be borne in mind when applying that standard. As was said by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 363:
"When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues…But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected."

The issues to be decided

Both the plaintiff and defendant agree there are three factual issues that will have to be decided. First, did the plaintiff have $85,000 in cash at home at the end of December 1998. If so, was that money taken by someone? If it was, was it the defendant who took it?

Evidence as to cash having been kept in plaintiff's house

In relation to this issue there is certainly independent evidence that the plaintiff sold a boat in 1990 and his property in Thornlie in 1993. As part of his case the plaintiff produced as an exhibit an Agency Agreement (Exhibit 2) relating to the appointment of an agent to sell his 28 foot boat in 1990. There is, however, no evidence of what happened to the proceeds of that sale. The plaintiff was unable to produce any receipts or other documentation to substantiate his claim that he had received part or all of the purchase price. He was also unable to produce any bank records to establish that the cheque for approximately $40,000 he claimed he had received from the sale had been paid into his bank account before an equivalent amount had been withdrawn in cash.
The situation in relation to the sale of the property at 28 Selby Street in Thornlie is the same. While the Certificate of Title and Transfer of Land document (Exhibit 3) reflects the transfer of the property from the plaintiff to the purchasers on 6 April 1993 there is no independent documentary evidence to substantiate the plaintiff's assertion that he received approximately $60,000 from the sale of the property or that he banked a cheque for that amount and withdrew an equivalent amount in cash.
The plaintiff's financial situation at the time the cash was allegedly stolen is revealing. In cross‑examination he admitted he had two loan accounts. His term loan account reflected a debt of $18,054 on 16 December 1998 and his business cheque statement revealed a debt of $15,695 as at 18 December 1998. His monetary assets were limited to a sum of $3,332 in an advantage saver account and $3,727 in what was termed a classic account. It was suggested by counsel for the defendant that it was unlikely the plaintiff would have kept a large amount of cash at home when he owed the bank over $30,000 and had two saving accounts in which he could have kept the money.
Had it not been for the evidence of Vanessa Leggo I might have had difficulty in finding that the plaintiff kept this amount of cash in his linen cupboard. The evidence of his daughter, however, confirmed that he did have a metal box filled with $100 and $50 notes at his property in Leeming in April 1994. I accept this evidence without hesitation. Given this finding I believe it is more probable than not that the plaintiff did have approximately $85,000 in cash at his property in Huntingdale at the time alleged. Why he kept this large amount of money at home instead of depositing it in the bank is a matter of conjecture. I am satisfied, however, that the money was there at or about the time of the events giving rise to this claim.

Evidence as to whether money taken without plaintiff's consent

Having found that the money was kept at the property in Huntingdale I am satisfied that it was taken by someone. Everything points towards the money having been stolen. I agree with the submission made by counsel for the plaintiff that the plaintiff's conduct, both at the time the money was allegedly stolen and subsequently when he tried unsuccessfully to recover the money from the defendant, was consistent only with the cash having been taken without his consent. There was simply no other explanation for his behaviour.

Whether evidence establishes defendant took money

One of the probabilities suggested by counsel for the defendant was that, if taken at all, the money could have been stolen by an outsider. A large amount of evidence was led to support this argument. It is common cause that the Huntingdale property was opposite a public park to which members of the public had access and which was frequented by the public both on weekdays and weekends. Evidence was also led that the property was visible from a vacant block opposite the house and that the dividing fence separating the house from this vacant block was capable of being scaled. There was also evidence that horses were agisted on the property and that the owners had almost unrestricted access to the paddocks surrounding the house. There was also conflicting evidence as to whether the back door could be secured and, even if capable of being locked, whether it could be physically removed from its frame. The defendant gave evidence that a key to the front door was kept under a pot plant at the front of the house and that, on at least one occasion after 19 December 1998, she came home to find that the dog she had left inside the house was out and that another animal she had tied outside had been released. On the strength of this evidence it was submitted that an intruder might have entered the house while the defendant was out and stolen the money. I find I am unable to accept this submission. There was no evidence of the house having been ransacked or of any other property having been stolen at about this time. The proposition advanced by counsel for the defendant presupposes that the intruder must either have known of the whereabouts of the cash or, even if he did not, must have discovered it by chance and taken it without disturbing or removing any of the other contents of the house. This argument is, in my view, simply untenable.

If the money was not taken by an intruder the next question is whether the plaintiff has proved it is more probable that the defendant, rather than some other person who had access to the house, took the money. In considering this issue I believe the timing of the alleged theft is extremely significant. I have already mentioned how Donelle Feltham's remaining property was removed from the house on Saturday 19 December 1998. On that occasion the linen cupboard was opened and items taken from it. Apart from the plaintiff the others who had an opportunity to gain access to the linen cupboard were Donelle Feltham, Damien Powell and, of course, the defendant herself. It is certainly possible the money could have been taken by one of those persons, other than the plaintiff, on that occasion. It is equally possible that the money was taken by one of those persons, or someone else who had access to the house, on an earlier occasion. The only evidence that militates against such a finding was the plaintiff's assertion that he checked the linen cupboard and found the cash box there on Sunday 20 December 1998 which was the day after Donelle Feltham's items had been removed. This evidence, if accepted, limits the period during which the money could have been taken between Sunday 20 December 1998, when the plaintiff claimed to have last seen the cashbox, and the discovery of the theft on Thursday 24 December 1998. During that period the defendant was, according to the plaintiff and his witnesses, living alone on the property and, on her own admission, cleaned the linen cupboard on Thursday 24 December 1998 shortly before the discovery of the theft was made.
The significance of the plaintiff's evidence that he checked the linen cupboard on Sunday 20 December 1998 and found the cash box there is readily apparent. If this evidence is accepted there is a compelling case against the defendant whom, on one version of the evidence, was alone on the property during the period that followed. She would have had every opportunity to steal the money and, having cleaned the cupboard on Thursday 24 December 1998 when the theft was allegedly discovered, would undoubtedly be the prime suspect. If, however, the plaintiff's evidence on this crucial issue of when he last saw the cash box in the linen cupboard is not accepted the possibilities as to who might have taken the money become, if not unlimited, at least very wide. There was simply no evidence, apart from the plaintiff's own evidence as to the check he made on that date, of the money having been there at any earlier point in time. If the plaintiff's evidence on this crucial point is not accepted the circumstances would be such as to give rise to conflicting inferences of equal degree of probability as to who might have taken the money. Anyone who had access to the house before Sunday 20 December 1998 could have done so.
It is pertinent to ask why the plaintiff found it necessary to check whether the cash box was in the linen cupboard on Sunday 20 December 1998. There was certainly no evidence of his having carried out a similar check on any earlier occasion. When asked why he had allegedly checked to see if the money was still there on Sunday 20 December 1998 he gave an answer which, in my view, was quite unreasonable. Instead of explaining his behaviour by reference to the previous day's events when a number of people had had access to the linen cupboard, and perhaps emphasising that he simply wanted to reassure himself the money was still there, the plaintiff instead said he checked the linen cupboard because he wanted to. That was not an explanation at all. Whether the question took him by surprise, or whether he had simply never given the matter any thought before, is really irrelevant. The answer he gave was simply quite unconvincing.
I might have been able to overlook or minimise the significance of that answer had I found the plaintiff to be an otherwise credible witness. I did not, however, find him to be so. He was certainly evasive and often responded to a question by asking a question himself. He seemed reluctant to answer even the simplest of questions as, for example, what liabilities he had at the time in question. He frequently had to be reminded of his obligation to answer questions which often had to be repeated. I gained the impression that he deliberately tried to avoid answering questions he felt he did not have an immediate or plausible answer to. I also gained the impression that he often embellished his answers unnecessarily and gave the distinct impression of trying to portray significant and relevant events in the best possible light.
Given my adverse finding as to the plaintiff's credibility I am not prepared to accept his explanation as to why he allegedly checked that the cash box was present on 20 December 1998 or, indeed, that he did carry out such a check. I believe his evidence on this point was contrived and given in the knowledge that, unless the presence of the cash was established on or about that date, the finger of suspicion could not be pointed at any particular individual.
Given my finding that I cannot accept the plaintiff's evidence on this critical issue as to whether the money was still in the house between 20 December and 24 December 1998 it is really unnecessary for me to go any further. The onus of proving the more probable inference in favour of what is alleged rests on the plaintiff. There is no onus on the defendant. The truthfulness of the defendant was called into question by counsel for the plaintiff. She was cross‑examined at length and it was demonstrated, at least to my satisfaction, that she had been untruthful in an affidavit sworn in interlocutory proceedings in which she asserted that the writ of summons had never been served personally on her. There may, of course, have been a good reason for her untruthfulness other than a consciousness of guilt. She may, for example, have said what she did in order to succeed in setting aside the default judgment that had been obtained. Apart from this deliberate untruth I was not left with an unfavourable impression of her as a witness. She certainly tended on occasions to give answers that were non‑responsive but I gained the impression this was probably due to unfamiliarity with the procedure or a desire to explain events rather than evasiveness on her part. She was cross‑examined as to previous statements she had made on affidavit but, apart from the one instance I have mentioned, no material inconsistencies were revealed. But for the major flaw in her evidence to which I have already adverted I would have preferred her evidence to that of the plaintiff. As it is I need not make a specific finding as to whose evidence I prefer because, as I have already said, I find myself unable to accept the evidence of the plaintiff on the crucial issue of when the missing money was last seen.
Counsel for the defendant submitted that, even if the money was taken in the period between 20 December‑24 December 1998, the circumstances simply gave rise to conflicting inferences of an equal degree of probability as to who might have taken it. Various members of the plaintiff's family were said to have had the opportunity to steal the money and none more so than Damien Powell, the plaintiff's son, who, on the defendant's evidence, was at the property on at least three occasions during the period in question and actually spent two nights there. Since I cannot be certain to the required standard that the money was in the cupboard at the time the plaintiff claimed it was it is unnecessary for me to consider whether Damien Powell, or someone else, might have taken the money during that period.
I might mention there was certainly no evidence that the defendant's assets increased after the alleged conversion of the money or that her spending pattern changed in any way. It was suggested that she might have used the money to develop her property in Como but, on all the evidence available, the development of that property did not begin until the year 2000 when she obtained a loan from the bank.
The defendant's alleged attempts to avoid any contact with the plaintiff after the alleged theft of the money pointed, it was argued, to a consciousness of guilt on her part. I am unable to accept this submission. Her conduct subsequent to leaving the property in Huntingdale was equally consistent with that of a person who had been wrongfully accused of something very serious which she had not done and wanted at all costs to avoid an unpleasant confrontation with a determined accuser.

Conclusion

I have reached the conclusion that the circumstances do not raise a more probable inference in favour of the defendant having been the person who stole the money from the linen cupboard. While I am satisfied the money was kept in the house, and that there might have been as much as $85,000 in cash, there was no evidence I feel I could safely rely upon to establish when the money was last seen or might have been taken. Given the absence of evidence upon which a court could safely rely as to when the money was taken the circumstances do no more than give rise to conflicting inferences carrying an equal degree of probability as to who might have taken the money.
In these circumstances the plaintiff's claim cannot succeed.