Powell v the Queen - [1988] TASSC 56

Serial No 55/1988
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COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Powell v The Queen [1988] TASSC 56; A55/1988

PARTIES:  POWELL
  v
  THE QUEEN

FILE NO/S:  CCA 43/1988
DELIVERED ON:  18 November 1988
JUDGMENT OF:  Neasey, Nettlefold and Underwood JJ

Judgment Number: A55/1988
Number of paragraphs: 27

Serial No 55/1988

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File No CCA 43/1988

POWELL v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:

NEASEY J

NETTLEFOLD J

UNDERWOOD J

18 November 1988

ORDERS OF THE COURT:

On 25 August 1988, the Court made the following orders:

1 Appeal allowed.
2 Conviction quashed.
3 Applicant discharged.

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File No CCA 43/1988

GERALD VINCENT POWELL v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:

NEASEY J

18 November 1988

I agree with the reasons and conclusion of Underwood J.

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File No CCA 43/1988

POWELL v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:

NETTLEFOLD J

18 November 1988

I have read the reasons for judgment prepared by Underwood J. I agree with them.

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File No CCA 43/1988

GERALD VINCENT POWELL v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:

UNDERWOOD J

18 November 1988

At the conclusion of the hearing of this appeal the court ordered that the appeal against conviction be allowed and the conviction quashed. The members of the court stated that reasons would be given later and I now publish my reasons for the making of those orders.

The appellant, who was unrepresented by counsel at the trial, was convicted of one count of stealing contrary to s234 of the Criminal Code. The indictment provided that the appellant was charged with:

"STEALING – contrary to Section 234 of the Criminal Code.
Particulars
VINCENT GERALD POWELL at Launceston in Tasmania on a day unknown between on or about the 7th day of January, 1984 and on or about the 8th day of January, 1984 stole a motor vehicle registered number BQ 0142 the property of Veronica Jane Rowbottom."

The Crown case, based on s.226(1)(a) of the Code was that, on a day between the 7 and 8 January 1984 (which is a little curious as there is no such day), the appellant, without the consent of the owner, dishonestly took a motor vehicle with the intention of permanently depriving the owner of that vehicle. Briefly, the evidence adduced in support of the Crown case was that the accused's sister, Mrs Rowbottom, was the owner of a Toyota Lite Ace motor vehicle. On Boxing Day 1983 Mrs Rowbottom, her husband and their children went on holiday leaving the Toyota vehicle locked up in the carport at their home in Launceston. According to Mr and Mrs Rowbottom they took with them the only two sets of keys to this vehicle. On their return home three weeks later they found the vehicle had gone.

It was common ground at the trial that, prior to 1984, the accused had carried on a car rental and car accessory…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Powell v the Queen

Details

AGLC: Powell v the Queen [1988] TASSC 56
Case: [1988] TASSC 56
Decision Date: 18 November 1988

CaseChat Overview and Summary

The case of Powell v The Queen was heard in the Supreme Court of Tasmania Court of Criminal Appeal. The appellant, Gerald Vincent Powell, was convicted of stealing a motor vehicle belonging to Veronica Jane Rowbottom. The court was required to determine whether the appellant's actions constituted theft under the Criminal Code and whether the trial judge properly directed the jury on the legal principles involved. The primary issue was whether the appellant's belief in a lien on the vehicle negated the requisite mens rea for theft and whether the trial judge adequately instructed the jury on the law of conversion by a bailee.

The court found that the trial judge erred in not providing sufficient direction to the jury on the law of conversion by a bailee. The judge's direction did not adequately explain how acts done by a bailee could amount to conversion, which is essential to determine if those acts were done dishonestly and with the intention to permanently deprive the owner of the vehicle. The court held that without proper instructions, the jury could not properly assess the appellant's actions against the legal criteria for theft, specifically as it pertained to the concept of conversion by a bailee. Consequently, the court concluded that the conviction should be quashed due to the inadequacy of the jury's direction on the law.

The appeal was allowed, the conviction was quashed, and the appellant was discharged. The court did not order a retrial as the appellant had already served a portion of his sentence and the Crown did not apply for a retrial.

Orders