Powell v the Queen
[1988] TASSC 56
•18 November 1988
Serial No 55/1988
List “A”
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
List "A"
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.
List "A"
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.
List "A"
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.
List "A"
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 business. Mrs Rowbottom had lent the appellant or invested in his business the sum of $15,000. Some time, probably towards the end of 1983, this business failed and the appellant and his wife separated. In order to try and recoup the monies advanced by Mrs Rowbottom the remaining stock of the failed business and a racing car belonging to the appellant were removed by the appellant and Mr Rowbottom from the place of business and subsequently sold by Mr Rowbottom.
In a written statement to the police the appellant referred to the $15,000 owed to his sister and the sale of the remaining stock in the business. The statement went on:
"Some months later I requested detailed information from my sister as to the prices received. After some time she presented me with her own handwritten account which totalled something like $9,700. After making some enquiries I discovered as best I could ascertain (sic) Veronica actually received much more, perhaps $20,000. I asked her for the surplus and she gave me approximately $3,000. As I believed this to be unfair on the other partners who had lost money I took the vehicle with my spare key and hid it. I told Veronica that I was holding it as a lien for the balance of the money. After approximately 9 months and realising Veronica was not going to co–operate I took the vehicle to Melbourne and sold it. I did not wish this to happen but believed that no innocent party was being hurt by my actions."
Mrs Rowbottom denied that she had ever given the appellant a key to the vehicle or permission to use it. She said that she had given the appellant the original document from the auctioneers which detailed the amount received from the sale of the spare parts; a sum of $8,088.70. She also denied that the appellant had ever pressed her for details of the sale of the spare parts salvaged from the failed business.
The Crown adduced evidence, which was not disputed that, in September 1984, approximately 9 months after the appellant removed the vehicle from his sister's home, he took it to Melbourne and there sold it to a dealer for $6,000. The appellant assumed a false name for the purpose of effecting the sale, sold the vehicle without registration plates, and produced a false document to the purchaser which purported to show that a person of the name assumed by the appellant was the lawful owner of the vehicle. The proceeds of sale were paid into a bank account of which the accused was a signatory.
In his unsworn statement the appellant referred to the loan or investment of $15,000 and the sale of the car parts and racing car. He then referred to his sister's failure to provide what he considered to be proper evidence of the proceeds of sale and said:
" ... so after numerous discussions which were going no where, between my sister and I, using my spare key given to me by my sister for when I needed transport, and after using the van one day while they were away on holiday I locked it up in my possession and told my sister by telephone firstly, and later in correspondence that I was placing a lien on the Toyota until we sorted out our financial dispute".
The appellant tendered in evidence three copies of letters which he said he had sent to his sister but she denied having received any of them. The first is dated the 10 January 1984 (about the date particularised in the indictment as the date on which the crime was committed). It read:
"Dear Veronica,
Following our telephone conversation today I confirm that I will be retaining possession of the Toyota van as I intend to place a Lien on the vehicle, due to our financial dispute.
Would you please supply me with the original figures from Tulloch Auctions, as previously requested, so that I may establish the actual position of our dispute.
I also need to know the figure that you obtained for my Falcon, or if you have not sold it yet, then it's (sic) whereabouts.
Please be advised that if you do not supply me the information requested, I intend to sell the Toyota van to pay back my mother–in–law, Mrs Lorna Edwards, who also had money in the company.
It is my understanding that there are no third parties involved in the van, i.e. insurance or finance companies. Please advise me if this is correct."
The second, dated the 30 June 1984 sought a reply to the first letter and the last, bearing date the 2 August 1984 advised that in the absence of a reply from Mrs Rowbottom within 28 days the appellant intended to sell the vehicle "for the benefit of other investors".
In his unsworn statement the appellant said, after referring to those letters:
"After approximately nine months I realised that Veronica was not going to co–operate. So after I checked to see if the vehicle was ever reported as stolen and it wasn't, I decided on this action. Thinking Veronica had accepted the situation and after writing her another final demand, which is one of these letters just tendered your Honour, dated the 2nd August, 1984. And receiving no reply I took the vehicle to Melbourne and sold it for six thousand dollars. I deposited the cheque in my mother–in–law's account, the said Mrs Lorna Berenice Edwards, I deposited in her account and also gave the Launceston post office box as the mailing address, as I wasn't concerned about the sale being traced due to quite considerable circumstances. The lien I had placed on the vehicle etc. I felt I was acting within the law. I drew this conclusion as a National Rent–a–Car Company I had worked for had cars being kept, sold or wrecked for parts all the time. We were never able to prosecute for theft as they had the company's permission to be using the vehicles. I felt I was in the same position and certainly morally in the right. That concludes my statement your Honour."
The basic defence therefore, was that the appellant had not acted dishonestly. He admitted taking the vehicle and later selling it but claimed that he believed that he was entitled to do so, because he had what he referred to as a lien arising out of the claimed failure on his sister's part to properly account to him for the proceeds of sale of the business and the racing car.
Although the Crown case alleged a dishonest taking with an intention to permanently deprive the owner in January 1984, at the conclusion of all the evidence the following possibilities arose:
1. That the appellant was guilty of stealing in January 1984.
2.That in January 1984 when the appellant took the vehicle he did not then do so dishonestly and/or did not then intend to permanently deprive his sister of the vehicle. But that his initial taking was tortious and he committed the crime of stealing when he subsequently formed the requisite guilty states of mind. See R v Riley 169 E.R. 677; Minigall v McCammon [1970] SASR 82; R v Davies [1970] VR 27; R v Sullivan, Crawford J 4065; R v Hennessey, Neasey J 1476.
3.That the appellant's initial taking of the vehicle was with the consent of the owner, as claimed in the unsworn statement, and he was therefore lawfully in possession of the vehicle as a bailee within the meaning of s226(1)(b) of the Code. But that he was guilty of the crime of stealing by a subsequent dishonest act of conversion accompanied by an intention to permanently deprive the owner of the vehicle.
4. That the appellant was not guilty.
The learned trial judge left all four possibilities to the jury. The correctness of this course having regard to the pleading in the indictment was the subject of a ground of appeal as the grounds were finally amended. However it is unnecessary to consider this ground or any other of the grounds except that which alleged:
"That the learned trial judge erred in law in failing to adequately direct the jury as to the law relating to the alleged conversion of the motor vehicle."
In his direction to the jury on this matter the learned trial judge said:
"And then there's a third possibility. If the accused took the car in January with the owner's knowledge and approval or authority to hold as security, or even merely to drive it around because he had permission to take it, if you think there's a reasonable possibility that that might be the case and that he, therefore, obtained a lawful possession of it in January because he had a general authority to use it, then it would still be theft if later on you were satisfied beyond reasonable doubt he, without the owner's consent, dishonestly converted it to his own use or to the use of some other person, such as his mother–in–law by taking it to Melbourne and selling it. So even though he may have had lawful possession of it earlier in the year because, for example, Mrs Rowbottom had allowed him to use the car and he got hold of it lawfully enough and had a key which she'd given for that purpose and he'd taken it away lawfully, but then hidden it, if subsequently he had formed the intention to convert it to his own use to deprive Mrs Rowbottom permanently of it by selling it and that he dishonestly took it to Melbourne and disposed of it over there and converted it to his own use, that too would be a case of stealing."
Section 371(j) of the Code requires a trial judge, "to instruct the jury as to the law applicable to the case". In the present case obedience to that statutory requirement demanded instruction on the law of conversion by a bailee.
In Lancashire and Yorkshire Railway Company v MacNicoll (1918) 88 LJ (KB) 601 Atkin J said at 605:
"It appears plain to me that dealing with goods in a manner inconsistent with the right of the true owner amounts to a conversion provided that it is also established that there is also an intention on the part of the defendant in so doing to deny the owner's right or to assert a right which is inconsistent with the owner's right."
His Lordship went on to say that where the act done of necessity is a denial of the owner's right or amounts to a right inconsistent with the owner's right, proof of intention is otiose. This authoritative statement was referred to with approval in Caxton Publishing Co v Sutherland Publishing Co [1939] AC 178 in which Lord Porter re–stated the principle at 202 as follows:
"Conversion consists in an act intentionally done inconsistent with the owner's right, though the doer may not know of or intend to challenge the property or possession of the true owner".
See also Oakley v Lyster [1931] 1 KBD 148 at 153.
With respect to conversion in the criminal law, Crockett J said in Peter Jackson Pty Ltd v Consolidated Insurance of Australia Ltd [1975] VR 480 at 484:
"It is clear that that [misappropriation of the goods] is constituted by a 'conversion' of the goods which in law is some act quite inconsistent with the bailer's title; see Kenny's Outlines of Criminal Law, 16th Edn. p221."
In Rogers v Arnott [1960] 2 All ER 417 Donovan J (in whose judgment the other members of the court concurred) referred with approval at p.419 to the following passages from Kenny's Outlines of Criminal Law 16th Edn p255 and Russell Upon Crime 16th Edn p1095 respectively:
"'Exactly what constitutes the "conversion", which involves the bailee in the guilt of stealing, has not been authoritatively stated. The prisoner must have possession of the goods, otherwise he would not be bailee, and then, as it would seem, any conduct on his part which shows that he assumes either the full title of ownership in the goods, or asserts a right to pass the full title of ownership, will amount to such conversion as will render him guilty of stealing them within the statute.'"
"'It is unfortunate that the term "conversion" does not appear to have been given a precise definition either judicially or in the text–books. But for the purposes of the law of larceny it is submitted that it is necessary that the offender should have possession of the goods, and that when possession has been obtained any setting up by the offender of a full title to the property in himself, adverse to that of the owner, if done without a bona fide claim of right, [dishonestly and with intent to permanently deprive the owner under s.226(1) of the Code] will render him guilty of larceny.'"
See also Bryce v The Queen (1956) 40 CAR 62.
In the present case, before the jury could convict the appellant of larceny as a bailee they would have to be satisfied beyond reasonable doubt that Mrs Rowbottom had delivered possession of the vehicle to the accused by giving him (as claimed in the unsworn statement) a spare key, (see R v Bennie [1953] VLR 583) and thereby created a bailment.
The learned trial judge referred to this element in the crime of stealing by a bailee but not in those terms. Further, he did not give any direction with respect to the possible terms of the bailment which, in my view, was necessary before the jury could properly consider what act or acts of the accused could constitute conversion. In the absence of a direction that, in law, a bailee converts the owner's goods to his use or the use of another by an act intentionally done which is inconsistent with the owner's rights, the jury were unable to decide which acts of the accused, as they found them to be, amounted to acts of conversion. They were consequently also unable to decide which, if any, such acts were accompanied by the requisite mens rea. For example, depending on the view the jury took of the terms of the bailment (if they were satisfied to the requisite degree that there was a bailment) the act of hiding the vehicle or the act of driving it to the point of departure from Tasmania to sell it could constitute conversion. In each case it would be necessary to consider whether such acts were done dishonestly and with an intention to permanently deprive Mrs Rowbottom of the vehicle. The issue of stealing as a bailee was further complicated by the fact that the sale took place out of the jurisdiction. All these matters required a direction on the law of conversion and references to the evidence illustrating which acts were capable of amounting to acts inconsistent with the owner's rights. The references in the summing up to "taking it to Melbourne and selling it" and "dishonestly [taking] it to Melbourne and [disposing] of it over there and [converting] to his own use" failed to deal with the issues the jury were required to address on a case of stealing by a bailee.
Accordingly, even if it was proper to put a case of stealing as a bailee to the jury, having regard to the pleading in the indictment, in doing so the learned trial judge, in my respectful opinion, failed to give the jury sufficient directions on the law to enable them to decide guilt or innocence on this issue in accordance with the law. For this reason I concluded that the appeal should be allowed and the conviction quashed. At the time the orders were made the appellant had served 4½ months of the imposed sentence of 12 months, the Crown made no application for a re–trial and so one was not ordered. The appellant was discharged.
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