R v Angus

[2000] QCA 29

SUPREME COURT OF QUEENSLAND

CITATION:

R v Angus [2000] QCA 29

PARTIES:

R
v
ANGUS, Christopher Carl
(appellant)

FILE NO/S:

CA No 340 of 1999
DC No 104 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

18 February 2000

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2000

JUDGES:

McMurdo P, McPherson and Pincus JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal allowed, conviction set aside and verdict of acquittal entered

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – LARCENY OR STEALING – PARTICULAR MODES – LARCENY BY BAILEE

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – Nintendo games and control pad hired from video shop – not returned on due date – found guilty of stealing – whether fraudulent conversion

Criminal Code (Qld) s 391(1), s 391(2)(a), s 391(6)

Fitzgerald (1980) 4 A Crim R 233, considered
R v Hally [1962] QdR 214, considered
Hansford (1974) 8 SASR 164, considered
R v Jackson (1864) 9 Cox CC 505, discussed

Lancashire & Yorkshire Railway Co v MacNicoll [1919] 88 LJKB 601, applied

R v Pear (1779) 1 Leach 212; 168 ER 209, discussed
Robert Wakeman (1912) 8 Cr App R 18, considered

COUNSEL:

Mr A Moynihan for the appellant
Mr J D Henry for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P:  I agree with the reasons for judgment of Pincus JA and wish only to make the following additional brief comments.

1. The common law meaning of conversion has been generally adopted as the meaning of "conversion" under the Criminal Code in Queensland: see R v Hally.[1]

   [1][1962] QdR 214, 228, adopting Rogers v Arnott [1960] 2 QB 244, 250-251.

1. The prosecution was unable to put forward evidence of any demand made to the appellant to return the Nintendo games and control pad: see Robert Wakeman.[2]  Nor, as Pincus JA points out, did the prosecution offer any evidence capable of showing to the requisite standard that the appellant had dealt with the goods, for example, by destroying them or discarding them, by selling or pawning them[3] or by attempting to do so.[4]

   [2](1912) 8 CrAppR 18.

   [3]R v Price (1913) 9 CrAppR 15.

   [4]Rogers v Arnott.

1. There are other weaknesses in the prosecution case but the failure to establish fraudulent taking or conversion necessitates the orders proposed by Pincus JA, with which I agree.

1. McPHERSON JA: I agree with Pincus JA. To constitute stealing under s 391(1) of the Criminal Code, there must be either a fraudulent taking or a fraudulent conversion of a thing capable of being stolen. Section 391, which is based to some extent on Stephen's draft Model Code of 1880, was designed to rid the law of many of the artificial…