R v Bedford
[2007] SASC 276
•24 July 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BEDFORD
[2007] SASC 276
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Vanstone)
24 July 2007
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - CLAIM OF RIGHT
Appellant convicted by jury of attempted robbery - dishonesty an element of offence which must be established by prosecution - whether appellant acted dishonestly in committing offence - nature of defence of claim of right - whether appellant had a belief in a legal right to property - belief in a moral right to property does not establish claim of right - whether prosecution had sufficiently negated defence of claim of right - claim of right may be based on unfounded and unrealistic view - claim of right an element for the jury to consider.
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP - OTHER MATTERS
Appeal against conviction - appellant convicted by jury of charge of attempted robbery - trial judge removed consideration of defence of claim of right from jury - whether trial judge correct to withdraw defence - claim of right relevant to the element of dishonesty which must be established by prosecution - Held: Appeal allowed by majority. Conviction set aside and retrial ordered.
Controlled Substances Act 1984 s 31, s 32; Controlled Substances (Prohibited Substances) Regulations 2000 Schedule 1; Criminal Law Consolidation Act 1935 s 131, s 137(2), s 270A(1); Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002 ., referred to.
R v C, MM [2002] SASC 21; The Queen v Lanhgam (1984) 36 SASR 48; R v Pollard [1962] QWN; R v Sanders (1991) 57 SASR 102; The Queen v Lopatta (1983) 35 SASR 101; Van Den Hoek v The Queen (1986) 161 CLR 158; Walden v Hensler (1987) 163 CLR 561, applied.
R v Fuge (2001) 123 A Crim R 310; R v Sabbah [2004] NSWCCA 28; Harris v Harrison [1963] Crim LR 497; The King v Bernhard [1938] 2 KB 264, distinguished.
R v BEDFORD
[2007] SASC 276Court of Criminal Appeal: Duggan, Gray and Vanstone JJ
DUGGAN J. The relevant facts of this matter are set out in the judgment of Gray J.
The sole ground of appeal complains that the trial judge removed from the jury’s consideration the issue of claim of right.
The appellant was charged with the offence of attempted aggravated robbery. The jury found him not guilty of that charge, but guilty of the alternative charge of attempted robbery. In order to commit the latter offence an accused person must act dishonestly. Section 131 of The Criminal Law Consolidation Act 1935 (“the CLCA”) provides that:
A person’s conduct is “dishonest” if the person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting.
Section 131(5) of the CLCA provides that:
The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way.
As dishonesty is an element of the offence it is necessary for the prosecution to prove the absence of a claim of right as defined in the CLCA.
The trial judge gave the following directions on this issue:
There is a principle of law that if the accused had a genuine belief in a legal entitlement to the property which he or she takes, then the element of dishonesty would not have been proved beyond reasonable doubt. The Crown must prove beyond reasonable doubt that the accused had no such genuine belief. The belief does not have to be reasonable and it does not have to be justified in law. For example, you may believe that somebody owes you money. The law, which can be quite technical in these things, may say “No, that’s not right, he doesn’t owe you money”, but if you have a genuine belief that you are legally entitled to the money, then it could not be proved that you acted dishonestly by taking it. That is what the law calls a claim of right.
In this case, the accused asserted and you heard Ms David say this in her address, that he had a genuine belief that he was entitled to his $100 back, or another deal of heroin because of the fact that [the shopkeeper] sold him heroin the night before that was of bad quality or was underweight or both.
I direct you, as a matter of law, that even if you have a reasonable doubt about whether this may have been so - and that, of course, is a matter for you - that is no answer to the charge that he was acting dishonestly - because I am sure you will appreciate this - the sale and purchase of heroin is illegal. The law does not recognise any obligations arising out of such a transaction. Such a belief cannot amount to a belief, even if it is a genuine belief, that he had a legal entitlement to the money. I emphasise that word. It must be a belief that there is a “legal” entitlement, not an illegal one.
Counsel for the DPP conceded on appeal that these directions contained a misdirection on the law. The essence of a claim of right in the context of the criminal law is a belief in a legal right. A mistaken belief may nevertheless constitute a belief for the purposes of the legislation. The trial judge directed the jury that, even if the appellant had a genuine belief in his legal entitlement to the money, it could not avail him because the law does not recognise such a right in an illegal transaction. The effect of the direction was to remove the defence in this respect from the consideration of the jury.
In order to address the consequences of this error of law in the present case, it is necessary to have regard to the nature of the defence of claim of right.
It is apparent that the statutory provision is based on the common law. Considerations relevant to the defence of claim of right were discussed in The Queen v Langham[1]. The appellant in that case purchased a cross-bow from a sports store. Subsequently he returned it to the store and requested a refund. He was told that it was not the policy of the store to give refunds in these circumstances, but that he would be given a credit so that he could make other purchases. He then purchased a shotgun using part of his credit for the purpose. A credit balance of $301 remained. Later, he returned to the store brandishing the shotgun and demanding the balance of the credit in cash. He was then given the amount of the credit. He gave evidence on oath and claimed he had an entitlement to the money which he took. He appealed against his conviction for armed robbery.
[1] (1984) 36 SASR 48.
The defence of claim of right was addressed in the summing-up, but the Court of Criminal Appeal decided that the jury were misdirected on the issue. The conviction was quashed.
The following observations were made by the court:
1 The claim of right must be bona fide, but it need not be reasonable.[2]
2The claim of right need have no foundation in law or fact in order for it to provide a defence.[3]
3The belief in the claim of right is concerned with entitlement to the property. It need not extend to a belief in the right to take the actual measures which were used to obtain the property.[4]
4The measures which are used (eg. violence) may constitute another offence or other offences.
5The accused is not required to give evidence as to his belief in the terms used in the definition of larceny, “but in layman’s terms from which the inference can reasonably be drawn that he believed he was entitled to possession of the property”.[5]
[2] Ibid per King CJ at 49. See also Glanville Williams, Criminal Law (2nd ed) at 323.
[3] Ibid per King CJ at 53; see also R v Lopatta (1983) 35 SASR 101 at 107.
[4] 36 SASR 48 at 51.
[5] 36 SASR per Johnston J at 64.
It is against this background that the facts must be considered in order to determine whether the trial judge was required to leave this issue to the jury.
The appellant was 30 years of age at the time of the offence. He was employed at a motor repair shop. It is apparent that he was addicted to heroin which he consumed on a daily basis. He said he obtained the drug from various dealers and that the shopkeeper was one of his regular suppliers.
He gave evidence that on the night before the alleged offence he obtained a “cap” of heroin from the shopkeeper. The appellant said this heroin was not as good as his usual supply from the shopkeeper and that it was “undersize by a fair amount”.
The appellant said he went to the shop to get his money back or more heroin. He said it was when the shopkeeper refused, that he tried to take the money from the till.
The appellant said he told the shopkeeper “You owe me the heroin”. He said when the shopkeeper refused, he (the appellant) reached towards the till in order to try and take his money back. The appellant said he believed that the shopkeeper owed him the money. He concluded his evidence-in-chief by saying that he believed that either the heroin or the money was owed to him. He was not asked any questions in cross-examination about his belief.
The issue for this court is whether “on the version of events reasonably open to the jury and most favourable to the case for the appellant”[6] a jury acting reasonably might not be satisfied beyond reasonable doubt that the prosecution had negatived the defence of claim of right, and so failed to prove that the appellant acted dishonestly.[7]
[6] R v C,MM [2002] SASC 21 at [41].
[7] See also Van Den Hoek v The Queen (1986) 161 CLR 158 at 162.
In considering the application of this test, it is appropriate to bear in mind that the concept of claim of right is inextricably bound up with the requirement that an accused person act dishonestly in the case of any offence requiring proof of theft. In other words, the absence of a claim of right as defined in the CLCA is an essential element of the offence of attempted armed robbery.
As has been pointed out, there is no requirement for a lay person to describe any such claim in formal language. The appellant spoke in evidence about being owed the money and that he believed the money was owed to him. This evidence was untested. One of the interpretations available on what the appellant said is that, in his mind, he was legally entitled to the money which he attempted to take. The cogency of that claim is another question, but it is a question for the jury.
The fact that the original transaction alleged by the appellant involving the purchase of a drug was an illegal transaction is an important consideration and would be of particular relevance to the jury’s determination as to whether the belief was honestly held. However, it is of more limited relevance in determining whether the issue should have been left to the jury. It has been pointed out that a claim of right can be based on an unfounded and unrealistic view. In Walden v Hensler[8] Brennan J referred to the common law view summarised by Stephen J, History of the Criminal Law of England[9]:
Fraud is inconsistent with a claim of right made in good faith to do the act complained of. A man who takes possession of property which he really believes to be his own does not take it fraudulently, however unfounded his claim may be. This, if not the only, is nearly the only case in which ignorance of the law affects the legal character of acts done under its influence.
[8] (1987) 163 CLR 561 at 570.
[9] (1883), Vol 3, Ch XXVIII p 124.
In the same case Brennan J quoted with approval the following comments by Gibbs J (Stanley and Hanger JJ agreeing) in R v Pollard[10]:
An accused person acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is doing. A belief that he may acquire a right in the future is not in itself enough.
. . . It is not to the point that the accused had no right to take the vehicle. If he had honestly believed that he was entitled to take it, or if the jury had a reasonable doubt whether he had such a belief, he should have been acquitted, however wrong his belief may have been, and however tenuous and unconvincing the grounds for it may seem to a judge.
[10] [1962] QWN at 29.
In the light of these matters and the crucial role which a claim of right might play in deciding whether the element of dishonesty has been proved by the prosecution, care is necessary in deciding whether the issue should be left to the jury. In R v Pollard Gibbs J underscored this consideration when he said[11]:
It is well settled that a claim of right sufficient to relieve a person of criminal responsibility need only be honest and need not be reasonable (Clarkson v Aspinall; Ex parte Aspinall ([1950] St R Qd 79 at 89)); “the fact that it is wrongheaded does not matter”: R v Gilson and Cohen ([1944] 29 Cr App R 174 at 180). In Rex v Bernhard ([1938] 2 KB 264 at 270) the Court of Criminal Appeal said that a person has such a claim of right “if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact.” At page 272 the court said:
“However strong and however well justified may be a judge’s view that there is a preponderance of evidence against the defence of a claim of right, the question whether that defence is negatived by the evidence must be left as a question of fact to the jury.”
[11] Ibid at 29.
This is not to say, of course, that the issue must be left to the jury in the event of a request by the defence.[12] However, applying the test referred to in [17] I have reached the conclusion that the issue should not have been withdrawn from the jury’s consideration. As claim of right is relevant to an issue which must be proved by the prosecution, it is my view that the appeal must be allowed, the conviction set aside and a retrial ordered.
[12] R v Fuge (2001) 123 A Crim R 310; R v Sabbah [2004] NSWCCA 28.
GRAY J.
This is an appeal against conviction.
The appellant, Kristian Mark Bedford, was charged with the offence of attempted aggravated robbery contrary to sections 137(2) and 270A(1) of the Criminal Law Consolidation Act 1935 (SA). The appellant was tried before a jury. He was acquitted of this charge. However, he was convicted of the alternative charge, at common law, of attempted robbery.
An element of the offence of attempted robbery is theft or stealing. To constitute theft, and therefore robbery, the property must be taken dishonestly and without a bona fide claim of right.
The prosecution case was that the appellant entered a grocery store at night wearing a stocking over his head, armed with a screwdriver, and attempted to steal money from the proprietor’s cash register.
The shopkeeper gave evidence that a man came into his shop with a dark stocking over his head, wearing a yellow windcheater and black tracksuit pants, and carrying a screwdriver. On the prosecution case, the facts were as follows. The shopkeeper activated the alarm when he saw the man in the shop as he approached the counter. The man pointed the screwdriver at him and demanded that he take all the money from the till. The man then said that if the shopkeeper did not hand over the money, he would kill him. When the shopkeeper said “No”, the man thrust a screwdriver at him. There was a struggle. The shopkeeper called his wife and told her to go outside and yell out. She did so, and the man then dropped the screwdriver and ran outside. The shopkeeper’s wife gave evidence consistent with this account.
The shopkeeper observed drops of blood on the counter, which he said were not there before the man entered the shop. Photographs of the blood on the counter were tendered at trial. The test results from the Forensic Science Centre showed that in relation to four of the samples, the source was one billion times more likely to be the appellant’s than another unknown, unrelated person. Counsel conceded at trial that it was the appellant’s blood that was found at the crime scene by police and tested at the Forensic Science Centre.
The appellant gave evidence at trial. The defence case was that the shopkeeper was known to the appellant. On the defence case, the shopkeeper had sold the appellant heroin on previous occasions. The appellant claimed at trial that, on the night before the alleged offence, he had purchased heroin from the shopkeeper for $100. He believed that the heroin was of poor quality, as it made him sick more quickly than usual, and also that it was underweight. The appellant claimed that he returned to the store to seek the replacement of the heroin or a refund of his $100. The appellant said that he was wearing a yellow windcheater and black tracksuit pants, which corresponds to the shopkeeper’s account of the man who entered the shop. The appellant, however, said that he was not wearing a stocking on his head, and nor was he carrying a screwdriver. When the shopkeeper refused to refund the $100 or supply more heroin, an argument developed. The appellant said that he pushed the shopkeeper and tried to take the money from the till. There followed more pushing and shoving, with the appellant holding or pushing with his right hand and trying to get the money with his left hand. The appellant said that he then felt a sharp pain and realised that the shopkeeper had stabbed him in the hand with a screwdriver. He said he grabbed the blade, wrestled it from the shopkeeper’s grip and then threw it away. He then made a further attempt to get the money from the till and pushed the shopkeeper.
The appellant claimed that he then saw and heard the shopkeeper yell something in Vietnamese and a woman ran out of the shop. The appellant told the shopkeeper that he was going to wait there for the police to arrive so that the shopkeeper could “get done” for dealing heroin. The shopkeeper responded that there was no heroin there anymore because his wife had left the shop with the heroin. The appellant then left.
The appellant claimed at trial that he believed the money that he tried to take from the cash register was money owed to him. The appellant said he believed the shopkeeper owed him money and when he reached for the cash register he was trying to “open the till to get my money back”.
There was no cross-examination of the appellant about his claimed state of mind when he attempted to take the money from the cash register.
The trial Judge directed the jury that the appellant’s belief that he was owed $100 was no answer to the charge that he was acting dishonestly. The Judge directed the jury that such a belief, even if genuine, could not amount to a belief that the appellant had a legal entitlement to the money. The direction was in the following terms:
I direct you, as a matter of law, that even if you have a reasonable doubt about whether this may have been so – and that, of course, is a matter for you – that is no answer to the charge that he was acting dishonestly – because I am sure you will appreciate this – the sale and purchase of heroin is illegal. The law does not recognise any obligations arising out of such a transaction. Such a belief cannot amount to a belief, even if it is a genuine belief, that he had a legal entitlement to the money. I emphasise that word. It must be a belief that there is a ‘legal’ entitlement, not an illegal one.
[emphasis added]
On appeal, it was complained that the trial Judge erred in withdrawing from the jury’s consideration the appellant’s defence of a claim of right.
Legal Principles
At common law the existence of a claim of right, if accepted, denies a dishonest intent in dealing with property. Consequently, a claim of right may operate as a good defence to the offences of attempted aggravated robbery and attempted robbery as the elements of both offences include a dishonest dealing with property. That is, the claim of right denies the existence of the mental element necessary for those offences. This is a mental element that the prosecution must prove beyond reasonable doubt.[13]
[13] The Queen v Langham (1984) 36 SASR 48 per King CJ at 53; R v Sanders (1991) 57 SASR 102 per King CJ at 150 and the authorities cited therein.
In Fuge,[14] Wood CJ at CL set out the elements of a claim of right at common law as follows:[15]
[14] R v Fuge (2001) 123 A Crim R 310.
[15] R v Fuge (2001) 123 A Crim R 310 at [24] (references omitted).
A review of the authorities shows that:
(a)the claim of right must be one that involves a belief as to the right to property or money in the hands of another …;
(b)the claim must be genuinely, ie, honestly held, it not being to the point whether it was well founded in fact or law or not …;
(c)while the belief does not have to be reasonable …, a colourable pretence is insufficient …;
(d)the belief must be one of a legal entitlement to the property and not simply a moral entitlement …;
(e)the existence of such a claim, when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it …;
(f)the claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, of which Langham and Lopatta provide examples; although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them …;
(g)the claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches …;
(h)in the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders, since there can be no accessorial liability unless there has in fact been a foundational offence …, and unless the person charged as an accessory, knowing of the essential facts which made what was done a crime, intentionally aided, abetted, counselled or procured those acts …;
(i)it is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury ….
With the passing of the Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002, the law with respect to offences of dishonesty was, in effect, codified. The definition of “dishonesty” as contained in the Act included a statutory definition of the defence of claim of right. It was accepted by both counsel that this section governed the present case. That definition is now contained in section 131 of the Criminal Law Consolidation Act1935. It provides -
Dishonesty
(1)A person’s conduct is dishonest if the person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting.
(2)The question whether a defendant’s conduct was dishonest according to the standards of ordinary people is a question of fact to be decided according to the jury's own knowledge and experience and not on the basis of evidence of those standards.
(3)A defendant’s willingness to pay for property involved in an alleged offence of dishonesty does not necessarily preclude a finding of dishonesty.
(4) A person does not act dishonestly if the person—
(a) finds property; and
(b) keeps or otherwise deals with it in the belief that the identity or whereabouts of the owner cannot be discovered by taking reasonable steps; and
(c) is not under a legal or equitable obligation with which the retention of the property is inconsistent.
(5)The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way.
Example
A takes an umbrella violently from B honestly but mistakenly believing that B has stolen A’s umbrella and that A is entitled to use force to get it back. In fact, it belongs to B. A is charged with robbery. A cannot be properly convicted on this charge because of his honest but mistaken belief (however unreasonable). However, he may still be guilty of an assault.
(6)A person who asserts a legal or equitable right to property that he or she honestly believes to exist does not, by so doing, deal dishonestly with the property.
Example
A takes an umbrella violently from B honestly believing that the umbrella belongs to A and that A is entitled to possession of the umbrella (but knowing that she is not entitled to use force to get it back). The assertion of that possessory right (whether or not correctly founded in law) is not dishonest (and therefore cannot amount to theft) although the means used to get the umbrella back may well amount to some other offence.
The second reading speech introducing the Criminal Law Consolidation (Offences of Dishonesty) Amendment Bill indicated that it was Parliament’s intent that the common law defence of claim of right be enacted in statutory form. The respondent contends that the combined effect of section 131(5) and (6) achieved this purpose.[16]
[16] South Australian, Parliamentary Debates, House of Assembly, 29 May, 2002 at 361-368 (The Hon. M J Atkinson).
Consideration of the Issues
Counsel for the Director of Public Prosecutions (DPP) submitted that the plain meaning of the words contained in section 131(5) and (6) and their operative effect did not require that a jury be satisfied that the claim of right asserted was one which in fact is recognised by the law. It was said that this accorded with the decision of the majority in Lopatta[17] and as accepted by all members of the Court in Langham.[18] In Lopatta, Legoe J observed:[19]
Of course the apparent “legality” of the reason expressed by the believer may be so dubious that it may lead any reasonably minded juror to reject the belief as unbelievable or totally unreal. That is a question of fact for the jury. But the claim of right should still be left to the jury.
[17] The Queen v Lopatta (1983) 35 SASR 101 at 108-9 (White J), 121 (Legoe J), cf Wells J at 103.
[18] The Queen v Langham (1984) 36 SASR 48 at 49, 55-56, and 65.
[19] The Queen v Lopatta (1983) 35 SASR 101 at 121.
It was further contended that the words contained in section 131(5) and (6) sought to draw a distinction between legal and equitable rights or entitlements, and moral rights or entitlements, as did the common law. A moral right or entitlement will not ground a claim of right.[20]
[20] R v Fuge (2001) 123 A Crim R 310 at [24]; Harris v Harrison [1963] Crim LR 497; R v Sabbah [2004] NSWCCA 28 at [105]; The King v Bernhard [1938] 2 KB 264.
In the present case, the direction given by the Judge withdrew from the jury’s consideration the appellant’s asserted defence of a claim of right. It should be immediately pointed out that the direction contained a misstatement of the legal position – a genuine but misconceived belief in a legal entitlement is sufficient. However, as the defence of claim of right was withdrawn by the Judge, the issue on appeal is whether on the evidence the Judge was correct to withdraw the asserted defence of a claim of right from the jury.
Counsel for the appellant drew attention to the following passages in the appellant’s evidence-in-chief. This evidence was not subject to cross-examination:
Q. Was there any discussion about the $100.
A. Yes, I said ‘Are give me my money back?’.
Q. Why did you think he should give you your money back.
A.Because it was no good and every other previous time I had scored off him it was a lot better.
Q. Did you believe he owed you that money.
A. Yes, I did.
…
Q. When you reached for the till what were you trying to do.
A. Open the till to get my money back.
Q. Why did you think that you were entitled to do that. Why did you do that.
A.Because the heroin I had bought off him was very poor quality and I shouldn’t have had to pay the amount of money I did for what I received.
Q. Did you believe that he owed you that money.
A. Yes, I did.
…
Q. When you reached for the till were you reaching to get money.
A. By that stage I lost my temper and, yes, I was reaching for money at that stage.
Q. Did you believe that that money was owed to you.
A. Yes, either heroin or money was owed to me, yes.
Q. Why did you believe that money was owed to you.
A. Because he had sold me a bad deal the night before.
Counsel for the appellant submitted that the effect of this evidence was that at the relevant time the appellant had a belief he had a legal entitlement to the money that he attempted to remove from the cash register. The appellant claimed he was owed money for goods sold to him, which goods were not of a satisfactory quality. It was contended that this was an assertion of legal entitlement made in lay terms. It was said not to be to the point that the claim of right arose from an illegal transaction or that the claim could not be enforced in the civil courts. What was important was that the belief was genuinely held. Counsel for the appellant submitted that the question of whether the appellant in fact genuinely believed that he was legally entitled to the money owed from an unlawful transaction was a matter to be determined by the jury. It was then pointed out, as discussed above, that the direction of the trial Judge was an error.
Counsel for the DPP submitted that the trial Judge was correct to withdraw the asserted defence of a claim of right from the jury. It was submitted that it was not to the point whether the appellant had an enforceable claim at law. It was accepted by counsel for the DPP that if the evidence gave rise to the possibility of a relevant and genuine belief, it was for the prosecution to satisfy the jury beyond a reasonable doubt that the appellant did not have such a belief.
Counsel for the DPP submitted that there was no evidence indicating that the appellant believed that the professed right was enforceable by law. Accordingly, it was said the defence of claim of right could not succeed and that the issue was properly withdrawn from the jury. As earlier observed, it was not to the point that the issue had been withdrawn for a different reason.
Counsel for the DPP drew attention to the decision of the New South Wales Court of Criminal Appeal in Sabbah.[21] In that case the Court was concerned whether there was evidence indicating that the appellant believed that he was acting pursuant to a claim of right. Ipp JA observed:[22]
Heydon JA said in Fuge (at [2]) that the proposition “that a person who claims to be owed arrears of wages after being dismissed by an employer has a defence to a charge of robbing the employer of cash not exceeding the claimed arrears” is “astonishing”. His Honour said that the statements in other intermediate courts of appeal which justify this proposition call for reconsideration by this Court in a suitable case, there being no High Court decision preventing that course. I share his Honour’s surprise. In this case, the argument is similar to that advanced in Fuge. Indeed, it is more extreme as it involves the appellant acting as the collecting agent of Abraham. It is, however, unnecessary to examine the legal merits of the submission as I am satisfied that the evidence did not require her Honour to give any direction, as sought, to the jury.
The appellant did not testify and did not assert any particular belief by him. This, of course, is not fatal but it is a factor to be borne in mind. The appellant’s argument must rest on inference.
While there may be sufficient evidence to infer that the appellant, in committing the offences of which he was found guilty, was conducting himself on behalf of and in the interests of Abraham, there is simply no evidence that he believed, first, that Abraham had a legal entitlement to money from Mogilevsky. While Abraham appears to have conducted a legitimate business in one respect, it seems that he was also involved in drug dealing as the leader of a criminal gang. There is nothing to suggest that Mogilevsky’s debt to Abraham was in respect of a lawful transaction. Thus, there was insufficient evidence to draw an inference that the appellant believed that Abraham had a lawful entitlement to money from Mogilevsky.
[21] R vSabbah [2004] NSWCCA 28.
[22] R vSabbah [2004] NSWCCA 28 at [103]-[105].
Although this decision is readily distinguishable from the facts in the present case, it does underscore a difficulty facing the appellant. On the appellant’s case he had been involved in transactions concerning heroin with the shopkeeper over a period of time. He was well aware of the illegality of that conduct. This was evident from evidence that he gave at trial, in particular his threat that if the shopkeeper did not pay him the money or provide further heroin he would inform the police and have the shopkeeper arrested for drug dealing. This evidence demonstrates that in the appellant’s mind he was not contemplating any right enforceable at law. Rather he was contemplating some pressure and coercion – threatening to call the police to have the shopkeeper’s drug dealing disclosed and expose both of them to criminal charges arising from their joint illegal activities.
It is relevant to observe that taking part in the sale of heroin is a very serious criminal offence under the provisions of the Controlled Substances Act 1984 (SA), in particular sections 31 to 32.[23] Depending on the weight involved, a punishment as severe as life imprisonment may be imposed. The courts throughout Australia treat any commercial dealing with heroin as a very serious criminal offence which almost invariably leads to a lengthy term of imprisonment. In these circumstances it is difficult to understand how a person involved in such a transaction would believe that they had a legally enforceable right arising out of the transaction. This is particularly so in the case of a person regularly involved in such criminal activity. It may be possible to contemplate a rare case where such a belief might arise, but given the serious criminality involved it would require cogent evidence to be before the court in support of such belief.
[23] Heroin (Diacetylmorphine) is listed as a Declared Prohibited Substance in Schedule 1 of the Controlled Substances (Prohibited Substances) Regulations 2000 (SA).
In the passages from the evidence referred to above, it is to be acknowledged that the appellant spoke of wanting his money, of wanting unadulterated heroin and of wanting moneys owed to him. However, this evidence fell well short of supporting any reasonable inference that the appellant had at the time the relevant mental state, that is, an honest but mistaken belief of a legally enforceable right arising out of an earlier transaction involving heroin. His state of mind was that he and the shopkeeper were liable to be arrested and charge with criminal offending. This was evidenced by his threat to expose their joint illegal conduct to the police.
In these circumstances there was no evidence of a claim of right sufficient to call for the jury to consider the appellant’s claim. As earlier observed, the Judge withdrew that aspect of the case from the jury for a different reason and one that involved an erroneous view of the law. However, no prejudice in the circumstances arose. The issue on appeal is whether there was evidence fit to go before the jury to support the defence of a claim of right. There was not.
In these circumstances this appeal should be dismissed.
VANSTONE J: In my view this appeal must be allowed. I agree with the reasons of Duggan J for so finding and would only add the following.
The evidence upon which the defence of claim of right was based was very concise. The appellant asserted that at the time he attempted to reach into the shopkeeper’s till and remove money he believed that the shopkeeper owed him either another cap of heroin to replace that which he had bought from him the previous night, or the return of the $100 purchase price.
It might be thought that this evidence-in-chief provided a slim basis indeed for the leaving of the issue to the jury. It is true that the answers given by the appellant were not framed in terms of a claim “by reference to some supposed operation of the law”: Walden v Hensler (1987) 163 CLR 561 per Gaudron J at 608. However, it would be unrealistic to expect that such claims would always be couched in terms of legal entitlement. Had there been cross-examination of the appellant on this issue it would likely have elucidated the character of the asserted belief and probed its genuineness. However, to make that observation is not to deny that the passages of examination-in-chief were sufficient to raise the issue for the jury’s consideration.
This situation is to be contrasted with those that pertained in R v Fuge (2001) 123 A Crim R 310 and R v Sabbah (2004) NSWCCA 28. In those cases there was no direct evidence at all establishing a claim of right and no basis for leaving it to the jury.
I consider there is no alternative but to quash the conviction and order a re-trial.
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