R v Brenner - [1990] TASSC 122

Serial No B45/1990
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: R v Brenner [1990] TASSC 122; B45/1990

PARTIES:  R
  v
  BRENNER, Robert Julius

FILE NO/S:  98/1990
DELIVERED ON:  1 August 1990
JUDGMENT OF:  Neasey J

Judgment Number: B45/1990
Number of paragraphs: 12

Serial No B45/1990
List "B"
File No 98/1990

THE QUEEN v ROBERT JULIUS BRENNER

REASONS FOR JUDGMENT NEASEY J

(Ruling on No-Case Submission) 1 August 1990

The accused is charged on indictment of stealing a sum of approximately $8,100.00. The Crown case is that the bank teller, Mr Potter, intended to hand him a sum of $988.90, made up of $900.00 in $100 notes, plus smaller notes and $3.90 in coin, in exchange for 2 Bank canvas bags of coins which the accused had brought in to the Branch. Mr Potter had had the coins counted, and they came to $988.90. The teller counted out what he thought was that sum and handed it to the accused, telling him how much the coins had come to, and which he was giving him. The accused put the money in his pocket and left. However, the teller had by mistake, according to his evidence, counted out and given to the accused nine bundles each containing ten $100 notes, instead of nine single $100 notes.

Mr Potter says he did not realise the mistake he had made until some hours later, and then he sought out the accused and told him how much he had given him by mistake. According to the teller's evidence, the accused made no admissions that he knew he had received too much, or had in fact received too much, but he behaved in a way (which I need not detail here) which the Crown claims is indicative of knowledge on the part of the accused by that time that he was aware of the mistake and intended to keep the money. Mr Potter received no satisfaction from the accused and left, and shortly after placed the matter in the hands of the police.

Detectives some weeks later interviewed the accused, but he denied to them that he had received too much money in the transaction, but otherwise kept his counsel and made no admission of any kind. It is now submitted by learned counsel for the defence, Mr Wilkinson, that there is no case to answer of stealing under the Code. After discussion and argument by counsel, I granted an application by the Crown to amend the particulars to the indictment. The case relied on by the Crown at first was a taking through a mistake on the part of the owner known to the accused, under s226(2)(a)(iii); but learned counsel for the Crown says he will now rely solely upon stealing by ordinary taking, under s226(1)(a) of the Code. Nevertheless, since the former remains arguable, and is purely a matter of law arising on the evidence, I propose to rule in relation to both aspects.

Under s226(1)(a) the Crown must prove beyond reasonable doubt…

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 R v Brenner

Details

AGLC: R v Brenner [1990] TASSC 122
Case: [1990] TASSC 122
Decision Date: 1 August 1990

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of R v Brenner was heard, where the accused, Robert Julius Brenner, was charged with stealing a sum of approximately $8,100.00. The Crown alleged that the bank teller, Mr Potter, mistakenly gave the accused nine bundles of $100 notes instead of the intended nine single $100 notes, totalling $988.90. The teller did not realise the mistake until some hours later and confronted the accused, who denied any knowledge of the overpayment and refused to return the money. The defence argued that there was no case to answer under the Tasmanian Criminal Code, and the Crown amended the particulars to rely on ordinary taking under section 226(1)(a) of the Code.

The legal issues before the court were whether there was a taking without the consent of the owner and whether there was a taking through a mistake on the part of the owner known to the accused under section 226(2)(a)(iii) of the Code. The court considered whether the teller's mistake could be considered a fundamental mistake that vitiated consent and whether the accused knew of the mistake at the time of receiving the money. The court also compared the Tasmanian provisions with the common law and other Australian jurisdictions.

The court found that the teller's mistake did not vitiate the apparent consent, and the property in the money passed to the accused at the time of the transaction. The court also found that the mistake was not fundamental and that there was no evidence that the accused knew of the mistake at the time he received the money. The court ruled that there was no case to answer of stealing under either section 226(1)(a) or section 226(2)(a)(iii) of the Code. The court directed the jury to return a verdict of not guilty.

The final orders of the court were that the jury would be directed to return a verdict of not guilty, and the accused was acquitted of the charge of stealing.

Orders