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

1. 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.

1. 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.

1. 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.

1. Under s226(1)(a) the Crown must prove beyond reasonable doubt that the accused took the excess money, that being a thing capable of being stolen, without the consent of the owner, dishonestly, and with intent permanently to deprive the owner thereof. Section 226(2) provides, inter alia, that "takes" includes obtaining possession "through a mistake on the part of the owner, if the the taker knows of such mistake". But whether the taking be of the ordinary kind, namely a taking and carrying away or asportation, or of the statutory kind by way of mistake on the part of the owner, it must be a taking without the consent of the owner. Here the Tasmanian Code differs from the relevant Queensland Code provisions, which are modelled on the 1879 Draft Code in this respect, whereas our Code provisions respecting larceny are closer to the common law formulation, and are evidently taken from the Larceny Act 1916 of the United Kingdom – see Ilich v The Queen 162 CLR 110, at p122, per Wilson and Dawson JJ; p135, per Brennan J; and the 1879 Draft Code s246. That is to say, absence of consent of the owner is an element of the crime of stealing, whereas under the Queensland and Western Australian Codes it is not. I shall consider first whether there could in the circumstances of the present case be a taking in the ordinary sense, without the consent of the owner.

1. Ilich v The Queen (supra) though it deals with an appeal which arises out of the larceny provisions of the Western Australian Code, and is thus not strictly binding on me in this case, does expound and set out principles which are determinative of the questions being considered here. Briefly the facts were that a debtor paid out a creditor who had been working for him. He claimed he put out more money than the creditor was entitled to, not intending the creditor should take it, but the creditor did take and keep it. He gave evidence he believed he was entitled to do so. He was charged with stealing the excess. The appeal turned on whether the trial judge's directions to the jury were correct. Wilson and Dawson JJ in a joint judgment, Brennan J separately, and Deane J agreeing in the main with the joint judgment, expound the following propositions. First, where at common law and under the Larceny Act 1916 of the United Kingdom, it is an element of the crime of larceny that the taking must be without the consent of the owner, who for that purpose includes the person in possession, it must be shown that the circumstances would sustain an action for trespass. If that is not so, but on the contrary the goods were passed over voluntarily by the owner with the intention that the ownership of the goods should pass, then ordinarily it does, and there is no larceny. The principle was expressed by Bramwell B in his judgment in Reg v Middleton (1873) LR 2 CCR 38, at pp54–55, cited by Brennan J in Ilich (supra) at pp136–137, as follows –

"... where the dominus has voluntarily parted with the possession, intending to part with the property in the chattel, it has never been held that larceny was committed, whatever fraud may have been used to induce him to do so, nor whatever may be the mistake he committed; because in such case the dominus is not invitus."

1. That view was part of the minority opinion in Middleton, but as Brennan J points out in Ilich, (at p137, and see also, Wilson and Dawson JJ at p126, and Deane J at p143), the weight of Australian authority favours the minority in Middleton.

1. Secondly, there are particular rules relating to money, as distinct from other goods, due to its special characteristics as a medium of exchange – per Wilson and Dawson JJ ibid, at p128. Their Honours say –

"With goods other than currency, property does not pass with possession unless it is the owner's intention that it should and it has been held (not without some difficulty) that it is possible to conclude in cases of over–delivery that appropriation of the whole of the goods involves the theft of the excess goods without any need to identify them (cases cited). However, where property passes with possession, as with currency, no such conclusion is possible with an amount overpaid."

– ibid, at p129. That is because there is a prima facie rule that when a person passes over money in the form of currency, intending to pass ownership of it, and the other receives it with the same intention, ownership passes.

1. There are, however, exceptions. With money as with goods, one is that apparent consent to the handing over may be negatived if it can be shown that it was done under a "fundamental" mistake. Such a mistake in relation to property, including money, "must relate to the knowledge of the owner of the property as to what he is doing, what the property is, and to whom he is transferring possession or ownership (to adapt the test applied by Nicholls CJ in (R v) Goodrick, [1922] Tas LR 36)" – Ilich, per Brennan J at pp139–140. Knowing "what he is doing" means, in my view, knowing the true nature of the transaction he is performing. There are other exceptions relating to money, but they have no application here – ibid, at p141.

1. In the present case the teller as an officer of the Bank of course had authority to hand over notes in exchange for coin. The nature of the transaction was that for mutual consideration the Bank undertook to exchange with its customer, the accused, currency in the form of banknotes plus incidental change for the equivalent value of currency in a different form, namely coin. There was no fundamental mistake made in connection with the transaction. The teller knew what he was doing, there was no mistake as to the identity of the receiver, nor as to the fact that he was handing over $100 banknotes. The only mistake was that by some miscalculation or inadvertence he handed over too many. He undoubtedly intended to pass the property in the notes he gave to the accused, just as he intended to take on behalf of the Bank the property in the coin he received.

1. Therefore, in my opinion, even if the accused received the excess, and it could be said there was a taking in any form under s226, it was not a taking without the consent of the owner, and the property in the money handed over passed to the accused. The case of Russell v Smith [1958] 1 QB 27 is relied on by the Crown, but it is distinguishable on two bases. First, the extra sacks were loaded on the defendant's lorry by mistake and not by anyone's intention. There was no intention on anyone's part to hand them over to the defendant, and therefore there could be no question of the property in the goods having passed to him. He did not know he had them until the other goods were unloaded, and when he did find out, he appropriated them. It was held that he "took" the sacks at that time. Obviously the same result could not occur in this case since if I am right the property in the money, on the present assumption, passed to the accused before he realised the mistake. Therefore, on this basis there could be no stealing.

1. I pass to consider whether there is a case to answer of taking by way of a mistake on the part of the owner, which the accused knew of. In my opinion there is not, for two reasons. The first is that a "mistake" for the purposes of s226(2)(iii) must be a fundamental mistake, of a kind already adverted to, which is such as to vitiate the apparent giving of consent. I respectfully agree with Crawford J on this point, for the reasons he gives in Marshall v Szommer, Serial No 57/1989, at p19. A mistake such as that sub–paragraph refers to could not be other than one which is of a kind to vitiate apparent consent because the taking by mistake would not then be without consent as s226 requires. I have already expressed the opinion that the overpayment here was not of a kind to vitiate apparent consent. The other reason is that the knowledge of the existence of the mistake on the part of the accused which is a required element must exist at the time he obtains possession. It was so treated in Russell v Smith (supra) at p32, in respect of the definition of "taking" in s1 of the Larceny Act 1916 of the United Kingdom, from which as earlier indicated the Tasmanian s226 appears to be taken, and it seems to me to be the ordinary sense of the wording. Further, there is in my view no evidence in this case which could warrant a finding by the jury beyond reasonable doubt that the accused knew at the time he was given the money (if he was) that there had been a mistake. Thus there has been no stealing, though a civil remedy would be available. If the Crown case on the facts is right, this matter illustrates yet again the deficiencies of our law of larceny, and the need for reform. The deficiencies after all are those which were all too clear in England in the Larceny Act 1916, from which the Tasmanian provisions were taken, before the Theft Act 1968 was passed there.

1. For these reasons, the jury will be directed to return a verdict of not guilty.