R v Delk - [1999] NSWCCA 134

Reported Decision:
46 NSWLR 340
106 A Crim R 240

New South Wales

Court of Criminal Appeal

CITATION: R v Delk [1999] NSWCCA 134

FILE NUMBER(S): CCA 60707/98

HEARING DATE(S): 21 May 1999

JUDGMENT DATE:
21 May 1999

PARTIES :

Frederick Alvin Delk (Appellant)
Regina (Respondent)

JUDGMENT OF: Dunford J at 28; Greg James J at 31; Smart AJ at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0454

LOWER COURT JUDICIAL OFFICER: Kinchington DCJ

COUNSEL: GP Craddock (Appellant)
CK Maxwell QC (Respondent/Crown)

SOLICITORS: TA Murphy (Appellant)
CK Smith (Respondent/Crown)

CATCHWORDS: CRIMINAL LAW - steal from the person - not actual person - presence sufficient.

ACTS CITED: Crimes Act 1900, ss 94 & 95

CASES CITED:
Regina v Stewart and Ors [1929] SASR 500
Smith v Desmond [1965] AC 960
The Queen v Foster (1995) 78 ACR 517

DECISION: Appeal dismissed, conviction confirmed.

IN THE COURT OF
CRIMINAL APPEAL
60707/98
DUNFORD J
GREG JAMES J
SMART AJ 21 MAY 1999

R v Frederick Alvin DELK
JUDGMENT
1 SMART AJ: Frederick Alvin Delk appeals against his conviction of a charge, tried by a judge alone, that he, Delk, on 20 February 1998, did steal certain property, to wit, one platinum and diamond wristwatch, one platinum and diamond brooch, and one platinum, diamond and sapphire bracelet, the property of John T. Hinkley Pty Limited, from the person of Geoffrey Kenneth Goldthorp, in circumstances of aggravation, namely, immediately after the stealing, maliciously, did inflict actual bodily harm on Geoffrey Kenneth Goldthorp. 2 On 19th February 1998 the appellant visited the company’s shop at 172 Castlereagh Street, Sydney, and spent about 30 minutes there looking at pieces of jewellery. The company sold expensive jewellery. The door to the shop is kept locked and potential customers are admitted only after a member of the staff causes the door to open. On 19 February 1998 the appellant and a saleswoman negotiated a sale price of $183,000 for the three pieces of jewellery. 3 About 11.15 am on 20 February 1998 the appellant entered the shop and asked Mr Goldthorp, a salesman, if he could look at the pieces of jewellery again. The appellant was seated on a stool on one side of a glass counter. Mr Goldthorp retrieved the pieces from the window and placed them on a tray on the counter in front of the appellant. Mr Goldthorp remained standing. The appellant asked Mr Goldthorp for the weight of the stones. Mr Goldthorp went to obtain a certificate with the details, temporarily placing the pieces out of the appellant's reach as he did so. On obtaining the certificate he placed the pieces on the counter in front of the appellant. There was a short conversation. 4 The appellant while still seated and with Mr Goldthorp opposite him, and close to him, lunged across the counter and with one arm grabbed the pieces and pulled them towards his body. At the same time he leant over the counter and with his other arm…

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 Delk

Details

AGLC: R v Delk [1999] NSWCCA 134
Case: [1999] NSWCCA 134
Decision Date: 21 May 1999

CaseChat Overview and Summary

In the case of R v Delk, the defendant was convicted of stealing from a person, despite not directly taking anything from the actual individual. The dispute centred on the interpretation of the term "from the person" in the context of theft under Australian criminal law. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether the presence of the victim was necessary for the offence of theft to occur, or if the mere proximity of the victim was sufficient. The key issue was whether the defendant had to directly take the property from the person, or if it was enough that the property was taken in the victim's presence. The court also considered the intent of the defendant and the circumstances surrounding the theft.

The court held that the presence of the victim was sufficient for the offence of theft to occur, even if the property was not directly taken from the person. The court found that the defendant's actions constituted theft as they occurred in the presence of the victim, and the defendant had the intent to permanently deprive the victim of their property. The court emphasised that the key element was the victim's presence, rather than direct interaction with the person. The conviction was upheld, and the defendant's appeal was dismissed.

The court did not make any specific orders beyond the upholding of the conviction and dismissal of the appeal. The ruling provides clarity on the interpretation of "from the person" in the context of theft under Australian criminal law, confirming that the presence of the victim is sufficient for the offence to occur.

Orders