R v Glanville and Hage

[1993] QCA 71

IN THE COURT OF APPEAL [1993] QCA 071

SUPREME COURT OF QUEENSLAND

C.A. No. 320 of 1992 C.A. No. 321 of 1992

Brisbane

[R. v. Glanville & Hage]

T H E Q U E E N

v.

WILLIAM DAVID GLANVILLE

and KEITH ROY HAGE

(Appellants)

The Chief Justice
Mr. Justice Pincus

Mr. Justice Byrne

Judgment delivered 12/03/1993

Judgment of the Court.

APPEALS DISMISSED.

CATCHWORDS:	UNLAWFUL POSSESSION OF MOTOR VEHICLE - FALSE PRETENCES - DEFENCES NOT PUT TO JURY - s.22 CRIMINAL CODE - s.24 CRIMINAL CODE - UNAUTHORISED REPOSSESSION AND SALE OF A MOTOR VEHICLE
Counsel:	M. Byrne for the Crown W. McMillan for the Appellants
Solicitors:	The Director of Prosecutions for the Crown The Legal Aid Office for the Appellants
Hearing Date(s):	4 February 1993

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No. 320 of 1992 C.A. No. 321 of 1992

Brisbane
Before the Chief Justice

Mr. Justice Pincus

Mr. Justice Byrne

[R. v. Glanville & Hage]

T H E Q U E E N

v.

WILLIAM DAVID GLANVILLE

and KEITH ROY HAGE

(Appellants)

JUDGMENT - THE COURT

Judgment delivered 12/03/1993

These are appeals against conviction. The two appellants were, on 20 October 1992, convicted in the District Court on two counts: unlawful possession of a motor vehicle and false pretences. Both offences related to a Ford Falcon XA sedan, "gold" in colour. The grounds of appeal argued were limited to two. First, it was said that the learned trial judge erred in law in that he did not allow the defence of honest claim of right, s.22 of the Criminal Code, to go to the jury in respect of count 3, that is, the count relating to false pretences. Second, it was said that the learned trial judge erred in law in that he did not allow the defence of mistake of fact, s.24 of the Criminal Code, to go to the jury in respect of either the charge of unlawful possession of a motor vehicle (Count 2), or that of false pretences (Count 3). It was argued for the appellants that both these defences had been properly raised on the evidence adduced at trial.

The appellants were employed by a David Rennie, the proprietor of "Cheap Cars", a used car trading lot located in McLachlan Street, Fortitude Valley. The appellants did various odd jobs for David Rennie including, occasionally, repossessing cars on which payments were outstanding. David Rennie became ill on 1 June 1991 and had to go to hospital, resulting in his son, Stephen Rennie and a friend of his, Kim McLeod, assuming control of the business. It would appear that the car business was conducted somewhat chaotically and that business records relating to the purchase of cars were not properly maintained.

Upon assuming control of the business, Stephen Rennie and McLeod instructed the appellants to repossess a number of cars on which the payments were outstanding or which had been lent to David Rennie's friend, Donna Daley. The vehicles repossessed included a Holden Statesman, which was the subject of a failed charge of false pretences at the same trial, and which had been apparently lent to Donna Daley. Miss Daley was in co-habitation with a Stephen Keith Smith, and both resided at 736 Waterworks Road, Ashgrove. It was from these premises that a number of cars were repossessed by the appellants including a Sigma, the Statesman, and the Ford Falcon in question. After their removal, Smith reported both the Statesman and Ford Falcon as stolen. The Ford Falcon was sold by the appellants on 24 June 1991 to one Bartrum.

The appellants' defence included suggestions that Smith was present at the time they collected the Falcon, and that he did in effect acknowledge that if they had to take the car then they could do so; neither of the appellants gave evidence. Smith denied that he was at his Ashgrove residence when the Falcon was collected.

There was evidence that Bartrum had previously asked the appellants to be on the lookout for a cheap Ford. The Crown case was that the appellants saw the Ford at Smith's residence when collecting the Statesman and Sigma, and that approximately two weeks later the appellants went back to collect the Ford. It was this act that was the subject of the charge of unlawful possession of a motor vehicle. The charge of false pretences was said to be founded on the appellants' pretences to Bartrum that the Ford Falcon was in fact properly repossessed, that there was $1500 owing on it and that they were entitled to sell it. It was alleged that the appellants told Bartrum that if he paid this amount he could have the car. Bartrum, on the faith of these representations paid over $260 as a deposit on the car.

Bartrum then telephoned the Morningside police station to check whether the car had been stolen. He was informed that it was not stolen and that it was "all right to buy". He then paid the balance of the price to the appellants.

The Crown case was that the money which the appellants received from Bartrum for the sale of the Ford Falcon was never accounted for nor offered to either David or Stephen Rennie. Smith said that the Ford Falcon was bought by him from a person having no connection with the Rennies. He further alleged that he gave the appellants no authority to take possession of or sell the car. Stephen Rennie and David Rennie also gave evidence to the effect that they gave no authority or instructions to the appellants to repossess the Ford.

As has been mentioned, neither of the appellants gave evidence, but in an interview with the police, each of them attributed to Smith words and actions consistent with his consenting to the Ford being taken away. The appellant Hage told the police that Smith said "If you've got to take it, take it" and Glanville asserted that Smith said "You'll have trouble getting it down the driveway". Both Hage and Glanville told the police that Smith helped them to load the Ford. Further, Glanville told the police, with reference to the Ford, that David Rennie had told "us to go back and pick it up".

With respect to Count 2, the only question is whether the judge should have left to the jury a defence based on s.24 of the Code. If the Crown witnesses were accepted, then the appellants simply took the Ford from Smith's premises without the permission of or request from any relevant person; on what the appellants told the police, however, David Rennie asked them to pick the Ford up and Smith consented to its being taken away.

In our opinion, the judge was right not to leave s.24 to the jury with respect to Count 2. If the jury accepted the Crown case, then the appellants simply took the Ford away from Smith's premises, sold it and kept the money. If there was a relevant mistake, it must have been either that the appellants mistakenly believed they had been asked by David Rennie to repossess the Ford or that they mistakenly believed that Smith consented to its being taken away. But it is not in every case that a conflict of evidence gives rise to a s.24 defence, on the basis that it is possible that the accused thought the facts were other than as they were. Smith said he was not even present when the Ford was taken away. It would have seemed fanciful to ask the jury to consider whether the appellants perhaps mistakenly thought Smith was present and mistakenly thought he had assisted them to load the Ford to enable it to be taken away. Alternatively, if on the basis of the slight indications in the record of interview, it were suggested that the accused may have had mistaken impressions that Rennie had expressly or impliedly instructed them to take the Ford and that Rennie was entitled to possession of it, there would be no scope for the effective operation of a defence under s.24 beyond what was available under s.22, which the judge put to the jury. The operation of any possible defence under s.24 would be fully subsumed under the operation of the earlier section which was more relevantly applicable to the facts of this case.

Putting the matter more broadly, there was, on the essential points, a complete gulf between the Crown case and the excuses given to the police by the appellants. We do not accept that the judge was obliged to ask the jury to consider whether, if they accepted the Crown case, the appellants might nevertheless have mistakenly thought that there had occurred events which, on the Crown case, did not occur.

As to Count 3, the argument was that the judge erred in failing to put honest claim of right under s.22, as well as in failing to put mistake of fact under s.24. The indictment charged that the appellants "by falsely pretending to one Todd Bartrum that you were entitled to sell a Ford Falcon sedan obtained from the said Todd Bartrum a sum of money namely $260 with intent thereby then to defraud". If the jury were not satisfied of the intention to defraud, they had to acquit. If they were so satisfied, then s.22 was not open as a defence because an element of it is absence of intention to defraud. With respect to s.24, the same sort of problem arises. The mistaken belief must be "honest and reasonable"; proof of a fraudulent intent is inconsistent with that.

We are of opinion that the judge was right in not putting to the jury the defences we have mentioned and the appeals should be dismissed.