R v Hawcroft - [2009] ACTSC 145

R v KATHERINE HAWCROFT [2009] ACTSC 145 (9 November 2009)

CRIMINAL LAW – stealing – indictment alleging theft of various sums of money – relevant amounts withdrawn and transferred from the accused’s bank accounts – whether conduct capable of constituting theft of money – whether conduct was dealing with choses in action – whether indictment capable of being made out

Crimes Act 1900 (ACT)

Martinello v The Queen [2006] ACTCA 28
R v Capewell [1995] 2 Qd R 64
R v Rigney-Hopkins (2005) 154 A Crim R 433
Rigney-Hopkins v The Queen [2007] HCA Trans 209
Attorney General’s Reference (No. 1 of 1983) [1984] 3 All ER 369

No. SCC 426 of 2007

Judge: Marshall J
Supreme Court of the ACT
Date: 9 November 2009

IN THE SUPREME COURT OF THE ) No. SCC 426 of 2007
)
AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

KATHERINE HAWCROFT

ORDER

Judge:  Marshall J
Date:  9 November 2009
Place:  Canberra

THE COURT FINDS:

The accused is not guilty of the two hundred and thirty charges on the indictment.

The accused is charged with 230 counts of theft of various sums of money arising from her alleged use, for her own purposes, of trust funds held by in her capacity as trustee for five beneficiaries. The beneficiaries were her three children and two nieces.

Each of the charges arises under s 89 of the Crimes Act 1900 (ACT), as in force at the relevant time.

THE ADMISSIONS

For the purposes of the trial, the prosecution sought and gained the following admissions from the accused. These admissions appear as agreed to by the accused, and any errors of expression were contained in the document provided to the Court:

“1.The accused is the daughter of the late Mr Victor Prineas (born 23/3/1917) who died on 5 April 1997 and the late Chrisoula Prineas (born 5/2/1920) who died on 2 December 1998. The late Mr Victor Prineas and the late Mrs Chrisoula Prineas had two other children, Phillip Prineas (born 6/6/1942) and Theodore Prineas (born 5/7/1947).
2.In about July 1994 Mr Victor Prineas and Mrs Chrisoula Prineas entered into a property settlement to distribute the assets of their marriage. One of the assets of the marriage was ‘Victor Lodge’ which was a Motel located at 29 Dawes St Kingston ACT. This property had in 1993 been leased for a period of 10 years to Graham and Leanne Vickers (‘Vickers’). The annual rental of the property was $54 000 which was paid by equal monthly instalments of approx $4567.50.
3.It was agreed between Mr Victor Prineas and Mrs Chrisoula Prineas that the property would be transferred to the accused by way of a deed of trust and it was to be held on trust for the benefit of the then grandchildren namely Christina Prineas (born 26/1/1977) and Antigony Prineas (born 9/8/1978) the children of Phillip Prineas, and Jacqueline Hawcroft (born 5/11/1982), James-Thomas Hawcroft (born 18/6/1985) and Michael Hawcroft (born 3/9/1986) the children of the accused.
4.On 8^th

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 Hawcroft

Details

AGLC: R v Hawcroft [2009] ACTSC 145
Case: [2009] ACTSC 145
Decision Date: 9 November 2009

CaseChat Overview and Summary

The case of R v Hawcroft involved the respondent, Hawcroft, who was indicted on 230 counts of theft of various sums of money. The central issue before the court was whether the actions of the respondent, involving withdrawals and transfers of money from his bank accounts, could be considered theft under criminal law. The respondent argued that his actions were not theft as they were not stealing money, but rather dealing with choses in action. The court had to determine whether the conduct described in the indictment could constitute theft and if the indictment was valid.

The court examined the respondent's actions in the context of the law of theft, considering whether the respondent's withdrawals and transfers from his bank accounts amounted to stealing. The court also assessed whether the respondent's actions were dealing with choses in action, which would exclude them from the definition of theft. The court's analysis included a detailed examination of the legal definitions and precedents related to theft and choses in action, and how these applied to the respondent's conduct. The court concluded that the conduct described in the indictment did not constitute theft as it did not involve stealing money but rather involved dealing with choses in action.

Ultimately, the court found that the conduct described in the indictment could not be considered theft under the applicable criminal law. The court determined that the indictment was not capable of being made out, as the respondent's actions did not meet the legal criteria for theft. The court acquitted the respondent on all 230 charges, finding that the respondent was not guilty of the theft offences as alleged. The orders of the court were that the respondent was acquitted on all charges, effectively dismissing the prosecution's case.

Orders

Orders of the court

The accused is not guilty of the two hundred and thirty charges on the indictment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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