R v McKiernan - [2003] QCA 43

SUPREME COURT OF QUEENSLAND

CITATION:

R v McKiernan [2003] QCA 43

PARTIES:

R
v
McKIERNAN, Kevin
(appellant)

FILE NO/S:

CA No 181 of 2002
DC No 1314 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2003

JUDGES:

Davies and Williams JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW - PROPERTY OFFENCES - LARCENY OR STEALING - OWNERSHIP - where appellant convicted of stealing a bell - whether bell was a 'thing capable of being stolen' - where bell had been in the possession of a Church for 50 years - whether Crown had to prove common law ownership of bell

Criminal Code 1899 (Qld), s 390, s 391(1), s 391(2), s 391(7)

R v Dwyer & Marsh [1962] QdR 84, applied

Russell v Wilson (1923) 33 CLR 538, considered

COUNSEL:

T Carmody SC for appellant
R G Martin for respondent

SOLICITORS:

Andrew P Abaza for appellant
Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: The appellant was convicted in the District Court on 9 May 2002 of stealing a bell the property of the Corporation of the Synod of the Diocese of Brisbane on 22 September 1978. He appeals against that conviction.

It is not disputed in this appeal that the bell found in the appellant's possession was the one which had once hung in St Augustine's Anglican Church at Hamilton. Indeed, subject to the point taken in this appeal, the case against the appellant was a very strong one.

The bell, which had been in the church since 1926, disappeared on 22 September 1978, shortly after an article appeared in the Sunday Mail newspaper which, amongst other things, indicated that the bell was of ancient origin and therefore valuable. On 9 February 2000 the appellant was found in possession of the bell. He was attempting to sell it to an undercover police officer who had been posing as an American antiques dealer. Upon a search conducted by police a copy of the Sunday Mail article was found in the appellant's premises. There was also evidence that, until then, he had concealed the bell by burying it and that, in 1996 or 1997, he had admitted to another person that he had stolen it.

The sole point taken in this appeal is that the Crown was required to and failed to prove that the Synod was the common law owner of the bell. And it is submitted that, because of that requirement, the learned trial judge's directions to the jury were inadequate.

There was undisputed evidence that the bell was donated to the church by a family named Thompson in 1926. It remained at St Augustine's Church until it disappeared in 1978. As a matter of law, something given to St Augustine's Church Hamilton by the owner…

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 McKiernan

Details

AGLC: R v McKiernan [2003] QCA 43
Case: [2003] QCA 43
Decision Date: 21 February 2003

CaseChat Overview and Summary

The appellant, McKiernan, was convicted of stealing a bell and appealed against the conviction, contending that the bell was not a 'thing capable of being stolen' as it had been in the possession of a Church for 50 years. The case was heard in the Queensland Court of Appeal. The central legal issue in this appeal was whether the bell was a 'thing capable of being stolen' and if so, whether the Crown was required to prove common law ownership of the bell to establish the offence of stealing. The court considered whether the common law doctrine of adverse possession, as it applied to the bell, could negate the ownership of the Church and thereby impact the appellant's conviction.

The Queensland Court of Appeal held that the bell was indeed a 'thing capable of being stolen'. The court found that the appellant's contention that the bell could not be stolen because it had been in the possession of the Church for 50 years was not valid. The court applied the decision in R v Dwyer & Marsh, which held that the length of time a thing has been in the possession of another does not necessarily negate the possibility of it being stolen. Furthermore, the court considered the case of Russell v Wilson, which did not support the proposition that adverse possession could negate the ownership of the Church in this context. The court held that the Crown did not need to prove common law ownership of the bell to establish the offence of stealing, as the essential element was the unlawful taking with the intent to permanently deprive the owner of it.

The appeal against the conviction was dismissed. The appellant's argument that the bell was not a 'thing capable of being stolen' due to its long-term possession by the Church was rejected. The court's decision hinged on the application of relevant case law and statutory provisions, which established that the bell was indeed a thing that could be stolen. As such, the appellant's conviction for stealing the bell was upheld.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v McKiernan [2003] QCA 43
PARTIES:	R v McKIERNAN, Kevin (appellant)
FILE NO/S:	CA No 181 of 2002 DC No 1314 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2003
JUDGES:	Davies and Williams JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - PROPERTY OFFENCES - LARCENY OR STEALING - OWNERSHIP - where appellant convicted of stealing a bell - whether bell was a 'thing capable of being stolen' - where bell had been in the possession of a Church for 50 years - whether Crown had to prove common law ownership of bell Criminal Code 1899 (Qld), s 390, s 391(1), s 391(2), s 391(7) R v Dwyer & Marsh [1962] QdR 84, applied Russell v Wilson (1923) 33 CLR 538, considered
COUNSEL:	T Carmody SC for appellant R G Martin for respondent
SOLICITORS:	Andrew P Abaza for appellant Director of Public Prosecutions (Queensland) for respondent