R v Mujunen

[1993] QCA 81

IN THE COURT OF APPEAL [1993] QCA 081

SUPREME COURT OF QUEENSLAND

C.A. No. 285 of 1992

Brisbane
[R. v. Mujunen]

BETWEEN

T H E Q U E E N

v.

LAURI JUHANI MUJUNEN

(Appellant)

The President
Mr Justice Davies

Mr Justice McPherson

Judgment delivered 22/03/93
Reasons for judgment by

APPEAL AGAINST CONVICTION ON COUNT 2 ALLOWED; CONVICTION AND VERDICT ON THAT COUNT SET ASIDE; JUDGMENT OF ACQUITTAL ENTERED IN RELATION TO IT. OTHERWISE APPEAL AGAINST CONVICTIONS DISMISSED, AND APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS CRIMINAL LAW - Stealing - Automatic teller

machine - Criminal Code s.391.

Counsel: P. Rutledge for the Crown, instructed

by the Director of Prosecutions

W. McMillan for the appellant, instructed by the Legal Aid Office

Hearing Date: 5 February 1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 281 of 1992

Brisbane

[R. v. Mujunen]

T H E Q U E E N

Respondent

- and -

LAURI JUHANI MUJUNEN

Appellant

The President
Mr Justice McPherson

Mr Justice Davies

Judgment delivered 22/03/93

Separate reasons for judgment by the President, McPherson JA. and Davies JA.

BY MAJORITY, APPEAL AGAINST CONVICTION ON COUNT 2 ALLOWED. CONVICTION AND VERDICT ON THAT COUNT SET ASIDE AND JUDGMENT OF ACQUITTAL ENTERED IN RELATION TO IT. OTHERWISE APPEAL AGAINST CONVICTION DISMISSED AND APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	STEALING - Consent of victim - customer deposits forged cheque then withdraws money from automatic bank teller machine and over counter - whether consent of bank to taking - Criminal Code (Qld.) s.391.
Counsel:	Mr W. McMillan for the appellant Mr P. Rutledge for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the respondent
Hearing Date(s):	05/02/93

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 285 of 1992

Brisbane
Before The President

Mr Justice McPherson

Mr Justice Davies

[R. v. Mujunen]

T H E Q U E E N

Respondent

- and -

LAURI JUHANI MUJUNEN

Appellant

REASONS FOR JUDGMENT - THE PRESIDENT

J udgment delivered 22/03/93

On 25 September 1992, Lauri Juhani Mujunen was convicted in the District Court at Brisbane on one charge of uttering a false document and three charges of stealing. On the same day he was sentenced to imprisonment for six months on all four charges, the sentences to be served concurrently, admitted to probation for two years upon the completion of the sentences and ordered to make restitution to Westpac Banking Corporation in the sum of $1,300.00 within 18 months and, in default, sentenced to imprisonment for three months. Mujunen appealed against his convictions and applied for leave to appeal against sentence. However, when the matter came on for hearing, the appeal against the conviction on the count of uttering and the application for leave to appeal against all sentences were abandoned.

Further, the appeal in respect of the three charges of stealing was expressly limited. The notice of appeal against conviction set out the following grounds in relation to the stealing charges:

" In relation to each of counts number two, three and
four:-

1.   His Honour should have held that the evidence could not support a finding by the jury that the Westpac Bank had not consented to the taking of the money.

2.   His Honour should have held that the evidence could not support a finding by the jury that the money was stolen by the accused.

3.    His Honour should have directed the jury to acquit the appellant on counts two, three and four.

In relation to count number one:-

. . .

In relation to each of counts number one, two, three and four:-

5.    His Honour should not, at the beginning of the second day of the trial have commented on the sufficiency of the Crown case.

6.    His Honour's summing up was not fair to the appellant and gave undue weight to evidence which favoured the Crown.

7.   The verdict of the jury is not supported by the evidence.

8. The verdict of the jury is unreasonable."

Grounds 4 to 8 were expressly withdrawn at the hearing and the appeal was confined to a single point, referred to below.

Not surprisingly in these circumstances, the oral argument addressed to the Court by counsel for the Director of Prosecutions was confined to the case sought to be made for the appellant. There was no opportunity for the Director to submit that the trial judge did not misdirect the jury or to meet a contention that, although there was evidence upon which the jury could have convicted, its verdict was unsafe and unsatisfactory.

In such circumstances, it would be procedurally unfair for the court to uphold the appeal on these grounds: cf. Pantorno v. R. (1989) 166 CLR 466, 472ff.

It might be appropriate to relist a matter for further argument if that is necessary to do justice (cf Stead v. State Government Insurance Commission (1986) 161 CLR 141; Autodeck Inc. v. Dyason (High Court, unreported, judgment delivered 3 March 1993)), but here, in my opinion, there would be no miscarriage of justice if the failure of the appellant's sole point meant that the convictions continue to stand. On the other hand, of course, if the appellant's point, although technical, is correct and some or all of the convictions are not supported by evidence, the appeal should, to that extent, be allowed on that, the basis argued.
The case against the appellant was essentially that, on or about 24 September 1990, he deposited a cheque which he had forged to his account with Westpac Banking Corporation. The appellant's account with the bank was credited with the amount of the cheque subject to it being cleared, but the credit was shortly afterwards reversed when another bank declined to make payment on the cheque. Meanwhile, the appellant withdrew $1,300.00 from the bank (against the credit created in his account by the cheque) in three separate transactions, using automatic teller machines on two occasions and a counter withdrawal on the other. There was neither a request nor an approval for an overdraft facility with the bank and the appellant's contract with the bank did not permit the withdrawal of funds against a credit from a cheque which had not been cleared. However, the bank's system enabled withdrawals to be made from an automatic teller machine prior to a cheque being cleared.

The appellant's point "in a nutshell" was that the appellant did not steal from the bank because, however he got the money from the bank, there was money in his account which he was entitled to withdraw. This seems plainly incorrect, but factually it is accurate to say that, although not entitled to do so, the appellant was able to withdraw the money.

Under sub-section 391(1) of the Criminal Code, the appellant stole the money if he fraudulently took it. It is also stealing if there is a fraudulent conversion: see the discussion of the analogous provision in the Western Australian Criminal Code in Ilich v. R. (1987) 162 CLR 110, in which the money in question was initially mistakenly overpaid to the appellant. Money is property capable of being stolen: Code, s.390; Ilich.

By sub-section 391(2) of the Code, a person who takes or converts anything capable of being stolen is deemed to do so fraudulently

"if he does so with any of the following intents, that is

to say-

(a) an intent to permanently deprive the owner of the
thing of it;
...

(f)  in the case of money, an intent to use it at the will of the person who takes or converts it ...".

So far as presently material, subsections 391(3), (4), (6) and (7) of the Code provide:

"(3) The taking or conversion may be fraudulent, although
it is effected without secrecy or attempt at concealment.
(4) In the case of conversion, it is immaterial whether
the thing converted is taken for the purpose of conversion,
or whether it is at the time of the conversion in the
possession of the person who converts it. ...
(6) The act of stealing is not complete until the person
taking or converting the thing actually moves it or
otherwise actually deals with it by some physical act.
(7) The term `owner' includes ... any person having
possession or control of ... the thing in question."
The bank was the owner of the money, at least until it left

the possession of the bank and came into the possession of the appellant. On the most favourable view of the matter for the appellant, the bank then ceased to be the owner and the appellant became the owner. On this hypothesis, the appellant could not have stolen the money by conversion: Ilich.

It is convenient, therefore, to start with the question whether the appellant stole the money by fraudulently taking it, that is, by taking it with the intent to permanently deprive the bank of it or the intent to use it at the will of the appellant.

Both such intents are clearly established, so that the question is whether or not, on the different occasions, the appellant took the money within the meaning of section 391.

In the over the counter transaction, the bank teller mistakenly paid the money to the appellant. The matter is indistinguishable from Ilich save that, unlike that case, the appellant did not honestly share the teller's mistaken belief that the appellant was entitled to receive the amount paid. However, the mistake was not fundamental in the material sense.

Nor is there anything in the distinction to suggest a taking of the money by the appellant: it was delivered to him. See generally, Ilich, eg. at pp.136ff. (Further, although the mistake was induced by the appellant's fraud, the property in the money paid to him by the teller was intended to and did pass to him by and on delivery and receipt so that his subsequent dealing with the money did not amount to a conversion: Ilich.)
The appellant's withdrawal from the automatic teller machines are materially different. He was not handed the money, but took it and, if it matters, the money was taken without the bank's consent and without any intention on the part of the bank to pass property in the money to the appellant.

In Ilich, Wilson and Dawson JJ. said at pp.123-124:
"At common law, larceny is committed by a person who,
without the consent of the owner, fraudulently and without
a claim of right made in good faith, takes and carries away
anything capable of being stolen with intent, at the time
of such taking, permanently to deprive the owner thereof.
... What we wish to draw attention to is the fact that at
common law larceny involves the taking of something without
the consent of the owner ... . For this reason it is said
that there is no larceny if the circumstances would not
sustain an action for trespass. Under the Code, on the
other hand, a person who fraudulently takes anything
capable of being stolen is said to steal the thing.
Absence of consent on the part of the owner is not required
and there is, for that reason, no necessary element of
trespass. Of course, if the taking is to be fraudulent,
there must be the requisite intent but, given that intent,
there may be a fraudulent taking of something under the
Code even if the owner intentionally delivers the thing to
the person said to take it."
It is not easy to understand the last passage, which was

obiter. Taking seems inconsistent with receipt upon delivery. In the next paragraph, their Honours said: "Under the Code, ... stealing contains no trespassory element although there must be a taking". See also the foot of p.129.

In my respectful submission, this is correct but the point must be carefully stated. Under the Code, there must be a taking (or a conversion) with a specified intent but, if there is a taking with such intent, the offence of stealing may be committed even if the taking was with the owner's consent: cf. Ilich per Gibbs CJ. at p.115.

Unless there is an absence of criminal responsibility by virtue of Chapter V, stealing under the Code will be established if larceny at common law is made out in such circumstances: cf. Ilich at pp.133 & 141. In this context, it is material to examine Kennison v. Daire (1986) 160 CLR 129.

In that case, the appellant was convicted of larceny contrary to s.131 of the Criminal Law Consolidation Act 1935 (SA), as amended. He was the holder of a card which enabled him to use the automatic teller machine of a bank to withdraw money from his account with that bank. It was a condition of the use of the card that the customer's account could be drawn against to the extent of the funds available in that account. Before the date of the offence, the appellant had closed his account and withdrawn the balance, but had not returned the card. On the occasion of the offence, he used his card to withdraw money from a machine at a branch of the bank. He was able to do so because the machine was off-line and was programmed to allow the withdrawal of the amount in question by any person who placed the card in the machine and gave the corresponding personal identification number. When off-line, the machine was incapable of determining whether the card holder had any account which remained current and, if so, whether the account was in credit.

The High Court affirmed the decision of the Full Court of South Australia ((1985) 38 SASR 404). It was not doubted that the appellant had taken the money or that he had acted fraudulently with intent permanently to deprive the bank of the amount in question. The only question was whether or not the bank had consented. At pp.131-132, the Court in a joint judgment said:

" The appellant's submission is that the Bank consented to the taking. It is submitted that the Bank intended that the machine should operate within the terms of its programme, and that when it did so it gave effect to the intention of the Bank.

In the course of an interesting argument, Mr Tilmouth pointed out that if a teller, having the general authority of the Bank, pays out money on a cheque when the drawer's account is overdrawn, or on a forged order, the correct conclusion is that the Bank intends that the property in the money should pass, and that the case is not one of larceny: see, e.g. Chambers v. Miller (13) and Reg. v. Prince (14). He submitted that, in effect, the machine was invested with a similar authority and that if, within the instructions in its programme, it handed over the money, it should be held that the property in the money passed to the card-holder with the consent of the Bank.
With all respect we find it impossible to accept these arguments. The fact that the Bank programmed the machine in a way that facilitated the commission of a fraud by a person holding a card did not mean that the Bank consented to the withdrawal of money by a person who had no account with the Bank. It is not suggested that any person, having the authority of the Bank to consent to the particular transaction, did so. The machine could not give the Bank's consent in fact and there is no principle of law that requires it to be treated as though it were a person with authority to decide and consent. The proper inference to be drawn from the facts is that the Bank consented to the withdrawal of up to $200 by a card-holder who presented his card and supplied his personal identification number, only if the card-holder had an account which was current. It would be quite unreal to infer that the Bank consented to the withdrawal by a card-holder whose account had been closed. The conditions of use of the card supplied by the Bank to its customers support the conclusion that no such inference can be drawn. It is unnecessary to consider what the position might have been if the account had remained current but had insufficient funds to its credit. The decision in Reg. v. Hands (15) is consistent with the view that no inference of consent can be drawn although, as Mr. Tilmouth submitted, there are points of distinction between that case and this."

Similarly, the bank had no intention to pass the property in the money. In Ilich, Brennan J. said at p.141:

"If Kennison v. Daire had been decided under the Code, the result would not have been different. The erstwhile customer of the bank would have been liable to conviction under the Code for fraudulently taking the Bank's money, for no intention to pass either possession or ownership in the money was attributed to the Bank."

See also Ilich at p.137.

In my opinion, a similar conclusion should be reached here. The bank did not consent to the appellant taking the money from the automatic teller machine or intend to pass the property in that money to him. I do not think that such an intention should be attributed to the bank merely because its system enabled the appellant to withdraw money before his cheque was cleared, contrary to his contract with the bank. I am satisfied that this view is consistent with the decisions of the Court of Criminal Appeal in R. v. Evenett Ex Parte Attorney-General (1987) 2 Qd.R 753 and R. v. Baxter (1988) 1 Qd.R 537.

However, the critical consideration is that the appellant took the money from the automatic teller machines with the requisite intent in circumstances in which no question is raised of absence of criminal responsibility under Chapter V of the Code. That is sufficient to make out the offences of stealing under s.391. The position is different from the over the counter transaction because there the teller delivered the money to the appellant.

In the circumstances, it is plainly unnecessary to consider whether the money taken by the appellant from the automatic teller machines was subsequently converted by him.

The appeal against conviction in respect of count two should be allowed, but the appeal against conviction should otherwise be dismissed and the application for leave to appeal against sentence should be refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 285 of 1992

Brisbane
Before The President

Mr Justice McPherson

Mr Justice Davies

[R. v. Mujunen]

T H E Q U E E N

- v -

LAURI JUHANI MUJUNEN

Appellant

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 22/03/1993

I accept the facts stated in the reasons for judgment of McPherson J.A. However I propose to add to those facts a reference to the evidence, such as it was, about the way in which the automatic teller machines were programmed, because this is relevant to the view which I take in respect of counts 3 and 4; a view which causes me to reach a conclusion contrary to that of the majority.

The starting point in respect of each of counts 2, 3 and 4 is the, perhaps self-evident, proposition that a person cannot be guilty of stealing property which he owns and in which no other person has a proprietary right by his dealing with it; Ilich v. The Queen (1987) 162 C.L.R. 110. Consequently, if it was the intention of the Bank to pass both possession of and property in the money the subject of any of the counts at the time possession of it in fact passed, the appellant cannot be guilty of stealing on that count. Whether that was the Bank's intention was, in my view, the critical question in this appeal in respect of each of counts 2, 3 and 4. It seems likely that if, on any of these three occasions, the Bank intended to pass possession of the money to the appellant, it must also have intended to pass the property in that money at that time. That is, it seems unlikely that the Bank intended to effect a bailment of the money or any similar arrangement by passing possession of the money but not the property in it.

The jury were not directed, on any of these counts, on intention in this way. On the contrary, they were directed that the moneys taken in each case were owned by Westpac. His Honour then went on to state, wrongly, that taking without the consent of the owner was an element of the offence: Ilich at 123; see also at 115. However in addressing that question of consent, he also addressed the question of the Bank's intention, describing it as "the critical question". Without differentiating between count 2 on the one hand and counts 3 and 4 on the other, he stated that question as:-

"... was it intended by the bank to allow a withdrawal of funds being, in effect, drawn against a forged and worthless cheque."

This direction was also incorrect, in my view, limiting the relevant intention, as it did, to an intention to allow a withdrawal against a forged cheque. It failed to distinguish between an intention to pass possession of and consequently property in the money, although induced by fraud of the appellant, and absence of that intention; and to direct the jury that in the former case the appellant was not guilty.

No redirections were sought on these questions. Nor was any specific criticism of the summing up made before us, though the general submission was made that the trial judge should have directed an acquittal on each of counts 2, 3 and 4. However even if that submission is not correct, these misdirections, particularly the second of them, are relevant to the question whether the jury's verdict on each of counts 2, 3 and 4 was a safe and satisfactory one, though no contention was made before us that it was not, the only grounds of appeal bearing on the question having been abandoned.

Count 2 involved a payment made to the appellant over the counter at the Stones Corner branch of Westpac Banking Corporation by a bank officer on duty. That payment was contrary to condition 2 of the contract pursuant to which the account was opened: that proceeds of cheques deposited would not be available until cleared. It may also have been contrary to the condition of that contract that the account must be maintained in credit. For the offence of stealing to be made out then, the Crown had to establish that the bank officer intended to pass possession of and consequently property in the money to the appellant and that this intention was attributable to the Bank.

As regards the first requirement, the misdirections to which I have referred prevented the jury from considering whether the bank officer had the necessary intention. Had the jury been properly directed, the only inference which could reasonably have been drawn from the evidence at the trial was that the bank officer intended to pass possession of and property in the money. A fraudulent misrepresentation such as that made by the appellant is not the kind of fundamental mistake which vitiates that intention: see Ilich at 127, 138-140.

As to the second requirement, it seems that ordinarily a bank officer, on receiving what he or she believes to be a genuine order, has a general authority to part with possession of and the property in the Bank's money: The Queen v. Prince (1868) L.R. 1 C.C.R. 150 at 154; R. v. Mark (1902) 28 V.L.R. 610 at 619. In this case, the authority of the bank officer to make the payment contrary to the conditions of the contract between the Bank and the appellant was not explored in evidence. In particular, the Crown adduced no evidence to suggest that his authority was limited in this respect.

In the light of the misdirections given by the trial judge and the absence of evidence sufficient to support a finding that the bank officer lacked either the necessary intention or the authority to bind the Bank, I agree that the jury's verdict on count 2 should not stand and I would set aside the verdict and conviction on that count.

Turning to counts 3 and 4 which involved the use of automatic teller machines operated by the use of a "Handibank" card, the Bank's intention must be inferred from its conduct before the card was used to operate the automatic teller. This is so because automatic teller machines, unlike bank officers, cannot form an intention to pass possession of and property in money: Kennison v. Daire (1985) 38 S.A.S.R. 404 at 409, 416; 160 C.L.R. 129 at 132.

There were only two pieces of evidence bearing on this question of the Bank's intention in counts 3 and 4. The first was the contract to which I have already referred. The other was the evidence of Mr Rippon, an officer of the Bank, during the course of cross-examination. After being asked about condition 2 of the contract, the following exchange occurred:-

"That is not the case, is it, when it comes to auto- teller machine funds? -- As far as they are accessible, they are accessible as if they are deposited into the account, yes.

If there is a cheque deposited into the account, the bank understands that a person can go to an automatic teller machine and draw on those funds as if they were cleared? -- We are aware that occurs. Generally it is the next processing day, it is not the same day it is deposited.

Certainly it is not a case where the cheques have to be cleared before they are accessed? -- As far as you are talking, as far as an automatic telling machine, they are accessible.

To that extent, isn't it the case that the bank allows the drawing on funds which the bank does not have to the credit of the cardholder? -- The way you have explained it, yes."

Whilst that exchange is by no means clear, a possible inference from it is that the Bank programmed its computer governing its automatic teller machines in such a way, and with the intention, that any owner of a "Handibank" card could draw on a cheque deposited to his or her account before it was cleared, but with the further intention, presumably, that if that cheque was then dishonoured that person's account would be debited with the amount which had been provisionally credited. If that is the correct inference to draw, then I think it follows that the Bank intended that any such person could obtain, by the use of that card, possession of and property in money up to the amount of that cheque, before it was cleared.

If that is the correct inference then this case is, in my view, distinguishable from both Kennison v. Daire and R. v. Evenett; ex p Attorney-General [1987] 2 Qd.R. 753. In both those cases, as here, the relevant contracts between the Banks and the customers contained conditions that the customers' accounts be drawn against only to the extent of funds available in the accounts. However, in those cases the Banks' computers were programmed to prevent automatic teller machines from making money available to a person using a card in respect of an account which was closed or did not contain sufficient funds: (1985) 58 S.A.S.R. 404 at 408; [1987] 2 Qd.R. 753 at 755. That indicated an intention of preventing what in fact occurred in those cases. However, because the computers were off-line, the automatic teller machines permitted any person who inserted a card and a correct personal identification number to withdraw $200; and they were incapable of determining whether the cardholder had any account which remained current, and if so, whether the account contained sufficient funds. As Andrews C.J. explained in Evenett (at 756), the mere fact that the Bank established a system of convenience whereby, in the event of malfunction resulting in the automatic teller machine being off- line, customers were enabled to withdraw up to a certain amount each day could not be seen as a manifestation of an intention contrary to that which could be inferred from the terms of the contract between the customer and the Bank and the way the Bank ordinarily had its computer programmed. However, in this case, as I have explained, the Bank programmed the automatic teller machines to allow access to uncleared funds at all times - not just on those occasions when they malfunctioned and became off- line.

Another substantial distinction between this case on the one hand and Kennison and Evenett on the other lies in the way in which the Bank enabled access to the uncleared funds. In Kennison and Evenett when the teller machines were off-line the Banks effectively enabled a cardholder to withdraw an amount up to a certain daily limit from a larger pool of general funds. In this situation it was quite clear that the Banks did not, simply by facilitating access to this pool of funds, intend to pass the property in those funds to any cardholder who managed to obtain access to them, regardless of whether he or she had a sufficient credit balance to cover the withdrawal or even an account with the Bank. This was simply a risk the Banks took in the interests of customer convenience. Here, however, the Bank actually took the step of crediting the uncleared funds (albeit provisionally) to the appellant's account. No other cardholder could have obtained access to them: they were earmarked for the appellant alone. It could be inferred, in my view, that this constituted more than simply facilitating access to the uncleared funds. In Kennison and Evenett it could not reasonably have been suggested that the Banks intended that all cardholders obtain property in however much of the general pool of funds to which they were able to obtain access. However, in this case, as I have indicated, it is possible to infer that the Bank, having credited a specific amount to a specific account, intended both possession of and property in the uncleared funds to pass in the event that the account holder obtained access to them.

His Honour's misdirection, to which I have referred, prevented the jury from considering this critical question of the Bank's intention. Without having had the benefit of argument from the respondent on this issue, I would regard this as indicating that the convictions based on the trial judge's directions are too unsatisfactory to be allowed to stand. On this view, I would allow the appeal and set aside the verdicts and convictions on counts 3 and 4 also. I would not order a new trial.

However, as I have explained, the appellant failed to object to these directions at the trial or to make them the subject of a ground of appeal or to argue their insufficiency before us. It could therefore be said that the respondent, having (quite naturally) confined its argument before us to the issues raised by the appellant, would be denied procedural fairness if this Court were to allow the appeals on the basis which I have indicated: see Pantorno v. The Queen (1989) 166 C.L.R. 466 at 473-4, 482-3. However, as the other members of this Court have reached a different conclusion as to the appropriate outcome of the appeals on counts 3 and 4, it is unnecessary for me to consider whether, had my view been the view of the Court, fairness would have demanded that the matter be relisted for further argument.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 285 of 1992

Brisbane

Before The President
Mr Justice Davies
Mr Justice McPherson

[R. v. Mujunen]

BETWEEN

T H E Q U E E N
v.

LAURI JUHANI MUJUNEN

(Appellant)

REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 22/03/1993

Lauri Mujunen appeals against his conviction in the District Court at Brisbane on three counts of stealing sums of money totalling $1300 from Westpac Banking Corporation in September 1990. The offences of stealing of which he was convicted were counts 2, 3 and 4 on the indictment. He was also convicted of the offence charged in count 1, which was uttering a forged cheque. His notice of appeal challenges this conviction; but at the hearing we were informed by appellant's counsel that the appeal against conviction on count 1 would not be pursued.

In respect of each offence the sentence imposed was imprisonment for six months, to be served concurrently, followed by probation for 2 years. With remissions, the sentences have, we were told, been served, and the appellant has been released.

In these circumstances the application for leave to appeal against these sentences was not pressed, and was dismissed in the course of the hearing.

Briefly stated, the facts resulting in the convictions with respect to counts 2 and 3 were these. The appellant had possession of a stolen cheque book belonging to a firm or individual trading under the name B.J.'s Body Works that had been issued by the National Australia Bank for an account in that name at the Arana Hills branch of that Bank. On 24 September 1990 a cheque on that account in the sum of $1780 was deposited by the appellant to the credit of his own account with Westpac Banking Corporation. The signature of the drawer on that cheque was in fact a forgery, which explains the charge of uttering laid in count 1.
The amount of the cheque, which was drawn to cash, was initially credited to the appellant's Westpac account. When the cheque was later dishonoured the credit entry in the account was reversed. In the meantime, however, the appellant had succeeded in drawing against the credit shown in his account. On two occasions he did so by means of an automatic teller machine using his "Handibank" card issued by Westpac. By this means separate amounts of $500 each were withdrawn on 25 and 26 September (counts 3 and 4). In addition he effected a withdrawal of $300 (count 2) by obtaining payment of that sum over the counter at the Stone's Corner branch of Westpac on 25 September 1990.

On appeal, Mr Rutledge on behalf of the Crown frankly acknowledged that he was unable to sustain the conviction in respect of count 2. The question for decision here therefore is the validity in law of the convictions for stealing in respect of counts 3 and 4.

Reliance was placed on the decision of the High Court in Kennison v. Daire (1986) 160 C.L.R. 129, on appeal from South Australia. It involved a conviction for larceny against a person who had used an automatic teller machine to withdraw money from his bank account after he had closed the account and withdrawn all the money standing to his credit. The withdrawal was facilitated by the fact that the machine was so programmed that it could not tell whether a person had an account that remained current, nor whether an account was in credit. The Court, consisting of Gibbs C.J., Mason, Wilson, Deane and Dawson JJ., rejected a submission on behalf of the appellant that by programming the machine in that way the bank consented to the withdrawal of money by a person who had no account. Their Honours said (160 C.L.R. 129, 132):

"The machine could not give the Bank's consent in fact and there is no principle in law that requires it to be treated as though it were a person with authority to decide and consent. The proper inference to be drawn from the facts is that the Bank consented to the withdrawal of up to $200 by a card-holder who presented his card and supplied his personal identification number, only if the card-holder had an account which was current. It would be quite unreal to infer that the Bank consented to the withdrawal by a card-holder whose account had been closed. The conditions of use of the card supplied by the Bank to its customers support the conclusion that no such inference can be drawn."

The case before the Court in Kennison v. Daire was one in which the automatic teller machine was used to make the withdrawal after the account had been closed. Their Honours said they found it unnecessary to consider what the position would have been had the account remained current, but with insufficient funds to its credit to meet the withdrawal in question. Here the appellant's account had not been closed, although at the relevant time it was in credit at most to the extent of $258.87, which was not enough to meet the withdrawals the subject of counts 2, 3 and 4 in the amounts or sequence in which they took place.

That is one point of difference between the two cases. The other is that the offence involved in Kennison v. Daire was larceny at common law, whereas here the question is whether the appellant was rightly convicted of stealing as defined in s.391 of the Criminal Code. There are, as was recognised in Ilich v. The Queen (1987) 162 C.L.R. 110, significant differences between larceny and stealing. The former was closely identified with trespass to goods, which meant that traditionally it was considered an offence against possession, in which an essential element was that the asportation or moving of the thing stolen must have taken place without the consent of the owner : see Ilich, at 123, 134. This produced many complexities and artificial distinctions, which the Criminal Code set out to eliminate : see Ilich, at 115, per Gibbs C.J.; at 133-134, per Brennan J.

Under the definition of stealing in s.391(1) of the Code, a person steals who fraudulently takes anything capable of being stolen, or fraudulently converts it to his use. By s.391(2), a taking or conversion is deemed to be done "fraudulently" if carried out with one or more of a number of intents, including : (a) an intent to permanently deprive the owner of the thing; and (f) in the case of money, an intent to use it at will, although the person who takes or converts it may intend afterwards to repay the amount. Section 391(4) makes it immaterial whether the thing converted is taken for the purpose of conversion, or whether at the time of conversion it is in the possession of the person who converts it.

After setting out in their joint judgment in Ilich the corresponding provisions of s.371 of the Western Australian Criminal Code, Wilson and Dawson JJ. went on to say (at 123) that, to constitute stealing under the Code provisions, "absence of consent on the part of the owner is not required", although they stressed that to make it fraudulent there must be the requisite intent. Gibbs C.J., on the other hand, considered (at 115) that, although the Code does not require that the taking or conversion be without the consent of the owner, "the practical effect of its provisions is that a person who takes or converts goods will not be criminally responsible if he acts with the consent of the owner ...". Despite these differences of emphasis, their Honours agreed that under the Code a person "cannot be guilty of stealing property which he owns and in which no other person has a proprietary right that is infringed by his dealing with it" : see Ilich, at 134, per Brennan J. That is because, in general, "a person cannot convert something that he owns" : Ilich, at 125, per Wilson, Dawson JJ.; or, as Gibbs C.J. acknowledged (at 117), it was "clearly right" to say that, if the applicant in Ilich had acquired ownership as well as possession, there could be no conversion.

Ilich v. The Queen was not cited to us, but the judgments of their Honours in that case contain statements of principle relevant to questions under s.391 that arise on this appeal. The Court considered the meaning that is to be given to the word "converts" in s.391(1). Gibbs C.J., as well as Wilson and Dawson JJ., thought it meant a dealing with property in a manner or way that was inconsistent with the right of the owner of the thing : see 162 C.L.R. 110, at 117, 124. Brennan J. was evidently intending to give the same meaning to the word "converts" in s.391(1) when he spoke (at 134) of a "proprietary right that is infringed by his dealing with it".

An important preliminary question in the present case is whether using the automatic teller machines to withdraw the money involved a taking or conversion of that money by the appellant. It plainly did so if the process involved an infringement of a proprietary right of the bank in the money. That in turn requires it be determined whether, and if so when, property in the money withdrawn from the teller machines passed from the bank to the appellant. He could not be said to fraudulently take or convert the money once it had become his own property.

Whether and when property passes in money withdrawn from a bank account has been considered on a number of occasions. Many are cases of larceny at common law, which, for the reasons already given, means that some caution is needed in applying them in prosecutions for stealing under the Code : see Ilich, at 134-135. Nevertheless, provided that factor is borne in mind, the ultimate question whether ownership in the money has passed falls to be determined under the general law according to the same principles whether the offence charged is larceny or stealing. In R. v. Prince (1868) L.R. 1 C.C.R. 150, the wife of a customer of the bank obtained payment of money including a £100 banknote over the counter from a bank clerk by presenting a forged cheque or order purporting to have been drawn by her husband. The Court held that a conviction for larceny could not be sustained because (per Bovill C.J., at 154) "the bank clerk had a general authority to part with both the property in and possession of his master's money on receiving what he believed to be a genuine order, and that he did so part with both the property in and possession of the note in question". It was, said Blackburn J. at 155, sufficient to prevent the offence from being larceny if "the owner intended the property to pass, though he would not so have intended had he known the real facts ...". See also R. v. Davenport [1954] 1 W.L.R. 569.

In Australia the decision in R. v. Prince has been treated as authority that delivery by the owner of movable property to another with the intention that ownership be transferred to that other is ordinarily effective to transfer ownership of the property to that other, "and the transfer of ownership precludes liability for fraudulent conversion" : see Ilich v. The Queen (1987) 111 C.L.R. 110, 137, per Brennan J. See also Marshall v. Szimmer (1989) 44 A.Crim.R. 198, where many of the authorities, including Ilich, were reviewed by Crawford J. in Tasmania. The judgments in Ilich recognise that fundamental mistake may prevent ownership from passing; but, as was accepted in that case, the prima facie conclusion is that ownership of money in the form of currency passes when the person in possession hands it to another intending him to be the owner of it : see per Brennan J., at 138-139.

In the case of the $300 obtained by the appellant over the counter at the bank's branch at Stone's Corner, there is nothing to displace the prima facie inference or presumption referred to, or to distinguish the case in principle from R. v. Prince or Marshall v. Szimmer. There being no evidence here of any mistake more fundamental than in either of those two cases, there was ample justification for Mr Rutledge's concession that the Crown was not able to sustain the appellant's conviction in respect of count 2 in the indictment.

The circumstances leading to the charges in counts 3 and 4, which involved use of the automatic teller machines, raise different considerations. As we have seen, in Kennison v. Daire (1986) 160 C.L.R. 129, 132, the High Court said that there was no principle in law that required an automatic teller machine, which could not in fact give the Bank's consent, to be treated as if it were a person with authority to decide and consent. In Ilich, which was decided shortly afterwards by a Court comprising the same learned Justices, Brennan J. said that the result in Kennison v. Daire would not have been different in a prosecution under the Code : see Ilich (1987) 162 C.L.R. 110, 141, where his Honour went on:

"The erstwhile customer of the bank would have been liable to conviction under the Code for fraudulently taking the bank's money, for no intention to pass either possession or ownership in the money was attributed to the bank."

The question that remains is whether any distinction ought to be made because of the difference that in Kennison v. Daire the account had been closed before the transaction using the machine took place, whereas here the account was still current even if it lacked the funds needed to satisfy the withdrawals. Although the point was left unresolved in Kennison v. Daire, there is, we think, ultimately no basis for recognising any such distinction in law. Once it is accepted that the automatic teller machine cannot be treated as if it were a person having authority to decide or consent on behalf of the bank, the question is reduced to one of the terms on which the customer was entitled to use the teller machine to draw on his account. As to that, the evidence at the trial of the appellant was that the account was subject to conditions that it must be maintained in credit; that it at no time be overdrawn unless prior arrangements had been made with the bank; and that proceeds of cheques deposited would not be available until cleared.

Both at the trial and before us, it was urged on behalf of the appellant that the evidence disclosed that in practice a customer was able to operate an automatic teller machine so as to withdraw money from it against cheques deposited to the credit of the account but not yet cleared. If, as happened in this instance, the cheque deposited later turned out not to be valid, the credit entry would be reversed and the customer's account debited with the amount previously credited. If in the meantime there had been withdrawals on the account, it would thus be possible for it to have become overdrawn. It is, however, scarcely reasonable to equate what happens in circumstances like those with the consent of the bank to the customer's use of an automatic teller machine in order to overdraw the account. See R. v. Evenett, ex parte Attorney-General [1987] 2 Qd.R. 753. By debiting the account with the amount withdrawn by the customer the bank did no more than assert its undoubted right to recover the money taken without the bank's authority : cf. Ilich, at 143. Whether the bank did by its conduct consent to the withdrawal was, as is recognised in the reasons of the High Court in Kennison v. Daire (1986) 160 C.L.R. 129, 132, a question of the proper inference to be drawn from the facts. It is thus a question of fact falling within the province of the jury. The question was, as I see it, plainly put to the jury here, and they answered it against the appellant by returning verdicts of guilty on counts 3 and 4. If there were any doubt about the matter, I would nevertheless agree with the observations of the President on this aspect of his reasons. There has been no miscarriage of justice in this case, and no submission to that effect was advanced before us on appeal.

On this footing the proper conclusion is that the property in the money withdrawn by the appellant from or by means of the automatic teller was in the circumstances not intended by the bank to pass to the appellant. Since the money remained throughout the property of the bank, the appellant was guilty of stealing when he took or converted it with the requisite intent.

It thus becomes unnecessary to consider whether, even before the money reached him, the appellant had already dealt with it in a manner that was inconsistent with the rights of the bank as owner by activating the teller machine with a view to obtaining fraudulently money to which he knew he had no right.

The result is that the appeal against conviction on count 2 must be allowed; the conviction and verdict on that count must be set aside; and judgment of acquittal must be entered in relation to it. Otherwise the appeal against conviction must be dismissed and the application for leave to appeal against sentence refused.