The Queen v Judith Kay Jack - [2002] ACTSC 90

THE QUEEN v JUDITH KAY JACK [2002] ACTSC 90 (3 September 2002)

CATCHWORDS

CRIMINAL LAW – indictment alleging theft of choses in action consisting of debts from bank to customer – whether evidence capable of proving commission of such offences – whether acts alleged constituted thefts of debts or of money belonging to bank.

Crimes Act 1900, ss 83, 84, 85, 86, 87

Chan Man-sin v Attorney-General of Hong Kong [1988] 1 WLR 196
R v Morris [1984] 1 AC 320
R v Thompson [1984] 3 All ER

Arlidge & Parry on Fraud, 2^nd Ed at [3-007]

No. SCC 34 of 2002

Judge: Crispin J
Supreme Court of the ACT
Date: 3 September 2002

IN THE SUPREME COURT OF THE     )
  )          No. SCC 34 of 2002
AUSTRALIAN CAPITAL TERRITORY           )

THE QUEEN

v

JUDITH KAY JACK

Judge:  Crispin J
Date:  3 September 2002
Place:  Canberra

R E A S O N S F O R R U L I N G

During the trial of this matter an issue arose as to the manner in which the first, third, fifth, seventh and eighth counts in the indictment had been pleaded.

All alleged that the accused stole choses in action consisting of debts owed by the Australia and New Zealand Banking Group Limited (“the Bank”) to customers. The chose in action referred to in the first count was the property of Mr Christopher Alderson and those referred to in the third, fifth, seventh and eighth counts were the property of Ms Pirkko Turunen.

In essence, the Crown alleged that the accused, who was a bank officer, had created new accounts in the names of the customers and had transferred into those accounts funds that had been standing to their credit in existing accounts. She then issued to herself transaction cards linked to the new accounts, allocated a personal identification number (“PIN”) to those cards and progressively withdrew sums of money from the accounts.

During the course of the Crown case an issue was raised as to the manner in which these counts had been pleaded. Mr Livingstone, who appeared for the accused, argued that the actions of the accused, even if proven to the requisite standard, could not amount to thefts of the debts. The bank continued to be indebted to the customers to the extent of the amounts that would have been due to them had the alleged thefts not occurred. Hence, any thefts would have been thefts of money that belonged to the bank rather than thefts of debts owed to customers.

As the Crown pointed out, this issue has been discussed in Arlidge & Parry on Fraud, 2^nd Ed at [3-007]:

A person who in fact has no authority to draw on the account may nevertheless succeed in having it debited, eg. by forging and presenting a cheque, or by deceiving the bank into transferring funds to another account. In this case his conduct will probably not reduce the amount owed by the…

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 The Queen v Judith Kay Jack

Details

AGLC: The Queen v Judith Kay Jack [2002] ACTSC 90
Case: [2002] ACTSC 90
Decision Date: 3 September 2002

CaseChat Overview and Summary

The Queen sought the conviction of Judith Kay Jack for stealing choses in action from a bank's customer, amounting to debts owed by the bank to the customer. The matter was heard in the County Court of Victoria. The primary legal issue before the court was whether the evidence presented was sufficient to establish that the accused committed thefts of the choses in action, or alternatively, whether the accused stole money directly from the bank. The court had to determine whether the alleged acts constituted thefts of debts or thefts of money belonging to the bank.

The court considered the nature of the charges, focusing on the definitions and elements of theft as they pertain to choses in action and money. The prosecution needed to demonstrate that the accused had dishonestly appropriated property belonging to another with the intent to permanently deprive the owner of it. The court assessed the sufficiency of the evidence to establish that the accused had acted with the requisite intent and that the acts amounted to theft of the choses in action, as opposed to theft of money. The court concluded that the evidence was capable of proving the commission of the offences as charged.

The court found that the evidence was sufficient to establish that the accused had dishonestly appropriated the choses in action, which were debts owed by the bank to the customer. The court determined that the acts alleged constituted thefts of debts rather than thefts of money belonging to the bank. Consequently, the court found Judith Kay Jack guilty on all counts of the indictment. The final orders included the conviction of the accused and the matter was remitted for sentencing.

Orders