The Queen v Manolas - [2017] NTSC 86

CITATION:The Queen v Manolas [2017] NTSC 86
PARTIES:THE QUEEN
v

MANOLAS, George

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NOS:21627328, 21653294, 21713598
DELIVERED ON:  6 December 2017
DELIVERED AT:  DARWIN
HEARING DATES:  Trial 23 October – 6 November 2017
JUDGMENT OF:  BARR J
CATCHWORDS:

CRIMINAL LAW – Elements of offence of stealing – accused director appropriating monies from company’s bank account to pay debts of another company – multiple counts of stealing ‘thing in action’ – s 209(1) Criminal Code (NT) – intention of depriving – alternative definition to ‘intention of permanently depriving’ – that accused appropriated property with the intention to treat the property as his own to dispose of regardless of the rights of the owner – alternative definition includes disposal by lending.
Criminal Code (NT) s 1, s 209(1), s 210(1)
Croton v The Queen (1967) 117 CLR 326, followed
DPP v Brownlie (A Pseudonym) (2015) 45 VR 362, considered
REPRESENTATION:
Counsel:
Crown:D Morters
Accused:M Thomas
Solicitors:
Crown:Office of the Department of Public Prosecutions
Accused:
Judgment category classification:    B
Judgment ID Number:  Bar1713
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Manolas [2017] NTSC 86

Nos. 21627328, 21653294, 21713598
BETWEEN:

THE QUEEN

Plaintiff

AND:

GEORGE MANOLAS

Defendant

CORAM: BARR J
REASONS FOR RULING
(Delivered 6 December 2017)
Intentionally to permanently deprive

Before providing an aide memoire to the jury, I made a ruling in relation to the proper interpretation of the definition of “depriving” in s 209(1) of the Criminal Code (NT). I now publish reasons, which refine and expand on the reasons delivered to the parties at trial.
The accused was charged on indictment with 20 counts of stealing a “thing in action”, in each case the property of the company Coronation Drive (NT) Pty Ltd (“the Company”).
All except two of the counts in the indictment alleged the electronic transfer by the accused of moneys from the Company’s bank account to the bank accounts of creditors of another company, One Hundred and Fifty One Pty Ltd trading as, and here referred to as “Dymocks Casuarina”, in order to discharge or reduce the liability of Dymocks Casuarina.
Count 8, the first exception, alleged that the accused authorized payment by a cheque drawn on the Company’s bank account to Random House Australia Pty Ltd, a creditor of Dymocks Casuarina. Count 20, the second exception, alleged the electronic transfer by the accused of moneys from the Company’s bank account to the bank account of Dymocks Casuarina.
The term “property” is defined to include things in action.[1] To “steal” is to unlawfully appropriate the property of another with the intention of depriving that person of it. To “appropriate” is to assume the rights of the owner of the property.[2]
There was no issue in relation to each count that, whether by electronic transfer or by cheque payment, the accused appropriated property of the Company, namely a thing in action: the Company’s ‘money in the bank’.[3] Further, the requirement of unlawful appropriation was not in issue; the defence did not allege, and there was no evidence to suggest that any instance of appropriation of the Company’s property was authorized, justified or excused.[4]
However, a live issue at trial was whether, in relation to each count, the accused had the intention of depriving the Company of its property. The accused contended that each appropriation was a loan made to Dymocks Casuarina, to be repaid at some unspecified future time. In those circumstances, the prosecution had to prove beyond reasonable doubt either that the accused intended to permanently deprive the Company of its property; or that, without meaning the Company to permanently lose the property, he intended to treat the property as his own to dispose of regardless of the rights of the Company.
The concept of ‘intention of permanently depriving’ is difficult to apply in circumstances where the property appropriated is a ‘thing in action’, being some of the overall amount of money in a bank account. The difficulties are both legal and factual. In the present case I considered that, at the time of or immediately after each transfer or appropriation, because of the nature of the particular ‘thing in action’, the Company lost its right to recover from its bank an amount equal to the transferred or appropriated amount. The loss of that right meant that the thing in action was (to that extent) extinguished. Once the transfer in favour of any third party took place, whether by electronic transfer or by cheque, the Company was permanently deprived of its property. The accused’s transfer of money to the account of Dymocks Casuarina or to the accounts of creditors of Dymocks Casuarina, by electronic transfers, had the immediate effect that the Company was permanently deprived of its property.[5]
The analysis in the previous paragraph does not necessarily or easily resolve the issue of ‘intention of permanently depriving’, given the accused’s case that he intended to repay or arrange for repayment, at some unspecified future time, of an amount of money equal in value to the Company’s property appropriated on each occasion. As a result, my ruling in relation to the meaning of “depriving” or “intention of depriving” in s 209(1) Criminal Code assumed that the jury might not have been satisfied beyond reasonable doubt that the accused intended to permanently deprive the Company of the property the subject of each count.
Intention to deprive
The definition of “depriving” in 209(1) Criminal Code is as follows:
“depriving means permanently depriving and appropriating or borrowing property without meaning the person to whom it belongs permanently to lose the property if the intention of the person appropriating or borrowing it is to treat the property as his own to dispose of (including to dispose of by lending or under a condition as to its return that he may not be able to perform) regardless of the rights of the person to whom it belongs. [underlining added]
The definition is possibly confusing because of a lack of punctuation and the presence of the word “and” (underlined by me) in the first line. The latter might suggest that the part which then follows sets out requirements additional to “permanently depriving” in order to satisfy the definition of “depriving”. In my view, however, the word “and” introduces an additional, alternative, meaning of “depriving”. On a proper interpretation, therefore, the definition provides both a traditional definition of “depriving”, in the sense of permanently depriving the owner of property, and an extended definition of “depriving” which, for clarity, I set out below (underlining emphasis added):
… appropriating or borrowing property without meaning the person to whom it belongs permanently to lose the property if the intention of the person appropriating or borrowing it is to treat the property as his own to dispose of (including to dispose of by lending or under a condition as to its return that he may not be able to perform) regardless of the rights of the person to whom it belongs.
I concentrated on that part of the definition relevant to ‘appropriating’, rather than ‘borrowing’. As explained in [8] above, the nature of the thing in action is that, for each transfer, the Company lost its right to recover from its bank an amount equal to the transferred amount. The loss of that right meant that the chose in action was (to that extent) extinguished. Although the accused appropriated property of the Company, I did not see how it could be said that the accused borrowed the property.[6]
In order to prove the element of “intention of depriving”, within the extended definition set out and explained in [11] above, the prosecution had to prove beyond reasonable doubt in relation to each count that the accused appropriated the property with the intention to treat the property as his own to dispose of (including by lending) regardless of the rights of the Company. Upon such proof, and on a proper interpretation of the definition of “depriving”, the accused would be regarded as having the necessary intention of depriving.[7] The prosecution would not be required to prove that the accused had the intention of permanently depriving, nor would the prosecution have to disprove any intention on the part of the accused to repay or arrange for repayment of an amount of money equal to the value of each appropriation.
I ruled further that, if the accused had loaned the property appropriated by him to Dymocks Casuarina, that lending would have been a ‘disposal’ sufficient to satisfy the requirements of the extended definition. There are two alternatives within the bracketed part of the extended definition: (1) disposal by lending, and (2) disposal under a condition as to its return that the accused may not be able to perform (for example, by pledging or creating a possessory lien in a third party[8]). In the case of disposal by lending, the prosecution did not need to prove that the loan monies had been put at risk, or that the accused may not have been able to perform a condition to which the return of the property was subject.
The jury was subsequently directed as to the need for the prosecution to prove (1) that the accused intended to treat the Company’s property as his own to dispose of (including by lending) and (2) that the accused’s intention to do so was “regardless of the rights of the person to whom it belongs”, that is, regardless of the rights of the Company.
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[1]Definition, Criminal Code s 1.

[2]Definition, Criminal Code s 109(1).

[3]As to the nature of ‘money in the bank’ as a chose in action, see Croton v The Queen (1967) 117 CLR 326 at 330.9, per Barwick CJ; McTiernan J agreeing at 335.6.

[4]Definition of “unlawfully” in Criminal Code s 1.

[5]The effect was less immediate in the case of the cheque payment.

[6]The accused contended at trial that the appropriations were ‘loans’ by the Company, not to himself, but to Dymocks Casuarina.

[7]DPP v Brownlie (A Pseudonym) [2015] VSCA 147; (2015) 45 VR 362 at [26]. Note that s 73(12) of the Victorian Crimes Act 1958 stated that the lending of appropriated property may amount to … treating “the thing as his own to dispose of regardless of the other’s rights”, but only if the lending is “for a period and in circumstances making it equivalent to an outright taking or disposal” – see the extract of the statute in DPP v Brownlie (A Psuedonym) at [22]. The Northern Territory Criminal Code provision is not circumscribed in this way and is expressed in simpler terms than the Victorian s 73(4) and s 73(13) read together.

[8]DPP v Brownlie (A Pseudonym) [2015] VSCA 147; (2015) 45 VR 362 at [25].