Foster v The Queen

High Court of Australia|1967-07-01|Before: Menzies JJ

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Menzies JJ. Foster v The Queen [1967] HCA 8

ORDER Leave to appeal granted. Appeal allowed. Verdict, conviction and sentence set aside. Order new trial.

The applicant for leave to appeal was convicted in Canberra on 2nd March last of having had in his possession, without lawful excuse, a gun which had been stolen in New South Wales, well knowing the same to have been stolen: s. 189A of the Crimes Ordinance 1951 of the Australian Capital Territory. The principal ground on which he desires to appeal is that the learned trial judge did not properly instruct the jury as to the elements of larceny.

It appeared from the evidence that the applicant had been staying in Goulburn, New South Wales, with a man named Baker who was employed as a watchman. Baker, for the purposes of that employment, had a Smith and Wesson .32 pistol for the possession of which he held the necessary licence. The applicant's parents lived in Canberra. On 28th December 1966 the applicant went to Canberra, having announced to Baker's wife his intention of so doing. He removed Baker's gun out of its holster which was on a mantlepiece in the hallway of Baker's house and took it to his parents' home where he exhibited it to them.

When Baker that day found his gun missing, he immediately called in the police and later on the same day the applicant was interrogated and arrested in Canberra. He claimed both when interrogated and in the evidence which he gave at his trial that he was returning to Goulburn that same evening and intended to take the gun with him to replace it in Baker's possession, as had been his intention throughout.

The Crown at the trial submitted in substance that because of the terms of s. 118 of the Crimes Ordinance, it was not necessary in relation to the facts of the case to establish that the accused, at the time of the asportation of the gun, had an intention to deprive Baker permanently of the gun. In commending to the jury the legal propositions which the Crown Prosecutor had put before them, the trial judge added: "This is not really a charge of stealing but it is a charge that the accused without lawful excuse had in his possession stolen property, which property was stolen outside the Territory." Later, in his summing up, pointing to a conflict in evidence between Baker and the accused as to whether the accused had frequently gone with Baker on his watch keeping rounds and as to whether Baker had authorized the accused if occasion arose to use the gun, the trial judge said: "You might think that that would be an improbable thing for an older man to do: to give an authority like that to a man as young as the accused. You might have an opposite view to that. At any rate, you have seen both the witnesses and you are in the position of judges in this matter and have to make judgments about whether or not the persons who have appeared before you and have spoken to you are telling the truth. It really gets down to that in the long run. It still does not avoid the fact, of course, that the onus of proof is on the Crown and that you have to be satisfied beyond all reasonable doubt that the accused had this gun in his possession with intent to deprive the owner of the gun of the use of it. On the Crown case this is not a matter of borrowing a gun; this was a matter of taking a gun without permission, with intent to deprive the owner of possession."

Doubtless the trial judge was led into his remark that the case was not one of stealing because of the terms of s. 189A of the Crimes Ordinance. No question was raised at the trial or before this Court as to whether that section is applicable to the case where the actual thief has possession in the Australian Capital Territory of what he has stolen elsewhere. The history of the provision as well as its language would need careful consideration before deciding that question. However, I express no opinion upon it. Sufficient for me to remark that it was perhaps because rightly or wrongly his Honour sensed an incongruity in applying the section to the case of a thief as distinct from that of a person obtaining possession mediately or immediately from the thief that he made the statement in the summing up to which I have called attention. In very truth and substance the case was a case of larceny. The entire contest was whether the applicant had stolen the gun. A precise direction as to the elements of larceny was therefore particularly necessary.

In my opinion, the submission of the Crown at the trial was erroneous and ought not to have had the endorsement of the trial judge. In order that an accused should be convicted of the offence under s. 189A it was necessary that the gun should have been stolen: and in the case of the applicant, that he stole it. No other offence indictable in the Territory was suggested as satisfying the terms of s. 189A (2). It was also necessary that the taking which founded the stealing was not an innocent taking under the law of New South Wales (s. 189A (3)). In this case the relevant law is the same in New South Wales as in the Australian Capital Territory. Larceny under the Crimes Ordinance 1951 A.C.T., as under the Crimes Act, 1900 N.S.W. being undefined, is as under the common law. It involved an intention on the part of the applicant to assume ownership of the gun, to deprive Baker permanently of it, to deprive him of the property in it. I use these three expressions, which are several ways of establishing the same essential element of larceny, namely, the intention to appropriate the goods to himself. To intend to deprive the true owner permanently of the possession of the goods is one form of the requisite intention. An intention to deprive him of his property in the goods is another, that is, an intention to appropriate the goods as distinct from merely to assume possession of them. Section 118 of the Ordinance does not deny the necessity for an intention in one of these forms to accompany the taking. It deals with the case of an accused who has appropriated the property and not of an accused who has only assumed possession of it. It merely ensures that the consequence of forming or having that intention is not defeated by an intention eventually to restore the property to the true owner. Thus, if the intention is to deprive the true owner of possession for a limited time, larceny is not made out. But if the intention of the taker is to exercise ownership of the goods, to deal with them as his own, an intention later to restore the property in the goods will not prevent the original taking being larcenous. Of course, in truth the thief cannot alter the ownership of the goods: but he can have an intention to do so. The real function of s. 118 of the Ordinance, and of s. 118 of the Crimes Act of New South Wales, in my opinion, is to ensure that suggestions such as are to be found in the reports of R. v. Wright noted in Carrington's Supplement to the Criminal Law, 3rd ed. (1828), p. 278; Reg. v. Phetheon [1] and Reg. v. Trebilcock [1] , do not form part of the law as to larceny in the Territory or of New South Wales as the case may be: cf. Reg. v. Johnson [2] , per Stephen C.J. [3] .

(1840) 9 C. & Pell 552 [ 173 E.R. 952]. 2. (1858) Dears. & Bell 453 [ 169 E.R. 1079]. 3. (1867) 6 S.C.R. (N.S.W.) 201. 4. (1867) 6 S.C.R. (N.S.W.), at p. 207.

Whilst there is some ambiguity in the passage which I have quoted from the summing up, it seems to me quite clear that having regard to the commendation he gave to the Crown's submissions to the jury, the trial judge intended to direct the jury that if the "borrowing" was without permission the applicant could be convicted. So I think the jury would have understood him. Such a direction was undoubtedly erroneous.

The Crown before this Court did not seek to support its submissions at the trial nor the passage in the summing up which I have quoted. It sought to support the conviction by submitting that although the summing up was defective in not having properly informed the jury as to the requisites of larceny, it did adequately place before the jury the real issue in the trial which counsel for the Crown claimed to be whether or not the applicant did intend to return the gun that same night. But, in my opinion, that was not the issue, though no doubt the jury's view as to the credibility of the applicant in his account of his intention in that respect might be a material factor in its determination of that which was the real issue, namely, whether the applicant at the time he removed the gun from Baker's possession had an intention permanently to deprive him of it. It was not enough to disbelieve the applicant when he said he intended to return the gun that evening. This the trial judge realized as appears from the passage from his summing up which I have quoted. He rightly appreciated the necessity to direct the jury as to the need for them to be satisfied to the requisite degree of the applicant's intention at the time of the taking of the gun. But, as I have indicated, he failed to tell them what that requisite intention was.

In my opinion, the applicant should have leave to appeal, his appeal should be allowed, his conviction set aside and a new trial had, it resting with the Attorney-General of the Commonwealth whether or not it takes place.

In my opinion the summing up of the learned trial judge is defective in the respect which is stated by the Chief Justice in his reasons for judgment. I agree with the order which his Honour proposes.

I have had the advantage of reading the judgments of the Chief Justice and my brother Taylor. I agree that for the reasons which those judgments express the appeal should be allowed and a new trial ordered.

The applicant was convicted upon an indictment which charged that at Canberra in the Australian Capital Territory on 28th December 1966 he did without lawful excuse have in his possession certain property, to wit, one loaded Smith and Wesson .32 calibre pistol no. 105273 the property of Brian George Baker, which said property had before then been stolen outside the Australian Capital Territory, to wit at Goulburn in the State of New South Wales, he, at the time when he so had in his possession the said property knowing the same to have been stolen. The charge was laid under s. 189A of the Crimes Ordinance 1951 A.C.T..

That section is a copy, with appropriate modifications, of s. 189A of the Crimes Act, 1900 N.S.W., which is in the following terms:

(1) Whosoever, without lawful excuse, receives or has in his possession, any property stolen outside the State of New South Wales, knowing the same to have been stolen, shall be liable to penal servitude for ten years.

(2) For the purposes of this section property shall be deemed to have been stolen if it has been taken, extorted, obtained, embezzled, converted, or disposed of under such circumstances that if the act had been committed in the State of New South Wales the person committing it would have been guilty of an indictable offence according to the law for the time being of the State of New South Wales.

(3) No person shall be liable to conviction under this section if the taking, extorting, obtaining, embezzling, converting, or disposing is not a criminal offence in the country in which the act is committed.

The section was introduced into the Act in 1924 and is contained in a part of the Act which deals with "Receivers". It follows a section which deals specifically with the act of receiving property knowing the same to have been stolen and its purpose is obvious; it deals with possession in New South Wales of property stolen outside the State in circumstances where it is established that if the act of stealing had been committed in New South Wales the person committing it would have been guilty of an indictable offence according to the law of New South Wales and if the act was a criminal offence in the country where it was committed. Although the gist of the offence is possession of property stolen outside New South Wales the section is not restricted to the mere receiving of stolen property; it is appropriate to cover the case where an accused person has stolen property outside New South Wales - and, therefore, not punishable in New South Wales for the act of stealing - and has brought the property into New South Wales and has it in his possession there. Like observations may be made with respect to s. 189A of the Crimes Ordinance which adopts the section with the substitution of the "Territory" for the "State of New South Wales".

Briefly the case for the Crown was that the applicant had stolen the pistol from Baker's home, where he was living at the time, during the morning of 28th December 1966. At about 1.30 p.m. on that day Baker noticed that the pistol was missing from his home and, thereupon, rang the Canberra police who apprehended the applicant at the home of his parents in Canberra shortly after 5.45 p.m. on the same day. The applicant admitted to the police officers and also in the course of his evidence at the trial that he had taken the pistol from Baker's home where the latter had left it after completing his rounds as a night-watchman in the early hours of 28th December. It was common ground that it had been left on a mantelpiece in the hallway of Baker's home and the case for the accused was that he had not taken it with the intention of depriving Baker of his property but with the intention, as he said, of borrowing it for the day in order to impress his parents and of returning it when he came back to Baker's house that night. He was out of work at the time and there was evidence that he had shown the pistol to his mother and that he had told her that he was assisting Baker in his duties as a night-watchman.

Upon these brief facts the only substantial question which arose was concerned with the applicant's intention or intentions when he took the pistol. For the Crown it was contended that it was unnecessary for it to establish the existence of an intention to deprive Baker permanently of his property in the pistol. This submission was based on s. 118 of the Crimes Act, 1900 N.S.W., which is in force in the Territory and which provides that "Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to his own use, or for his own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal". It is true that the trial of the applicant was not a trial for larceny but it seems to me that the provisions of this section were appropriate for consideration in the trial since there arose the question whether the applicant had committed an act which would constitute an indictable offence if it had been committed in the Territory and, also, the question whether he had committed a criminal offence in New South Wales. But the Crown submission did not deny that it was necessary for it to establish an intention on the applicant's part to deprive Baker of his property in the pistol, or, assert that it was enough for the Crown merely to establish an intended removal of it from Baker's possession.

However, the learned trial judge told the jury in the course of his summing up that it was for them to evaluate the evidence and he seems to have indicated, implicitly, to the jury that if they accepted the material part of the applicant's evidence they should acquit him. On the other hand, it was pointed out that if they did not accept it they still had to consider the question of his guilt. In other words, they still had to consider whether they were satisfied beyond reasonable doubt that the applicant had stolen the pistol. But the direction given by the learned judge was "that you have to be satisfied beyond all reasonable doubt that the accused had this gun in his possession with intent to deprive the owner of the gun; of the use of it. On the Crown case this is not a matter of borrowing a gun; this was a matter of taking a gun without permission, with intent to deprive the owner of possession".

This direction was, of course, erroneous and upon this application the Crown does not seek to support it. But it is said that having regard to the circumstances of the case his Honour's summing up, as a whole, was adequate because the only real issue in the case was whether the applicant's statement, that when he took the pistol he intended to return it that night, was to be believed. This contention is just as erroneous as the summing up was. It was not for the accused to establish that he had merely borrowed the pistol for the day and the fact that the jury, presumably, did not accept his evidence to this effect did not and could not operate in any way to discharge the onus which lay upon the Crown to satisfy the jury beyond reasonable doubt that he had stolen it. That onus still lay upon the Crown notwithstanding the jury's rejection of the appellant's evidence and it was quite impossible, having regard to the defect in the summing up, for the jury properly to approach the determination of this issue.

In these circumstances, leave to appeal should be granted, the conviction quashed and a new trial ordered.

The appellant was convicted in the Supreme Court of the Australian Capital Territory of an offence under s. 189A of the Crimes Act, 1900 N.S.W. as applied to the Capital Territory and amended by the Crimes Ordinance 1951 A.C.T.. The offence was of having in his possession in Canberra, without lawful excuse, a pistol stolen by the accused himself in New South Wales from one Baker, knowing the same to have been stolen. The prosecution had therefore to prove beyond reasonable doubt that the accused had stolen the pistol.

The main ground of appeal - and the only one with which I propose to deal - is that the learned judge did not accurately and sufficiently direct the jury about the elements of the crime of stealing. Counsel for the respondent, before us, conceded that the direction given was wrong but contended that, in all the circumstances, the Court should not interfere with the verdict. It is necessary, therefore, to consider the character of the misdirection.

There is twofold error in the learned trial judge's direction. The first is patent; the second latent. The patent error is that the direction does not make it clear that a necessary element in the crime of larceny is an intention on the part of the person who takes and carries away the property of another to deprive the owner of that property. The critical words of the direction on this point were as follows: " the onus of proof is on the Crown and that you have to be satisfied beyond all reasonable doubt that the accused had this gun in his possession with intent to deprive the owner of the gun; of the use of it. On the Crown case this is not a matter of borrowing a gun; this was a matter of taking a gun without permission, with intent to deprive the owner of possession." According to this statement, it would have been larceny had the accused taken and carried away Baker's gun without his permission but with the intention of returning it to him later.

The latent misdirection consists in the adoption by his Honour, as "sound and accurate statements", of certain propositions of law put to the jury by the Crown Prosecutor. We were informed that these propositions were in substance as follows: - "I suggest to you that "stolen" in this case does not quite mean what my learned friend has told you. There must, of course, be a taking and a carrying away and that is what happened to the gun in this case. But there is a provision in our law (s. 118, your Honour) which says that if a person has appropriated to his own use the property of another (that is he has taken it for his own use) he is not entitled to an acquittal merely because he intends eventually to return the goods. "Eventually" simply means "after events have happened" and here of course events did happen. So I suggest to you that it is not necessary for the Crown to prove that when Foster took the gun he had an intention to deprive Baker permanently of it." The reliance by the Crown Prosecutor upon s. 118 of the Crimes Act was misplaced and the statement that it was not necessary for the Crown to prove that, when Foster took the gun, he had an intention to deprive Baker of it permanently, was wrong.

The direction therefore gave the jury an entirely wrong basis upon which to convict the appellant. In these circumstances, there should be special leave to appeal, the conviction quashed and a new trial ordered.

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