Neave v Trenerry [1999] NTSC 3

particulars of the charge were that, on 12 June 1996 at Darwin, the

"did steal cash, valued at $671, the property of another."

The appellant appealed against her conviction by notice of 7 May 1998.

The facts giving rise to the charge against the appellant were not a matter of

dispute before the learned Chief Magistrate. In summary:

th June 1996, the appellant was with her daughter, aged

the appellant was pushing a pram containing her daughter along a

path or walkway leading from the Esplanade to the shore;

the appellant noticed eight Japanese banknotes (each with a

denomination of 10,000 yen) "scattered all around" on the ground;

the appellant picked up the Japanese banknotes and went with a male

friend (who she encountered on her way) to a foreign exchange

the appellant made enquiries as to the value of the Japanese

the appellant returned to the foreign exchange bureau after some ten

minutes and exchanged seven of the Japanese ba nknotes for $671;

the appellants male friend assisted in exchanging the Japanese yen

for Australian dollars by providing evidence of identification (a

the appellant gave the eighth Japanese banknote to her male friend.

On behalf of the appellant, Mr Thomson advanced a number of grounds of

appeal which can be conveniently summarised into two categories:

The learned Chief Magistrate erred in law in finding that it was not

fatal to the case for the Crown if it could not prove ownership of the

The learned Chief Magistrate erred in finding that the Crown had

established beyond reasonable doubt that the appellant did not have a

reasonable belief that the owner of the yen banknotes could not be

Mr Thomson emphasised that in order for property to be capable of being

stolen it must belong to another. Section 209(1) of the Criminal Code

",,steals means unlawfully appropriates property of another with the

intention of depriving that person of it ..." (emphasis added)

In Mr Thomsons submission, in the circumstances of the present case, the

Crown could not prove that the banknotes were "property of another": the

notes were not marked in anyway; there was no evidence the notes had been

stolen; there was no evidence that anyone had claimed to have lost such

banknotes. Accordingly, in Mr Thomsons submission, the Crown could not

disprove that the banknotes had been abandoned and, as such, were

For the Crown, Ms Blokland accepted that the Crown was obliged to prove

that the banknotes were "the property of another" � albeit that it was not

necessary to name the owner (see s306 of the Criminal Code and Bromberg

v O'Brien (1990) 72 NTR 27, holding that identification of the owner in an

allegation of stealing is mere surplusage unless the offence depends on any

special ownership of property). However, in the Crowns submission, the

circumstances of the case (in particular the value of the bankn otes and the

place where they were found) gave rise to an inference that the banknotes

The learned Chief Magistrate in his reasons for conviction, while noting that

the failure to name the owner of alleged stolen proper ty is not fatal to a

charge under s210 of the Criminal Code, made no express finding that the

such a finding is either surprising or of assistance to the appellant in the

Counsel for the appellant at trial (Mr M. Jones) focussed upon the Crowns

failure to name the owner of the banknotes in the information; he did not

submit that the Crown had failed to disprove that the property had been

In the present context, "abandoned" does not simply mean "lost" or "left".

It means that the owner has intentionally relinquished all rights of

ownership in the property (see Hibbert v McKiernan [1948] 2 KB 142). The

abandonment of goods will not lightly be inferred: see Donoghue v Coombe

(1987) 45 S.A.S.R. 330 at 333 and Dolby v Stanta [1996] 1 Qd. R. 138.

In the present case the banknotes found by the appellant were worth in

excess of $750 (including the 10,000 yen banknote given to her friend). The

banknotes were located in a public place, scattered on the ground, rather

than in some appropriate receptacle for unwanted items. The banknotes

were in good condition and were easily convertible to Australian currency.

Having regard to the value of the property, the condition of the banknotes

and the circumstances in which they were found, I consider that there was

ample evidence, from which it could be inferred, that the banknotes had not

been abandoned by their owner. In my view, there was evidence from which

the learned Chief Magistrate was entitled to draw the conclusion that at the

time the appellant found the banknotes (and later appropriated them when

she exchanged them for Australian currency), the banknotes were the

property of some person. While making no express finding to this effect, it

is apparent from the learned Chief Magistrate's reasons as a whole that he

In the absence of submissions to the contrary, it is understandable that the

learned Chief Magistrate did not make an express finding that the banknotes

were not abandoned property. I consider that the absence of such an express

finding has not occasioned any substantial miscarriage of justice.

Accordingly, I do not consider that the appellants conviction should be set

The principal issue at both the trial and the appeal concerned the appellants

state of mind at the time when she found the Japanese banknotes, and later

Section 209(1) of the Criminal Code relevantly provides:

",,steals means unlawfully appropriates property of another with the

intention of depriving that person of it ... but does not include the

appropriation of property by a person with the reasonable belief that

such property has been lost and the owner thereof cannot be

",,appropriates means assumes the rights of the owner of the

property and includes, where the person has come by the property

without stealing it, any later assumption of a right to it by keeping or

At common law, the relevant state of mind of an accused in relation to

larceny (stealing) by finding was his or her state of mind at the time of

taking possession of the property, not any subsequent intention to keep or

deal with the property as owner (see, for example, R v Thurborn (1849) 169

ER 293; R v Ashwell (1885) 16 QBD 190). The definition of "appropriates"

(supra) in the Criminal Code now makes it clear that a person who finds

lost property in the Northern Territory may be guilty of stealing whether the

appropriation of the property takes place immediately upon the finding of

the property or at some later time. It follows that, in the present context, it

was necessary for conviction that the Crown prove that when the appellant

exchanged the Japanese banknotes for Australian currency, she did no have

a "reasonable belief that such property has been lost and the owner thereof

The effect of this provision is that, if the appellant had a reasonable belief

that the banknotes had been lost and a reasonable belief that the owner could

not be discovered, she was entitled to be acquitted; but if it appeared that

she did not have one or the other of the beliefs mentioned in the provision,

the section would not provide a defence. Accordingly, it was for the

prosecution to prove either of the matters just mentioned: that the appellant

did not have a reasonable belief that the banknotes were lost, or that she did

not have a reasonable belief that the owner was undiscoverable.

Mr Thomson submitted that there was no evidence as to the appellants state

of mind when she appropriated the Japanese banknotes. He emphasised that

despite participating in a record of interview, she was not asked anything

about her beliefs as to the status of the property as being lost or abandoned,

nor the possibility of being able to discover the owner of the property.

Mr Thomson also stressed that the banknotes were not marked with anything

which could be used to identify them by an owner; nor were the notes

located near a dwelling or other premises at which enquiries could

reasonably be made about their ownership. In Mr Thomsons submission an

honest person, reasonably, would have formed the view that there was

nothing to be gained by searching for the owner of the banknotes or

reporting the find to the Police in view of the lack of identifying features of

In Alexander Gordon MacDonald [1983] 8 A Crim R 248, the Court of

Criminal Appeal of New South Wales considered how the state of mind of a

finder of property is to be established when the finder has volunteered no

information pointing to their state of mind at the relevant time. The Court

"The guilty mind or animus furandi requisite in larceny by finding is

thus the belief of the finder that the owner can be found, and unless

that belief is established beyond reasonable doubt, a conviction for

larceny is not open. The Crown of course carries the onus or proving

that belief beyond reasonable doubt, and there is no onus on the

accused in any circumstances to prove that he did not have such a

belief or that he believed the goods had been abandoned, or that the

owner could not be found (May v O'Sullivan [1955] HCA 38; (1955) 92 C.L.R. 654).

How then is the requisite belief in the finder to be established when

the finder has volunteered no information pointing to the state of his

mind at the relevant time, as is the case here? In Russell on Crime

,,In cases of taking on finding some of the strongest

circumstances to rebut the implication that such taking was

felonious ...are those which show that [the taker] endeavoured

to discover the true owner and kept the goods till it might

reasonably be supposed that the true owner could not be

The finders belief, in our view, is to be inferred from the facts and

circumstances surrounding the finding and the taking of the goods,

and in this respect regard may be had not only to what the finder

does in relation to the goods but also what he does not do that might

reasonably be regarded as consistent with the actions of an honest

man finding goods. Did the finder examine it closely to see if it

gave any clue to its owner by name tag or otherwise? What avenues

were reasonably open to the finder to locate the owner? A person

finding goods may be taken to know that the person who has lost

those goods may well retrace his steps with a view to recovering

them, and so the leaving of the finders name and address with

someone at the place of discovery may be one means of locating the

owner. It is common knowledge in our community, and the finder

would know, that the police will receive lost property handed in and

take care of it and accordingly the finder would think that the loser

might make an enquiry of the police in the area where he believes he

may have lost his property. It is common knowledge that

newspapers publish ,,lost and found columns. These and perhaps

other considerations would ordinarily be present to the mind of an

honest person finding property in a suburb of Sydney. Each case

must be looked at according to its own facts, and the place where the

property is found and the nature of the property will, in most

instances, readily indicate the avenues that are reasonably open to

In MacDonald, the Court considered (at p252) that the property (a camera

"...that could, in all probability, readily be identified by its owner

and was of such a value that it was not likely that it would have been

Notwithstanding that the banknotes in the present case were not so readily

identifiable by their owner, the learned Chief Magi strate adopted the

approach suggested in MacDonald. I consider that the learned Chief

Magistrate was correct to do so. His Worship considered all the

circumstances, favourable and unfavourable to the appellant, in assessing

whether she had a reasonable belief that the banknotes had been lost and

The learned Chief Magistrate took into account that:

the appellant did not seek to deceive the Police as to how she

at the location where the appellant found the banknotes there was no

one present to whom enquiries might reasonably have been made

the appellant took no steps to ascertain the owner of the banknotes

(for example, by reporting her find to a Police station in the vicinity;

searching lost property advertisements in a local newspaper or

advertising her find in such a newspaper; making enquiries at hotels

the appellant failed to comment on her state of mind during the

record of interview conducted by the Police (albeit she was not

expressly asked to so comment, but merely invited to say anything

else that she wished after the police had finished questioning her).

On the basis of these considerations and the circumstances generally, the

learned Chief Magistrate found while the Crown had not negatived a

reasonable belief in the appellant that the banknotes were lost, he was

satisfied beyond reasonable doubt that the appellant did not have a

reasonable belief that the owner of the banknotes could not be discovered.

I consider that these findings were open to the learned Chief Magistrate on

the available evidence. The value, condition and circumstances in which the

banknotes were found were consistent with a reasonable belief in the

appellant that the property had been lost by the owner. The same cannot be

said about the appellant having a reasonable belief that the owner was

undiscoverable. Mr Thomson submitted that the learned Chief Magistrates

consideration of the appellants failure to comment on her state of mind in

the record of interview amounted to a reversal of the burden of proof. I do

It is apparent that the learned Chief Magistrate was concerned to consider

all the circumstances. The silence of the appellant, as to her state of mind,

meant no more than there was nothing to set against the inference of guilt

arising from the evidence of the appellant finding property of substantial

value, and shortly thereafter taking steps to convert it to Australian

currency, without taking any steps at all to ascertain the propertys owner.

In such circumstances, it is difficult to see how, in the absence of evidence

as to the actual belief of the appellant, one could ever conclude that a belief

that the owner of the banknotes was undiscoverable was held on reasonable

grounds. I consider that the Crowns case was sufficient to raise a prima

facie case that the appellant held no belief on reasonable gr ounds that the

owner of the banknotes was undiscoverable. In the absence of any evidence

as to the appellant's actual state of mind (whether in the form of the record

of interview or sworn testimony) there was nothing to rebut the Crowns

prima facie case that she did not have the requisite belief.

In all the circumstances, I do not consider that there is any merit in the

appellants submissions that the Crown failed to prove that she did not have

the requisite state of mind when she appropriated the banknotes.