Parker v The Queen

Parker v The Queen - [1997] HCA 15 - HCA 1997 case summary — Zoe

[14]

Sir Samuel Griffith, however, in drafting the Code adopted a different approach and in doing so anticipated the ideas now revealed in the English Theft Act 1968. Instead of adapting the older devices which provided that dishonest dealing with funds held under direction or received by agents should be deemed to be theft, he preferred the course of declaring that property held under such circumstances should be deemed to be the property of the person beneficially entitled to it, and thus by statute creating a situation where an act of fraudulent conversion would fall within the general statutory definition of stealing: see xiii of Sir Samuel's explanatory letter to the Attorney-General of 29 October 1897. This was achieved by sections of which the equivalent in the Western Australian Code are ss 373, 374 and 375. In the equivalent of s 373 the Royal Commission slightly amended Sir Samuel's draft by inserting the words "or any other money received in exchange for it or any part thereof". That Sir Samuel's objective had been achieved received judicial recognition by the Full Court of Queensland in the case of Re a Solicitor [5] . In Re a Solicitor , a solicitor to whom money had been given for a specific purpose failed either to apply it to that purpose or, on demand, to return it. The Full Court of the Supreme Court concluded that he had stolen the money. Without reference to the form in which the money had been given or into which it had been changed, Griffith CJ speaking for the Court in reference to the Code then lately enacted said [6] : Last year it was not technically stealing, though morally just as bad: now, under the Code it is stealing, and the man who does it, solicitor or not, is liable to be dealt with criminally. Similarly, a bank credit (which is a chose in action) can be "converted" if it is dealt with inconsistently with the rights of the owner of the bank credit and, if it be converted with fraudulent intent, the conversion is stealing. The same result was achieved in England by the provisions of the Theft Act 1968 UK [7] . A reflection of some of the provisions of that Act can now be seen in s 408C of the Queensland Criminal Code and the concept of converting a bank credit has been judicially recognised [8] . 1. Orton v Butler (1822) 5 B & Ald 652 [106 ER 1329]. 2. Palmer v Jarmain (1837) 2 M & W 282 [150 ER 762]. 3. [1976] WAR 74 at 78-79. 4. [1902] St R Qd 9. 5. Re a Solicitor [1902] St R Qd 9 at 10. 6. R v Kohn (1979) 69 Cr App R 395 at 407; R v Doole [1985] Crim LR 450; Attorney-General's Reference (No 1 of 1983) [1985] QB 182 at 187, 188; R v Dubar [1994] 1 WLR 1484; [1995] 1 All ER 781. 7. R v Capewell [1995] 2 Qd R 64 at 67-68, 70-71, 75.

[24]

Cases in which one who has in his hands the property of another converts that property into some other form or mixes property of another with his own have been familiar both to courts of law and to courts of equity. Courts of law were concerned with legal ownership, and courts of equity with equitable ownership, but, up to a point, as is well known, the doctrines of the two systems were identical. The passage I have cited from Frith v Cartland was cited with approval by Jessel MR in In re Hallett's Estate [16] . In that case [17] Jessel MR, citing earlier authority [18] , pointed out that the changing of property belonging to a person from one form into another makes no difference to the right of that person " "as long as it can be ascertained to be [the product of that person's property], and the right only ceases when the means of ascertainment fail" ". In that event, he said, the rule of Equity "gave you a charge - that if you lent £1,000 of your own and £1,000 trust money on a bond for £2,000, or on a mortgage for £2,000, or on a promissory note for £2,000, Equity could follow it, and create a charge". Dixon CJ and Fullagar J in Brady v Stapleton [19] said that: it would be a great mistake to suppose that the great case of In re Hallett's Estate lays down a doctrine peculiar to money. On the contrary, it extends to money paid into a bank account, and so losing its identity as money, a doctrine which equity would never have had the slightest hesitation in applying to money physically existing or to any other kind of personal property to which it could, as a matter of practical possibility, be applied In In re Hallett's Estate [20] , the Master of the Rolls says: "Supposing the trust money was 1,000 sovereigns, and the trustee put them into a bag, and by mistake, or accident, or otherwise, dropped a sovereign of his own into the bag. Could anybody suppose that a Judge in Equity would find any difficulty in saying that the cestui que trust has a right to take 1,000 sovereigns out of that bag?" (Emphasis added.) It follows that when an account holder makes a withdrawal for his own private purposes from an account containing a mixed fund, the rules of equity and the common law run parallel in attributing the withdrawal to the moneys that can lawfully be so used so far as those moneys extend. 1. (1952) 88 CLR 322 at 336-337. 2. (1880) 13 Ch D 696 at 719-720. See also Brady v Stapleton (1952) 88 CLR 322 at 337, per Dixon CJ and Fullagar J. 3. In re Hallett's Estate (1880) 13 Ch D 696 at 717. 4. Taylor v Plumer (1815) 3 M & S 562 at 575 [105 ER 721 at 726]. 5. (1952) 88 CLR 322 at 337-338. 6. (1880) 13 Ch D 696 at 711.

[115]

The criminal charges against the appellant arose following the discovery that he had drawn cheques against the campaign account for purposes apparently having nothing to do with his re-election campaign in either election but rather for personal and family purposes. The first payment, the subject of the first count in the indictment, related to a transfer on 15 January 1986, of $9,000 from the campaign account deposited into the "David Parker MLA" account operated by the appellant personally. The second payment, giving rise to the second count, was of $600 withdrawn on 3 February 1986 paid to a company for the rent of a unit in Fremantle at which the appellant was living. The third count related to a withdrawal on 7 February 1986 of $3,941.21 used to repay a personal loan to the National Australia Bank. The fourth count concerned a withdrawal of $4,000 on 12 February 1986 used to purchase share options in a named company. The fifth count concerned a withdrawal on 19 February 1986 of $13,539.46 which was paid to a credit union to pay out an existing loan to the appellant. The sixth and seventh counts concerned further withdrawals of $1,040 and $560 made, respectively, on 12 May 1986 and 25 June 1986. These sums were paid for rent on the unit in Fremantle in which the appellant was living. The eighth count concerned a withdrawal on 4 March 1988 of $8,509.42 paid to the Deputy Commissioner of Taxation on behalf of one K M Rooney. The ninth count related to a withdrawal on 23 February 1989 of the sum of $670 paid to Rentokil, allegedly for pest extermination services at the appellant's house. The tenth count concerned a withdrawal of $2,781.20 on 31 March 1989 to purchase a bank cheque to pay a security company, allegedly for enhanced personal security for the appellant. The eleventh and final count concerned a withdrawal of $13,337 on 14 April 1989 used in part to pay a deposit for renovations of the kitchen in the appellant's house ($2,124); to purchase travel tickets for the appellant and his family to visit Hong Kong ($8,213); to purchase traveller's cheques ($2,000); and to obtain cash ($1,000) for the journey to Hong Kong.

[161]

The law as enacted by this section is free from some of the complexities of the common law. Stealing, as defined, includes both fraudulent taking and fraudulent conversion. A taking or conversion is deemed to be fraudulent when done with one of the intentions described in pars (a)-(f) of s 371(2). No further state of mind is necessary It is necessary to prove that the thing stolen is the property of someone. In the same case Wilson and Dawson JJ said [12] : [At common law] 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 that 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. Brennan J added [13] : For the purposes of the crime of stealing by conversion under the Code, the inquiry into the intention of the person who is said to be the owner of the property is undertaken in order to determine whether ownership of the property has passed to the person charged, not to determine whether the property was taken invito domino. Section 373 of the Code provides, relevantly: When a person receives, either alone or jointly with another person, any money with a direction in either case that such money or any part thereof shall be applied to any purpose specified in the direction, such money [is] deemed to be the property of the person from whom the money was received, until the direction has been complied with. There follows a proviso which has no application to the present case. The term "money", referred to in s 373, is defined in s 1 of the Code as including: bank notes, bank drafts, cheques, and any other orders, warrants, authorities or requests for the payment of money. Stealing, under the Code, is defined by s 371(1) as follows: A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property. The penalty, upon conviction in the instant case, is provided by s 378(9)(b): If the thing stolen is any of the things following, that is to say:

At a glance

Court

Decision date

Before

Source

Judgment (193 paragraphs)

Parties

Cases Cited (26)