R v Dardovska [2003] VSCA 4

Court of Appeal (Vic)|2003-02-26|Before: PHILLIPS, C.J., CHARLES, J.A. and O'BRYAN, A.J.A.

CRIMINAL LAW - Theft - Intention permanently to deprive - Whether evidence to establish intention - Failure to relate law to facts of case - Theft Act 1968 (U.K.) s.6(1)(2) - Crimes Act 1958 (No. 6231) s.73(12) (13).

I have had the benefit of reading the judgment of Charles, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

The applicant, Julie Dardovska, was born on 6 May 1955. On 20 November 2002 she pleaded not guilty to a presentment preferring five counts against her and two co-accused, Ayhan Cokacar and Haydar Mutlu, those counts being, causing injury intentionally, causing injury recklessly, false imprisonment, making a demand with a threat to kill, and, count 5, theft. The trial proceeded until 30 November 2000. At the close of the Crown case all co-accused were acquitted by direction in respect of count 4. The jury acquitted the co-accused on all remaining counts. Dardovska was convicted on count 5, but acquitted on all other counts.

The judge immediately heard a plea in mitigation, during which no previous convictions were alleged against Dardovska. His Honour then sentenced Dardovska and, without a conviction, adjourned the proceedings for six months on condition that she be of good behaviour.

Dardovska now seeks leave to appeal against conviction on the grounds that the judge erred in directing the jury as to the law of theft, and in directing the jury as to the element of dishonesty, and that the verdict was unsafe and unsatisfactory. Notwithstanding that no conviction was recorded, Dardovska is entitled to appeal the jury's verdict.[1]

The complainant, Feridun Akguner ("Akguner"), a real estate property consultant, borrowed $15,000 on 23 September 1993 from Haydar Mutlu. The loan was recorded in an agreement of that date, witnessed by Ayhan Cokacar and Akguner's wife Tulay Akguner. The agreement records that the money was due for repayment on 31 December 1996. The complainant, however, never repaid that loan and some time later was made bankrupt.

The Crown case was that on 26 April 1999 Akguner received, indirectly, a message from "Guler", who was in fact Julie Dardovska. He rang Dardovska who said that she wanted a valuation done on a property and also wanted to get into some business and needed advice. Akguner agreed to meet Dardovska the following day at 2 Howe Court in Melton, and duly arrived at the house shortly after 2.00 p.m. Dardovska then brought Akguner into the house and when they walked into the kitchen the complainant saw Ayhan Cokacar in the room and realised "that something was going on". Cokacar invited Akguner to sit at the table and shortly thereafter Mutlu came down the stairs of the house into the kitchen. Cokacar asked Akguner if he recognised Mutlu. According to Akguner Mutlu then attacked him including punching him all over his face and head. Akguner said Mutlu did not give him a chance to talk. Akguner's evidence was that Mutlu said "we're not going to move you from here, you're not going to get out from here until you pay me money enough".

According to Akguner Cokacar then told him to empty his pockets and Akguner pulled out his wallet, licence and keys and put them on a table. Dardovska then took the keys and ran outside to Akguner's car. She returned carrying Akguner's briefcase containing his laptop computer and various documents. Akguner told Mutlu and Cokacar that he had no money on him and that if they kept punching him he would not be able to see his bank manager. Meanwhile Dardovska went through the material in his briefcase, including papers, cheque books and a dictation tape recorder and a tape. Akguner said "they" took some of his papers, including some letterhead, business cards, a partly completed Justice of the Peace application form and his tape recorder and the tape. Dardovska offered him coffee or food saying "This is not a prison in here. I can offer you this, but also you are a very cruel man. You are dealing with a very good man and he doesn't deserve this. You shouldn't do that".

Akguner was allowed to leave the house shortly after 4.00 p.m. In the meantime Mutlu had calmed down and Akguner had promised to go and see his bank manager. Cokacar and Mutlu asked for $30,000. Akguner said that before leaving the house he asked for the return of his property but was not given back his tape recorder and some documents. He then took his briefcase and left the house.

After the leaving the house Akguner returned home, and later he and his wife made some telephone calls during which they spoke to Mutlu, Cokacar and Dardovska. In one of these calls Akguner asked Dardovska for the return of his tape recorder and his important papers. Dardovska replied "what tape recorder and what papers?" Akguner said "You know, dictation and also the JP application form, you have that one, and also my business card". Dardovska replied "Yeah, I don't know what you're talking about now. Now I've lost you altogether". The next day Akguner reported these matters to the police at Keilor Downs police station.

During cross-examination Akguner agreed that while he was at 2 Howe Court, Dardovska in his presence appeared to call and leave a message for the local CIB. He said that the briefcase had been taken without his permission and that the documents taken were his "necessary papers". He said "Why should I let her touch my things?" He said that in addition to seizing these documents, Dardovska had written notes of a number of his identifying details, including his Inquiry Agent's licence number and driver's licence details.

On 3 May 1999 Detective Senior Constable Highthorn and other police went to premises in Fairfield where they were met by Dardovska, Mutlu and Cokacar. In Dardovska's handbag they found Akguner's business card. Under a cushion in a lounge chair they found a letter addressed to a Mr Ali Suga attached to a photocopy of the complainant's passport, and "an application for a JP in the name of Akguner". In the same place they found a letter of advice concerning Akguner's bankruptcy and a "JP appointments information sheet". They also found an A4 pad containing Akguner's personal information and other documents associated with him. In a police interview conducted with Dardovska that day, she said that Cokacar was her partner, that she contacted Akguner's wife so as to make contact with him in respect of some money he owed Mutlu, and that Akguner was a "con man" who had taken $15,000 from the 60-year-old Mutlu. She said that Cokacar suggested that she arrange a meeting with Akguner using the pretext of wanting to do some business. Dardovska agreed that she went at one point in the meeting to Akguner's car with his keys. She said that Akguner had given them to her and told her to look for herself. She retrieved the briefcase and opened it in the house. She was looking for documents to prove his address. She found the JP application, including the photocopied passport, a letterhead of the business and a business card. When Akguner left, she showed him what she had and said that he did not ask for the documents back. She said he did not give her permission to keep them but did not mind her taking the documents. She said it was her intention to take them to an appointment with the head of Melton CIB. She agreed that Akguner had subsequently rung her, but had not asked her for anything to be returned to him.

Dardovska gave evidence at the trial, broadly consistent with the account she had given in her record of interview. She said she arranged to meet Akguner using a pretext. He came to her house and she let him inside. Akguner was then confronted by the two co-accused, who spoke to him about the unrepaid loan. Dardovska made coffee and offered it to Akguner, but he refused it. The purpose of Dardovska and her co-accused was to confirm Akguner's address and it was for this purpose that Akguner directed her to documentation in his car. Under his direction she removed from that briefcase the documents later found at her home. She found the JP application and "really lost it", and took him to task about his dishonesty. In front of him she then telephoned the Melton police station, asking for the CIB section. The officer she sought, Senior Sergeant Paul Cassidy, was not there and she left a message asking for him to call her back. Cassidy did return the call either the next day or the day after that.

Dardovska said she retained the complainant's documents, including the JP application with the intention of handing them to Cassidy "and explain the whole situation of Mr Feridun Akguner". She said that in the conversation she had with Akguner she told him "This is what I have, I am going to take it and I am going to the police station". She said she thought she was doing the right thing. She had put the documents under the cushion just to keep them together.

In cross-examination Dardovska confirmed that she was aware that the complainant was a bankrupt, and that Mutlu had exhausted all legal avenues available to recover his money. She accepted she had told a number of falsehoods in order to arrange the meeting. In response to the question "You've denied on occasion[s] taking the documents that were found in your possession?" she replied "They were pieces of paper that I took; I took them with his permission and told him what I was going to do with them specifically".

While the prosecution evidence was still being called, the judge discussed with counsel Dardovska's defence to the count of theft, in the course of which counsel said that Dardovska's first defence was that she had not intended permanently to deprive Akguner of his documents, in that she intended to give them to the police so that justice could take its course. Secondly, he argued that there had been no dishonesty in that after the conversation with Akguner, Dardovska thought that she was lawfully able to take the documents (presumably either because she thought Akguner had consented to her doing so or because she thought she was entitled to take them to show them to the police). I should add that if Dardovska took the documents with the express or implied genuine (i.e. not forced) consent of Akguner the better view seems to be that there was no "appropriation" at all within the meaning of s.72(1) of the Crimes Act 1958.[2] Furthermore, if Dardovska believed that Akguner had genuinely agreed to her taking the documents she could not be said to have acted dishonestly in taking them[3] and a person cannot be guilty of theft if she believes she has the right to deprive the victim of the property, although the belief must be belief in a legal, not a moral, right.[4] Insofar as the intent permanently to deprive is concerned it is also necessary to set out the terms of s.ss.(12) and (13) of s.73 of the Crimes Act 1958 which provide as follows -

"(12) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. (13) Without prejudice to the generality of sub-section (12) where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other's authority) amounts to treating the property as his own to dispose of regardless of the other's rights."

When the judge came to deal with the count of theft nearing the end of his charge, his Honour defined the verb "appropriate" and told the jury that an assumption of rights with the owner's consent was not an appropriation within the meaning of the section. However his Honour then said -

"What does it mean to assume the rights of an owner? It means to usurp the rights of the owner by, for example, physically taking my property. In this case I do not think there is an area of dispute. Dardovska took these documents. There is a dispute about a cassette recording, but in respect of the documents I do not think there is any dispute that she took the documents and therefore appropriated documents."

In my view, with respect, this was mistaken, because Dardovska had said in evidence that she had permission from Akguner to take the documents and, as his Honour had said shortly beforehand, a taking with consent would not amount to an appropriation.

His Honour then turned to the element of intention permanently to deprive. The charge continued as follows -

"The mental intention necessary to constitute stealing is that you should intend permanently to deprive the other person of the property. It does not matter whether you propose to keep it or sell it or break it up for scrap or whatever, if your intention is that the owner will not get it back, then you have the necessary intention to constitute this element of this offence, and as a further extension of that which is provided in the Crimes Act, and it is this: a person appropriating property belonging to another, that is a person taking someone else's property, without meaning the other permanently to lose the thing itself, is nevertheless to be regarded as having the intention of permanently depriving the other person of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights and that may be relevant here. You may have to consider whether the Crown has established that Ms Dardovska and/or the others intended to treat these documents as their own, to dispose of regardless of the rights of Mr Akguner, ...".

In this passage his Honour introduced for the first time in the charge reference to s.73(12) of the Crimes Act. I shall return to the history and reach of this sub-section later, but for the moment I note that in doing so, his Honour did not include mention of the contents of the last half of s.s.(12), dealing with a "borrowing or lending". Furthermore his Honour did not assist the jury by relating the concept of "treating the thing as his own to dispose of regardless of the other's rights" to the facts of this case.

At the end of this passage of the charge, his Honour repeated a reference to the contents of s.73(12) and then said -

"Then she says in any event I took the documents believing that I had a right in law to take those documents because I took them for the purpose of giving them to the police and therefore I was not acting dishonestly. In that context I remind you that there is no legal right in a person to take documents from somebody else for the purpose that she expresses was her purpose in that circumstance. That is what she says about it."

This passage is, with respect, open to the objection that the emphasis on the absence of any legal right might also have misled the jury. His Honour had previously dealt with the question of consent, which was the only basis on which it could have been said that Dardovska had a legal right to take the documents. The real issue at this point was not the existence of any right to take the documents but whether the Crown had satisfied the jury beyond reasonable doubt that Dardovska did not believe she had a right in law to take the documents.

Shortly afterwards the judge told the jury that he was not going to summarise the evidence unless they asked him to do so. With the greatest of respect this was unfortunate. The failure to summarise the evidence and to relate the facts and issues raised by counsel to the actual charges was recently the subject of very critical comment in R. v. Candice De'Zilwa[5]. In the present case the trial had commenced on Tuesday 20 November, the charge was delivered on Wednesday 28 November and the jury verdict was returned by majority on Friday 30 November. Both the law and the facts relating to this count were complex and involved a number of difficult issues for the jury. The judge himself recognised this in saying to the jury that this count was "far more complex than the first three we have dealt with". The difficulty in relating the accused's defences to the facts had also been demonstrated in the lengthy discussion which had taken place during evidence when counsel sought to explain Dardovska's defence as to count 5 and by his Honour's understandable difficulty in following the explanation of these defences. Furthermore, the authorities dealing with s.6 of the English Theft Act 1968 (to which I shall turn later) from which s.73(12) and (13) are taken, repeatedly stress that when the sub-sections are relied on before the jury, it is essential for the judge to relate their operation to the alleged facts. This was not done in the charge in the present case.

The jury retired to consider their verdict and some hours later returned with a question in relation to the count of theft. The wording of the question escaped the transcript tape, but it is clear that the judge was asked again to explain the law relating to the charge of theft. In answering the question, his Honour followed somewhat the same path as had been taken during the charge. When his Honour came to the question of dishonesty his Honour said -

"So in order to establish that these documents were taken dishonestly, you have to be satisfied, first of all, that Ms Dardovska had no legal right to take them, and in the context of this case I cannot see that there is a legal right to take them, but also you have to be satisfied beyond reasonable doubt that she knew she did not have a legal right, that she did not believe she had a legal right to take these, but she took them anyway."

Although his Honour had shortly beforehand again, correctly, with respect, mentioned that if a person takes documents belonging to another with that person's consent, then there is no appropriation within the meaning of the Act, the above passage expressed to be "in the context of this case" again risked withdrawing from the jury the issue as to whether the complainant had consented to the issue of dishonesty. Shortly afterwards his Honour said "It was a taking, there is no dispute, of documents, and therefore of property."

During the answer to the jury's question, the judge on three more occasions mentioned the first half of s.s.(12) of s.73, of which the following is an example -

"Then she says: All right, if he did not consent and if you are not satisfied that I believed he consented, I took them not intending to deprive him of them forever, permanently, but in order to give them to the police so that the police could do whatever is necessary to bring to an end the sort of behaviour that I understood that he had carried on. In that context, if that is so, then you do get to consider this question that I have just been over with you, that is, whether or not her intention was to treat the documents as her own, to dispose of, regardless of Mr Akguner's rights. If you are satisfied that she had that intention, that is the Crown satisfied you she intended to treat the documents as her own to dispose of, regardless of Mr Akguner's rights, then there would be a theft if you are satisfied of the other items and you would be entitled to find her guilty. Then she says in any event I took the documents believing that I had a right in law, that is, I had a right, not a moral right or an ethical right or any, but I had a legal right to take these documents for the purpose of giving them to the police and therefore I did not act dishonestly. In respect of that I tell you there is no legal right in a person to take documents in the circumstances, as I understand is alleged here, for the purpose of taking them to the police to see what they can do about stopping him being a JP or whatever else, but that is the other matter that you would have to consider."

The first sentence of the passage last quoted reverses, with respect, the onus of proof. The reference to s.73(12) again makes no mention of the last half of the sub-section and again is made without relating the sub-section to the alleged facts. The last paragraph in the passage quoted also emphasises once more the absence of any legal right in a person to take the documents in the circumstances, once more risking withdrawing from the jury the question whether the complainant consented insofar as the issue of dishonesty was concerned, as well as possibly distracting the jury from one of the principal issues for their consideration, which was whether they were left with a reasonable doubt that Dardovska took the documents believing that she had a right in law to do so.

I turn then to s.73(12), which is contained in Division 2 of the Crimes Act 1958, and was introduced by the amending provisions of the Crimes (Theft) Act 1973, modelled on the Theft Act 1968 of the United Kingdom. The decision to make these amendments to the Victorian Crimes Act followed from a detailed report of the Chief Justice's Law Reform Committee, which recommended what was basically an adoption of the Theft Act 1968 with minor alterations. Sub-sections (12) and (13) of s.73 were taken verbatim from s.6(1) and (2) of the Theft Act 1968.

Before the 1968 legislation was enacted in the United Kingdom, an "intention permanently to deprive" as an element in the crime of larceny had troubled the courts on many occasions, particularly in circumstances where the accused could only be shown to have had what might be called a conditional or reckless intention to appropriate. There were three situations in which courts had found an intention permanently to deprive in such circumstances: first, where a person took property from the owner intending to return the property only if the owner paid for it, referred to as the "ransom principle"[6]; secondly, where the intention was to return the property only after it had undergone some fundamental change of character, the "essential quality principle"[7]; and thirdly, where a person pawned another's property without his consent, hoping to be able to redeem the pledge, but without being certain of his ability to do so, the "pawning principle"[8]. The intention of the House of Commons when passing the Theft Act 1968 was that s.6 of that Act was to be a "restatement of the law with regard to those cases which might not literally amount to a deprivation of the ownership, which had been so regarded from time to time". The passage of the Theft Act and its metamorphosis from the recommendations of the U.K. Criminal Law Revision Committee into the final form of the Theft Act is traced in an illuminating article by Professor J.R. Spencer which also explains the pre-existing common law.[9] Professor Spencer said of s.6 that it "sprouts obscurities at every phrase". The obscurity then first-mentioned is what is the relationship between the two clauses of s.6(1), namely, whether the first clause of the sub-section lays down a general principle to which the second clause makes a limited exception, in the case of an appropriation by borrowing or lending; or whether the second clause entirely governs the first, restricting the scope of the apparently general principle to cases where property has been borrowed or lent. I think that in Victoria the answer to this question is, for s.73(12), that clearly the first of these two explanations is correct, having regard to the explanatory memorandum which said of the two sections (they were then numbered (13) and (14)) that -

"Sub-section (13) states that a person is to be regarded as intending permanently to deprive another of his property if he intends to treat it as his own regardless of the other's rights, even though he does not mean the other permanently to lose the thing itself. Specifically, a borrowing or lending of another's property may amount to a permanent deprivation if and only if the circumstances and the period of time in question make the transaction equivalent to an outright taking or disposal. Sub-section (14) provides a rider to sub-section (13). It deals with the case of one who, having another's property, parts with it under a condition as to its return which he may not be able to perform, and does so for his own purposes and without the owner's authority. For example, if John, being short of funds, takes William's transistor radio and pawns it, he is to be regarded as having intended to deprive William permanently of his radio. Most of the modern decisions under the present law are to the same effect."

Section 6 of the Theft Act 1968 has been subjected to highly critical comment by academic authors. For example, Professor Glanville Williams said of it[10] -

"In view of the grave difficulties of interpretation presented by s.6, a trial judge would be well advised not to introduce it to the jury unless he reaches the conclusion that it will assist them, and even then (it may be suggested) the question he leaves to the jury should not be worded in terms of the generalities of the sub-section but should reflect those generalities as applied to the alleged facts."

These observations were quoted with approval by the Court of Appeal in Reg v. Lloyd[11]. The suggestion that a judge should exercise caution in referring a jury to s.6 of the Theft Act 1968 and then only with a careful explanation of the application of the section to the alleged facts is made by a number of the commentators.[12]

The courts have not, however, consistently accepted that s.6 of the Theft Act (or s.73(12) of the Crimes Act 1958) is limited precisely to the previous common law extensions of an intention permanently to deprive. In Reg v. Warner[13] the accused had taken a tool box from the outside of a workshop where the box had been left, to premises nearby, without the owner's knowledge or consent. He said in evidence that he would probably have kept the tool box for an hour and then returned it to the place where he had found it, his intention being to inconvenience the owner. Edmund Davies, L.J. said of s.6 of the Theft Act that "nowhere does it abandon the basic conception both of the common law and of earlier legislation that there can be no theft without the intention of permanently depriving another of his property" and later stated -

"The essential question was whether the accused man had ever formed the intention to deprive the owner indefinitely of the use of his tools. If he had, then he could in certain circumstances be regarded as intending to treat the thing as his own to dispose of, regardless of the other's rights, within the meaning of s.6(1). But if this was not so, if, for example, his intention was to deprive the owner of the use of his goods for a limited period, the precise length of which he had not yet decided upon, but fully intending to return them to their owner in due course, this would not necessarily justify conviction for theft and in the majority of cases probably would not do so."[14]

In Cocks[15] the accused had seized a handbag from a woman intending to take back £5 he had given her in exchange for promised intercourse. When intercourse did not take place he seized the victim's handbag to take back his £5, with such violence that the handle came off. The judge put it to the jury that by virtue of the terms of s.6(1) of the Theft Act 1968 they might consider that the accused was a person who had appropriated the property and had dealt with it regardless of the rights of the owner over it in treating the handbag as his own. The accused's case was, of course, that he had only taken the handbag to regain his £5 and did not intend to keep the bag. James, L.J. said[16] -

"In this particular case the result of the direction given by the judge to the jury was that the jury were left in the frame of mind that they could disregard the question whether, at the time of taking the handbag from the lady, the appellant had formed the intention of permanently depriving her of it and the jury were thus deprived of considering one of the matters which it was essential for them to consider in coming to a just and true verdict in this case."

In Reg v. Lloyd[17] the appellant was a cinema projectionist, who had secretly removed feature films due to be shown in the cinema, and lent them to two others who made master videotape copies of the films, the films then being returned before their absence from the cinema was noticed. Pirated videotape versions of the films were then made and sold. Lloyd and the others were tried on a count of conspiracy to steal, and the judge directed the jury to consider s.6(1) of the Theft Act 1968. The Court of Appeal allowed the appeal holding that the appellant's intention was temporarily to deprive the owners of the films, which was the opposite of an intention permanently to deprive. In addition to the comments previously noted, the Court stated[18] its agreement with Professor Griew that "Section 6 should be referred to in exceptional cases only. In the vast majority of cases it need not be referred to or considered at all." After referring to the passage from Professor Glanville Williams previously quoted, Lord Lane, C.J., delivering the judgment of the Court, said[19] -

"We would try to interpret the section in such a way as to ensure that nothing is construed as an intention permanently to deprive which would not prior to the Act of 1968 have been so construed. Thus, the first part of section 6(1) seems to us to be aimed at the sort of case where a defendant takes things and then offers them back to the owner for the owner to buy if he wishes."

The Court took the view that it was concerned with the second part of s.6(1), namely a "borrowing or lending" and that these films could be said to have been "borrowed by Lloyd from his employers in order to enable him and the others to carry out their "piracy" exercise"[20].

In Coffey[21] the appellant had obtained machinery using a worthless cheque. His defence at his trial was that he had been in dispute with the victim, who had refused to negotiate with him a resolution of the dispute. Accordingly, he had decided to exert pressure by obtaining and keeping the machinery until he got what he wanted. It was not clear exactly what the appellant wanted or what would happen to the machinery if he did not achieve his purpose. The appellant appealed on the ground that the judge's summing up had not fully or accurately stated the law as to intent and dishonesty. The case is very shortly reported, the following passage being included in the extract of the Court's decision[22] -

"This was one of the rare cases where it was right for the judge to bring section 6(1) before the jury. The judge could usefully have illustrated the first part of section 6(1) by the expression `equivalent to an outright taking or disposal'. If they thought that the appellant might have intended to return the goods even if the victim did not do what he wanted, they would not convict unless they were sure that he intended that the period of detention should be so long as to amount to an outright taking. Even if they did conclude that the appellant had in mind not to return the goods if the victim failed to do what he wanted, they would still have to consider whether the appellant had regarded the likelihood of this happening as being such that his intended conduct could be regarded as equivalent to an outright taking."

The editor of the Criminal Law Review commented[23] on this case that -

"Since Lloyd it has been clear that section 6 must be approached with caution and will generally be construed only to include those intents which would have amounted to an intent permanently to deprive at common law and under the Larceny Act 1916. This clearly included the state of mind of a person who intended that the owner should have his property back only by buying it; and it seems clear that the same principle must apply where the appropriator demands some other consideration such as a ransom. The present decision casts no doubt on the validity of this principle. It makes clear that the jury must be satisfied that the defendant intended not to return the property if he did not get what he wanted or, at least, that he intended to keep it so long as to be `equivalent to an outright taking'; e.g., `when the virtue' had gone out of the thing."

In this State, the Full Court did not agree with the view of Professor Glanville Williams that s.6(1) of the Theft Act 1968 is virtually of no practical importance. In Sharp v. McCormick[24], the accused was intercepted by police and found in possession of a motor car coil, which he admitted he had taken from his employer dishonestly and without permission. He said he intended to fit it to his car and added that if it had turned out to be the wrong size he would have returned it to its owner. He was then charged with theft. The magistrate had upheld a submission that because nothing more than a conditional intention had been proved there was no case to answer. On review Murray, J. said[25] -

"If the facts in the present case establish that the defendant intended to keep the coil unless he later decided to return it then his intention at the time of the appropriation is sufficient to establish theft under s.72(1). If the question is posed the other way, namely that the defendant intended to return the coil unless he later decided to keep it, then it appears to me that the appropriation would fall within the first limb of sub-section (12). His reservation of the probability or possibility of keeping it would amount to an intention to treat the coil as his own to dispose of regardless of the owner's rights. It must be remembered that the operation of sub-section (12) depends upon the absence of an actual intent permanently to deprive the owner of the property in question at the time of the appropriation. It follows that what must be examined is the intention of the respondent at the moment he appropriated the coil. The evidence establishes that his intention at that time was to take the coil to see whether it fitted his motor car in which case to retain it and otherwise to return it to his employer. To say that his intention to return to his employer if it did not fit his motor car was an intention to have regard to the rights of his employer is in my opinion little short of an abuse of language. When the respondent took the coil he was quite clearly treating the coil as his own to dispose of as he saw fit and he was paying no regard to the rights of the true owner. His stated intention of returning it if it did not fit his car was simply a matter of choice on his part which he may or may not have carried out when the time came. The rights of his employer in relation to the property were completely ignored at the time of the appropriation."

Finally, in Fernandez[26] the Court of Appeal considered the case of a solicitor who had been convicted on two indictments of offences involving mortgage fraud. The relevant count related to money which the appellant had transferred from his client's account to his bookkeeper, for investment in a firm of licensed backstreet money lenders of which the bookkeeper was a partner. The money disappeared. The bookkeeper claimed to have returned the money to the appellant, but the appellant disputed this. It was the Crown's case that the appellant had stolen the money either when he passed it to the bookkeeper for investment, or when the bookkeeper gave it back to him, if indeed he had done so. At the trial the judge directed the jury as to an intention permanently to deprive, introducing consideration of s.6 of the Theft Act. Auld, L.J., speaking for the Court[27] said -

"In our view, s.6(1), which is expressed in general terms, is not limited in its application to the illustrations given by Lord Lane CJ in Lloyd. Nor, in saying that in most cases it would be unnecessary to refer to the provision, did Lord Lane suggest that it should be so limited. The critical notion, stated expressly in the first limb and incorporated by reference in the second, is whether a defendant intended `to treat the thing as his own to dispose of regardless of the other's rights'. The second limb of sub-section (1), and also sub-section (2) are merely specific illustrations of the application of that notion. We consider that s.6 may apply to a person in possession or control of another's property who, dishonestly and for his own purpose, deals with that property in such a manner that he knows he is risking its loss. In the circumstances alleged here, an alleged honest disposal of someone else's money on an obviously insecure investment, we consider that the judge was justified in referring to s.6. His direction, looked at as a whole, did not water down the requirement that the jury should be sure of an intention permanently to deprive as illustrated by that provision."

In the present case Mr McArdle for the Crown submitted that the charge had included orthodox directions on the law of theft, and that, as to the intention to deprive, if Dardovska had given the documents to the police she would have put it out of her power to return the documents to Akguner. He said, with every justification, that the approach she should have taken to the matter was to go straight to the police without the documents. Mr McArdle also submitted that if Dardovska's defence was a belief in a legal right to take the documents, such a belief had to be a reasonable one, an argument which in my view, however, is not consistent with R. v. Salvo[28].

I have referred at some length to a number of the cases dealing with s.6 of the Theft Act 1968 and s.73(12) for the purpose of demonstrating the nature of the intention which has usually been said to justify the exceptional course of referring a jury hearing a charge of theft to these provisions. The present case is plainly not one of the three types earlier mentioned which at common law established an intention permanently to deprive in the extended sense. There was no suggestion of ransoming or pawning, nor was there any intention that the documents should only be returned after undergoing some fundamental change of character. The applicant, it may at once be accepted, had no legal right to take the documents to the police. But nevertheless I find it surprising that her actions might have been thought to have involved any intention of permanently depriving Akguner of the documents in the relevant sense. Dardovska clearly had no intention of obtaining any form of financial advantage from taking the documents, which were in any case worthless. She had, in Akguner's presence, rung the Melton Police Station. There was no reason to doubt her defence that she was outraged that Akguner was applying to become a Justice of the Peace and wanted the police to see the documents, to draw their attention to her argument that he should not succeed in that application. There was no obvious reason why the documents would not, once the police had seen and possibly copied them, have been returned to Akguner. Insofar as s.73(12) is concerned, although Dardovska had no entitlement to take the documents from Akguner, her intention, far from treating the documents as her own to dispose of regardless of Akguner's rights, seems to have been rather to insist to the police that they were in fact Akguner's documents, and that the police should take notice of them accordingly. Even if the documents had had some value, the action of taking them to the police for them to inspect could not have resulted in any fundamental change to the character of the documents or any reduction in their value.

We were not told in any of the papers before the Court, or in argument, how it came about that s.73(12) was raised in the case, whether it had first been mentioned in argument or address by either counsel or whether it was the judge himself who first raised it in the charge. The addresses of counsel were not included in the appeal papers. No exception was taken by counsel at the end of the charge itself to the fact that the sub-section had been raised, although there was a lengthy exception taken after the judge answered the jury question which bore on issues involving the sub-section. I very much doubt that this was one of the exceptional cases in which the sub-section should have been raised at all. But if any reference to it was to be made, the judge was obliged, with great respect, to give the jury assistance as to how to apply the section to the alleged facts. Furthermore, his Honour did not mention, as I have said, the second clause of s.73(12). The present case might well have been

thought to be an example of a borrowing for a period[29], in which case, if s.73(12) was to be mentioned, the jury would have had to consider whether, as in Coffey, Dardovska regarded the likelihood of Akguner not having the papers returned to him as being such that her intended conduct could be regarded as equivalent to an outright taking.

For all the reasons previously given it is, I think, clear that the conviction on the count of theft cannot be sustained. The grounds for leave to appeal against conviction would, in my view, have been sufficiently established for the reasons given in paragraphs [16] to [22] above, and all that I have said in relation to s.73(12) is thus unnecessary to, although I think strongly supportive of, this conclusion. I am obliged to mention this matter because s.73(12) was barely touched upon in argument by counsel, and none of the cases I have mentioned in relation to it were cited to us during counsel's arguments.

In my view the appeal must be allowed. Mr McArdle, having regard to the penalty imposed below, the period of the adjournment having long since expired, did not ask us to direct a new trial. But I should add that, having regard to all the circumstances of the case, I would not myself have been prepared in any event to order a new trial on this count.

The appeal should be allowed, the verdict below set aside, and in lieu thereof the Court should direct that the applicant be acquitted on count 5.

I have had the advantage of reading in draft the judgment of Charles, J.A. I agree in his reasons that the appeal should be allowed, the verdict of guilty set aside, and in lieu that a verdict of acquittal be entered.

[1] R. v. Celep [1998] 4 V.R. 798.

[2] R. v. Morris [1984] UKHL 1; [1984] A.C. 320; Criminal Fraud, Lanham, Weinberg, Brown and Ryan (1987) at 5.

[3] R. v. Lawrence [1971] UKHL 2; [1972] A.C. 626 at 632.

[4] R. v. Salvo [1980] VicRp 39; [1980] V.R. 401, at 420, 426-440.

[5] [2002] VSCA 158, see esp. per Ormiston, J.A. at [4]-[6].

[9] J.R. Spencer, "The Metamorphosis of Section 6 of the Theft Act" [1977] Crim. L.R. 653; see also Smith and Hogan, Criminal Law, 10th ed. (2002) at 554-555.

[10] Textbook of Criminal Law, 2nd ed. (1983) 719.

[12] Griew, The Theft Acts, 7th ed. (1995) at 2-103; A.T.H. Smith, Property Offences, (1994), 6-27 Professor Griew emphasised that s.6 "should be referred to in exceptional cases only". Dr Smith said "Because of its difficulties, a judge would be well advised to avoid referring a jury to the section when justice can be done without it, and if he refers to it he should assist the jury by being specific about its application to the facts of the case." See also Sir John Smith, The Law of Theft, 8th ed. (1997), 2-127 - 2-128.

[23] Presumably Sir John Smith, at 499-500.

[28] [1980] VicRp 39; [1980] V.R. 401, at 420, 426; see also Lanham, Weinberg, Brown and Ryan, op. cit., at 33.

[29] Cf. Lloyd and Coffey where in each case property was taken for an indefinite period without the knowledge or consent of the owner, in Lloyd to inconvenience the owner, and in Coffey to exert pressure on the owner in negotiation.

At a glance

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Judgment (84 paragraphs)

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