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[2003] VSCA 4
Court of Appeal (Vic)
2003-02-26
PHILLIPS, C.J., CHARLES, J.A. and O'BRYAN, A.J.A.
Original judgment source is linked above.
[ 2003] VSCA 4
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).
"(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."
"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.
"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.
"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.
"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."
"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."
"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."
"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 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 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."
"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].
"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."
"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."
"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."
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.
[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].
[7] Cabbage [1815] EngR 287; (1815) Russ. & Ry. 292, 168 E.R. 809; Beecham (1851) 5 Cox, C.C. 181.
[8] Medland (1851) 5 Cox, C.C. 292.
[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.
[11] [1985] EWCA Crim 1; [1985] 1 Q.B. 829 at 835-836.
[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.
R
Dardovska [2003] VSCA 4