R v McKiernan[2003] QCA 43

SUPREME COURT OF QUEENSLAND

[1]  DAVIES JA:  The appellant was convicted in the District Court on 9 May 2002 of stealing a bell the property of the Corporation of the Synod of the Diocese of Brisbane on 22 September 1978.  He appeals against that conviction.

[2] It is not disputed in this appeal that the bell found in the appellant's possession was the one which had once hung in St Augustine's Anglican Church at Hamilton.  Indeed, subject to the point taken in this appeal, the case against the appellant was a very strong one.

[3] The bell, which had been in the church since 1926, disappeared on 22 September 1978, shortly after an article appeared in the Sunday Mail newspaper which, amongst other things, indicated that the bell was of ancient origin and therefore valuable.  On 9 February 2000 the appellant was found in possession of the bell.  He was attempting to sell it to an undercover police officer who had been posing as an American antiques dealer.  Upon a search conducted by police a copy of the Sunday Mail article was found in the appellant's premises.  There was also evidence that, until then, he had concealed the bell by burying it and that, in 1996 or 1997, he had admitted to another person that he had stolen it.

[4] The sole point taken in this appeal is that the Crown was required to and failed to prove that the Synod was the common law owner of the bell.  And it is submitted that, because of that requirement, the learned trial judge's directions to the jury were inadequate.

[5] There was undisputed evidence that the bell was donated to the church by a family named Thompson in 1926.  It remained at St Augustine's Church until it disappeared in 1978.  As a matter of law, something given to St Augustine's Church Hamilton by the owner thereof would become the property of the Synod.  The evidence to which I have just referred was the only evidence of ownership of the bell though there was also before the jury the article referred to in the Sunday Mail which purported to give a history of the bell's previous ownership.  Upon those facts I turn to the relevant sections of the Criminal Code ("The Code").

[6] Section 391 relevantly provides:

"(1)A person who fraudulently takes anything capable of being stolen, or fraudulently converts to the person's own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(2)A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents, that is to say -

(a)an intent to permanently deprive the owner of the thing of it;

…

(7)In this section -

'owner' includes the owner, any part owner, or any person having possession or control of, or a special property in, the thing in question."[1]

[7] Relevantly therefore the appellant stole the bell if:

1. it was something capable of being stolen and;

2. he took it with an intent to permanently deprive the owner, as defined in s 391(7), of it.

[8] The second of those elements was plainly satisfied here as Mr Carmody SC, for the appellant, readily conceded.  The Synod plainly had possession and control of the bell over a very long period and was therefore the owner of it within s 391(7);  and the evidence proved that the appellant took it with the relevant intention.

[9] However the appellant submits that the Crown did not prove that the bell was a thing capable of being stolen within the meaning of that phrase in s 391.  That submission relies on s 390 which is in the following terms:

"Anything that is the property of any person is capable of being stolen if it is -

(a)moveable;  or

(b)capable of being made moveable, even if it is made moveable in order to steal it."

[10]  The appellant's submission is that the phrase "the property of any person" in that section requires proof of ownership of the subject property;  and that, because s 391(7) applies only to s 391, that means common law ownership.  It is then submitted that the respondent failed to prove that the Synod was the common law owner of the bell when it was taken.

[11]  The purpose of s 390 is to define what things are capable of being stolen for the purpose of, amongst other provisions,[2] s 391.  It defines things capable of being stolen as, in effect, owned ("the property of any person"), moveable property.  So, while it requires proof that the property was owned at the time it was taken, it does not require proof of who owned it.[3]

[12]  In the present case the bell was plainly owned by someone at the time it was taken, because it was man-made, and hence plainly capable of ownership;  and it had not been abandoned at the time of the taking because the Synod was then exercising possession and control over it.  The requirements of s 390 were therefore satisfied here.

[13]  It is clear from what I have said that the introduction in 1943 of subsection 7 of s 391 has made proof of stealing simpler in one important respect.  Before then it was necessary to prove common law ownership in a case such as this.[4]  But that was not because of s 390;  it was because s 391 required proof of an intent to permanently deprive the owner of the thing of it and "owner" meant common law owner.  Since that date it is sufficient to prove an intent to permanently deprive a part owner or a possessor or a controller or a person having a special property in the thing of it.[5]  For that reason and because, as I have explained, s 390 does not require proof of who owns the property, it was unnecessary in the present case to prove that the Synod was the common law owner of the bell.  That is why, in R v Dwyer & Marsh[6] Stanley J, with whom Hanger and Gibbs JJ agreed, said that "Proof that Fielding had possession of the goods in terms of s 391(7) would satisfy an allegation that he was the owner of the goods", the allegation, in that case, being relevantly in terms of Form 212.

[14]  As to what must be alleged for the offence of stealing, s 564(3) of the Code says that it is sufficient in an indictment to describe an offence in the words of the Code.  To describe this offence in terms of s 398 which creates it, would be to allege "That on or about 22 September, 1978 at Brisbane in the State of Queensland, Kevin McKiernan stole a bell".  However Form 212 in Schedule 2 to the Criminal Practice Rules 1999[7] provides as the form of indictment for stealing:

"Stole [describe thing or things stolen], the property of EF (or the property of different (or unknown) persons)."

[15]  It is unclear why it is in this form.  The word "stole" involves a fraudulent taking of a thing capable of being stolen:  s 391(1).  And that includes taking any such thing with the intention of permanently depriving its owner of it.  Consequently, if "stole" is used, the additional words "the property of EF" are tautological.  On the other hand, an indictment in the form which I first set out in the preceding paragraph would be likely to give rise to a request for particulars in most cases.

[16]  For that reason, the following would be a better form of indictment in a case such as the present:

"That on or about 22 September 1978 at Brisbane in the State of Queensland Kevin McKiernan took a bell then in the possession or control of the Corporation of the Synod of the Diocese of Brisbane with the intent to permanently deprive that Corporation of the bell."

The existence of Form 212 would not prevent an indictment in the above form.[8]  And an indictment in this form would not be tautological because, unlike "stole", "took" does not involve taking with the intent to permanently deprive the owner of the thing.  It follows from what I have said that Form 212 should be amended.

[17]  Even if, contrary to the view I have expressed, it had been necessary to prove that the Synod was the common law owner of the bell at the time it was taken I think that that was proven.  Possession is not only evidence of ownership;  it is effective ownership against the whole world except someone who can prove a better title;  Russell v Wilson.[9]  Quoting from Lord Campbell in Jeffries v Great Western Railway Co[10] Isaacs and Rich JJ there stated the law as being "that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him having no title in himself is a wrongdoer and cannot defend himself by showing that there was title in some third person, for against a wrongdoer possession is title".

[18]  Consequently the evidence that the bell was given to the Synod in 1926 and remained in its possession until it was stolen proved that, when it was stolen, it was the common law property of the Synod.

[19]  It is unnecessary, in the circumstances, to deal with the complaint about the learned trial judge's directions.

[20]  The appeal must therefore be dismissed.

[21]  WILLIAMS JA:  The facts relevant to the determination of the issue raised by this appeal are set out in the reasons for judgment of Davies JA.

[22]  The indictment relevantly alleged that the appellant “stole a bell, the property of The Corporation of The Synod of the Diocese of Brisbane”.  Stealing is made a crime by s 398 of the Criminal Code; in turn the term “stealing” is defined in s 391 thereof.  One finds subsection (1) thereof incorporates the words “capable of being stolen”, which expression is defined in s 390.  Section 391 must therefore be construed as including the definition found in s 390, and when that is done the relevant provisions of s 391 read as follows:

“(1)A person who fraudulently takes [anything that is the property of any person and is moveable] … is said to steal that thing.

(2)A person who takes or converts [anything that is the property of any person and is moveable] is deemed to do so fraudulently if the person does so with any of the following intents, that is to say –

(a)an intent to permanently deprive the owner of the thing of it;

… .”

[23]  That was all the Code had to say relevant to the question now under consideration from its inception in 1900 until 1943 when subsection (7) was added; that provided a definition of “owner” limited to the use of that term in s 391.  Relevantly subsection (7) provided:

““Owner” includes the owner, any part owner, or any person having possession or control of, or a special property in, the thing in question”.

[24]  Prior to 1943 ownership was usually established by proving possession.  As was said by Isaacs and Rich JJ in Russell v Wilson (1923) 33 CLR 538 at 546:

“Possession … is not merely evidence of absolute title; it confers a title of its own, which is sometimes called a “possessory title”.  This possessory title is as good as the absolute title as against … every person except the absolute owner”.

Or as it was put by Collins M.R. in The Winkfield [1902] P 42 at 55:

“It cannot be denied that since the case of Armory v Delamirie 1 Stra. 504, … a mere finder may recover against a wrongdoer the full value of the thing converted.  That decision involves the principle that as between possessor and wrongdoer the presumption of law is, in the words of Lord Campbell in Jeffries v Great Western Railway Co 5 E & B 802 at p 806, “that the person who has possession has the property.”

[25]  A perusal of the cases, and experience even since 1943, indicates that ownership in a stealing case was established most frequently by evidence of possession; it was unusual, for example, to see evidence led as to how the possessor came to have the goods, for example, devolution by will, purchase, et cetera.

[26]  Before the 1943 amendment it was clear that the “owner” for purposes of s 391(2)(a) was the person in whom the property was vested and that included any person who was an owner by virtue of “possessory title”.  That meant that there was for purposes of s 391 an identity between the person who was the “owner” and the person who had the property in the thing stolen.  There was in consequence prior to 1943 no material distinction between the person in whom the property in the thing was (s 390) and the owner for purposes of s 391(2)(a). 

[27]  In my view when subsection (7) was added that position did not alter.  Strictly all subsection (7) did was make it clear that a “part owner” or person having “a special property in the thing in question” were included in the definition of the term “owner”.

[28]  Prior to 1943 there was no need to plead who was the “true owner” of the thing in question.  What was necessary was that the charge identify who was the owner, the person who had the “property in the thing” who was relevantly deprived “of the thing of it”.  The 1943 amendment did not alter that.

[29]  Counsel for the appellant contended that it was necessary to allege in the indictment, and prove at trial, who was the “true owner” of the goods allegedly stolen.  He submitted that that flowed from s 390, and contended that the submission was supported by a number of authorities.  In my view a careful analysis of the authorities demonstrates that his proposition is erroneous.

[30]  The first case referred to was Trainer v The King (1906) 4 CLR 126.  There Griffith CJ said at 135:  “The law of England, and it is the same here, requires the ownership of the property to be laid in the indictment and proved”.  But when his reasons, and those of O'Connor J, are perused it becomes clear that that statement was made in the context of pointing out that it was essential for the prosecution to allege and prove that the goods in question were the property of someone and were stolen from that person.  That becomes clear from passages on pp 133 and 139.  The High Court was there dealing with the common law, and when what was said is translated into terms of the Code, what was being said was that the prosecution must allege and prove that the goods were taken from the owner fraudulently; the relevant “owner” being the owner for purposes of s 391.

[31]  In R v McCoy [1938] St R Qd 249 the indictment alleged that the accused “broke and entered the counting house of the Postmaster General and therein stole a safe containing … in cash, postal notes to the value of … and stamps to the value of …”.  On appeal the prosecution conceded that the indictment was defective because “no ownership of the stolen property was laid in any person”.  Henchman J, speaking on behalf of the Court of Criminal Appeal said at 251 that:  “The evidence does not in any way indicate who was the owner of the property”.  In those circumstances the convictions were quashed.  The deficiency was not in failing to allege in the indictment who was the true owner for purposes of s 390, but rather in failing to allege (and prove) who was the owner for purposes of s 391(2)(a).

[32]  Relevant facts in R v Hempenstall [1937] St R Qd 343 were rather complicated.  The indictment charged that between certain dates the accused stole money “the property of one Eliza Burton”.  The Court of Criminal Appeal concluded that the prosecution had not proved that Eliza Burton was the owner of the money that the accused had received.  EA Douglas J said at 345-6:  “At any rate, the matter is left in such a state of confusion that it is impossible to say with certainty that this money when received by Hempenstall was the property of Eliza Burton”.  The use by that learned judge of the expression “the legal owner of the money” on one occasion in his reasons does not, in the circumstances, help the appellant here.  It is clear that Hempenstall is merely a case where the prosecution failed to prove ownership as alleged for purposes of s 391(2)(a).

[33] Trainer, McCoy and Hempenstall were all referred to by Harris J in his judgment in Anglim & Cooke v Thomas [1974] VR 363 at 374.  Those cases appear to be cited in support of the proposition that ownership of the property stolen should be proved.  Again I do not find the case of particular assistance here.  As appears from the reasons at p 373 the critical fact was that the “defendant was charged with breaking and entering a particular shop of a particular person and stealing a quantity of drugs alleged to be the property of a particular person”.  The learned judge went on to say that the “prosecution led no evidence at all to establish these facts.  …  There was no evidence at all … that the goods which were stolen were the property of … ”.  That was regarded as a serious omission in the case for the prosecution.  Relevantly for present purposes the omission was in failing to prove in that common law matter the equivalent of ownership for s 391(2)(a) of the Code.

[34]  Finally reference was made to R v O'Brien (1981) 35 ALR 473, a decision of the Court of Criminal Appeal of Western Australia.  There the Criminal Code had a similar provision to our s 391 save that there was no subsection (7).  The indictment laid ownership of the drugs allegedly stolen in the “Repatriation Commission of the Commonwealth of Australia”, however Crown counsel conceded that no evidence had been led as to ownership of the drugs.  It was pointed out that given the terms of the indictment it was necessary that the ownership of the property as alleged therein be proved.  That proposition cannot be doubted, but the reasoning does not support the contention of the appellant here.

[35]  Suffice it to say that in my view nothing said by the Court of Criminal Appeal in R v Dwyer & Marsh [1962] Qd R 84 supports the argument for the appellant here.

[36]  Form 212 of the Criminal Practice Rules 1999 provides the form ordinarily to be used where the charge is stealing.  The body of the indictment in accordance with that form would be:

“Stole [describe thing or things stolen], the property of EF (or the property of different (or unknown) persons).”

[37]  But again it seems to me clear in the light of the authorities that when that form speaks of the things stolen being the property of a person, the reference is to the owner for purposes of s 391(2)(a). 

[38]  Where a person had been in possession of a “thing” for a long period of time and that person was then permanently deprived “of the thing of it” by it being taken by the alleged thief, it is sufficient to allege in the indictment that the “thing” was the property of that person, and there would be no need to allege additionally that some other person was the true or absolute owner of the “thing”.

[39]  I also agree with all that is said by Davies JA in his reasons and with the order he proposes.

[40]  CULLINANE J:  I have had the advantage of reading the reasons of both Davies JA and Williams JA.  I agree with what each has said and with the order proposed by Davies JA.