R v Stevens[2014] QCA 286

SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  On 15 May 2014, after a trial in the District Court, the appellant was found guilty on count 3 on a three count indictment, stealing a bobcat loader, the property of Nifra Developments Pty Ltd (“Nifra Developments”) or Suncorp Metway Insurance Limited.  The appellant appeals on the ground that:

“… the verdict was unreasonable as the finding that the conduct alleged involved a fraudulent conversion was not reasonably open on the whole of the evidence.”

The evidence before the jury

[2] A bobcat owned by Nifra Developments was stolen on 24 January 2008.  The appellant purchased the bobcat via an intermediary, Steven Packman, from one Joey Patten in about mid-2008.

[3] Later in 2008, Scott Bednall, a valuer, who examined the bobcat consequent upon an application for finance made by the appellant, discovered that the bobcat was stolen property.  He telephoned the appellant on 15 August 2008 and had a conversation with him about the bobcat.  That telephone conversation and the others referred to below were lawfully recorded.

[4] In the 15 August 2008 telephone conversation Mr Bednall informed the appellant that the bobcat had been stolen and that he had telephoned the owner to make sure that “it hadn’t been recovered or anything”.  He told the appellant that he had not “told them where it is or anything” but confirmed that the bobcat had been reported stolen.  The appellant said that he would find his paperwork for it “[and] see what happens.  Probably best thing, I just go and get your (sic) money back and tell them to fuck off.”

[5] On 15 October 2008 the appellant telephoned a person who identified himself as Justin.  The following conversation took place.  M1 refers to Justin.  M2 refers to the appellant.

“M2I bought a bobcat from UI and he rang up to get it valued, said that he rang someone with some numbers, they said it was stolen. I took it – I rang the guy that it [came] through and told him to come and fucking get it and give me my money back.

M1So you got your money back out of it?

M2Yeah.

M1Okay, righto.

M2That was the next day.

M1Mmm hmm.

M2I wasn’t there when he was there and he rang me and I organised it the next day and it was – a guy come and picked it up and fucked it off. And I rang him back and told him that you know, I – it was through someone through someone and it wasn’t that fucking cheap, it was cheap but not-

M1-Not ridiculous.

M2You know, and um, the story that I got when I – after I got my money back was that the guy who owned it did it as an insurance job.

M1Mmm hmm.

M2But like I said, I didn’t want nothing to fucken do with it so the next day, it got picked up and I got my money back.

…

M2Yeah, well it – like I know I wasn’t going to ring the cops and tell them because I wouldn’t have got my fucking money back.

…

M2So I just told the guy who organised it, fucking whoever he got it from, get my money back and take the fucking thing and I never want to see it again.”

[6] On 16 October 2008 the appellant told a person named Michael of his telephone call from Mr Bednall and said in effect, that after his conversation with Mr Bednall he telephoned the person he had got the bobcat through “and said I’ve been told this, come and get the fucking thing and give me my money back … so that’s what I did”.  On the trial Mr Packman gave evidence that the appellant told him that the bobcat was on “the stolen list” and that the appellant had told him to inform Mr Patten to take the bobcat back.  When questioned by police on 10 November 2009, the appellant denied any knowledge of the bobcat or of his discussion about it with Mr Bednall.

The appellant’s argument

[7] Counsel for the appellant’s submissions were to the following effect.  On the evidence before the jury it was not open for the jury to be satisfied beyond reasonable doubt that the appellant had any intention beyond recovering the money he paid for the bobcat and distancing himself from it.  The evidence was insufficient to establish that the appellant actually turned his mind as to what impact his returning the bobcat to the person he “bought” it from would have on the unknown owner, let alone satisfy a jury that he had positively formed an intention to permanently deprive the unknown owner of it.

Consideration

[8] Section 391 of the Criminal Code (Qld) relevantly provides:

“391Definition of stealing

(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;

…

(4) In the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it.”

[9] The primary judge’s summing up was not criticised.  He relevantly directed the jury as follows:

“Now, the third thing that has to be proved is that Mr Stevens converted the thing to his own use or to the use of another person. Dealing with a thing in a manner inconsistent with the right of the true owner amounts to a conversion, provided it’s also established that there’s also an intention on the part of the defendant, in doing so, to deny the owner’s right or to assert a right which is inconsistent with the owner’s right.”

[10] In R v Angus,[1] Pincus JA, with whom the other members of the Court agreed, observed:

“… the Code requires not just passive possession, but an act of conversion; that must be or include a physical dealing with the goods and the dealing must in my opinion be such as to be inconsistent with the true owner’s rights.”

[11] Atkin J, in Lancashire and Yorkshire Railway v MacNicoll,[2] defined “conversion” as follows:

“It appears to me plain that dealing with goods in a manner inconsistent with the right of the true owner amounts to a conversion, provided that it is also established that there is also an intention on the part of the defendant in so doing to deny the owner’s right or to assert a right which is inconsistent with the owner’s right.”

[12] There is no doubt, as the appellant’s counsel contends, that the appellant was motivated in his actions by the desire to get his money back.  It does not follow, however, that it was not open for the jury to conclude beyond reasonable doubt that the appellant had an intention to permanently deprive the owner of its right in the bobcat.  “Intention” is not to be confused with “motive” or “desire”.[3]

[13] In R v Reid,[4] Keane JA quoted with apparent approval the following passage from the reasons of Connolly J (Moynihan J agreeing) in R v Willmot (No 2):[5]

“The ordinary and natural meaning of the word ‘intends’ is to mean, to have in mind.  Relevant definitions in The Shorter Oxford English Dictionary show that what is involved is the directing of the mind, having a purpose or design.  The notion of desire is not involved as the learned judge rightly held.  A person may do something, fully intending to do it, although he does not in the least desire to do it.

Now there is, in my judgment, no ambiguity about the expression as used in s. 302(1) and it is not only unnecessary but undesirable, in charging a jury, to set about explaining an ordinary and well understood word in the English language.  It is a truism that it is the Code itself which speaks and that it is, with respect, wrong in principle to gloss it.

…

In charging the jury elaboration or paraphrase of what is meant by intend should be avoided.  The jury should of course be told in appropriate cases that intention is not the same as motive or desire.  They should also be told that they are to decide whether the intention is established on the whole of the evidence.” (citations omitted)

[14] Chesterman J agreed with Keane JA’s reasons.  His Honour relevantly said:[6]

“‘Intent’ and ‘intention’ must have the same meaning wherever they appear in the Code.  If an actual, subjective, intention to bring about a particular result, such as death or the infliction of severe pain and suffering, must be proved before a jury may convict of murder or torture, the same must be true of intent in s. 317.  What is necessary to prove intent is proof that an accused (here the appellant) mean to transmit his HIV to the complainant.”

[15] Chesterman J later observed:[7]

“As a matter of evidence, proof that an accused knew, or foresaw, that the probable consequence of his deliberate act was, for example, death, will usually establish that the accused intended to cause the death.”

[16] The existence of a requisite intention on the part of an accused person, absent an admission, is necessarily established, if at all, by inferences to be drawn from the relevant facts and circumstances.  Here the jury was entitled to infer an intention on the part of the appellant to deny the owner’s right to permanent possession of the bobcat.  It was also open to the jury to find, without having recourse to s 391(2), that such an intention was fraudulent.[8]

[17] After the appellant’s conversation with Mr Bednall he was aware that the bobcat had been stolen.  He then contacted the person through whom he had acquired the bobcat and demanded that he take back the bobcat and give him back his money.  That transaction occurred the next day.  The appellant thus dealt with the bobcat in a manner inconsistent with the owner’s rights and asserted a right inconsistent with the owner’s rights.

[18] It would have been apparent to the appellant that the person with whom he was dealing would have had no interest in returning the bobcat to its rightful owner.  The fact that the appellant made it plain that he was not informing the authorities because that might interfere with his ability to get his money back demonstrated his awareness that his returning the bobcat to the person who supplied it to him was inconsistent with the owner’s rights.  The appellant’s denial of knowledge of the bobcat in his police interview also assists the conclusion that the appellant’s acts evidenced an intention to deprive the owner of its rights.

[19] The ground of appeal has not been made out and I would order that the appeal be dismissed.

[20] FRASER JA:  I agree with the reasons for judgment of Muir JA and the order proposed by his Honour.

[21] MORRISON JA:  I have read the reasons of Muir JA and agree with those reasons and the order his Honour proposes.