The Queen v Collins
[2006] QDC 426
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The Queen v Collins[2006] QDC 426
The Queen v Collins[2006] QDC 426
DISTRICT COURT | Indictment No 378 of 2006 |
CRIMINAL JURISDICTION
JUDGE WHITE
DIS-00004101/06(5)
THE QUEEN
v.
DANIEL JOHN COLLINS
CAIRNS
..DATE 29/08/2006
JUDGMENT
HIS HONOUR: The defendant is charged on indictment with the following offences:
- (1)That on the 7th day of June 2005 at Smithfield in the State of Queensland he robbed Noel Eric Assmann and he was armed with an offensive weapon, namely a knife;
- (2)That on the 7th day of June 2005 at Craiglea in the State of Queensland he unlawfully used a motor vehicle without the consent of Noel Eric Assmann, the person in lawful possession of it; and
- (3)That on the 7th day of June 2005 at Craiglea in the State of Queensland he dangerously operated a vehicle in and around Craiglea, and at the time of committing the offence he was adversely affected by an intoxicating substance.
The facts giving rise to the charges are not in dispute. They are as follows. At about 9 p.m. on the 7th of June 2005 the defendant entered the complainant's taxi and asked to be taken from the city to the Smithfield Shopping Centre. During the journey, the applicant, inter alia, told the complainant that he had left his car in the shopping centre car park and asked the complainant how far it was from the shopping centre to the police station.
When the taxi stopped in the car park, the applicant alighted, opened the driver's door and produced a knife. He held the knife at shoulder height, about a metre from the complainant. The defendant said, “Sorry to do this to you, but get out.” The complainant complied. The complainant asked why he was doing this, to which the applicant replied, “I want the car. I've got to get to Carbine.”
The defendant further stated that the complainant could get the car from there tomorrow. The defendant was living at Mount Carbine at that time. The defendant offered to drive the complainant to the Smithfield Police Station. The complainant accepted the offer and gave him directions. The defendant let the complainant out of the taxi in front of the police station and drove north at high speed along the Cook Highway. He was apprehended at a location north of the Mowbray River bridge.
Mount Carbine is a mining town, approximately 120 kilometres by road north-west of Cairns. Mowbray River bridge is located approximately 40 kilometres by road north of Cairns.
Section 409 of the Criminal Code defines “robbery” as follows.
“Any person who steals anything and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen is said to be guilty of robbery.”
The prosecution alleges that the thing stolen in the course of the alleged robbery was the taxi itself. Mr Murray, on behalf of the defendant, submits that, as a matter of law, the defendant could not be found guilty of robbery because he did not steal it. Rather, he unlawfully used it, which offence is covered by count 2.
“Stealing” is defined in section 391 of the Criminal Code as follows:
“(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;
- (b)an intent to permanently deprive any person who has any special property in the thing of such property;
- (c)an intent to use the thing as a pledge or security;
- (d)an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
- (e)an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;
- (f)in the case of money - an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner.”
Finally, in sub-section 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.”
It is clear that the complainant, the taxi driver, fits the definition of “owner”.
Although I engaged counsel in discussion about whether what the defendant did was a taking or a conversion to his own use, in the end I do not think it matters. I am content to determine the issue on the basis that what the defendant did was to take the taxi. This is not disputed. In my view, the taking of the taxi of itself constituted an actionable wrong, namely trespass to goods. In order to establish the criminal offence of stealing it is necessary to establish that the taking was done fraudulently.
The starting point, therefore, is whether the defendant took the taxi with any of the intents specified in subsection 391(2). In my view, the relevant intent must exist at the time of the taking. Mr Pedder, on behalf of the Director of Prosecutions, submits that the evidence discloses the intent specified in paragraph (e), namely an intent to deal with it in such a manner that it cannot be returned in the condition it was in at the time of the taking.
The evidence is that he intended to drive the car approximately 120 kilometres to Mount Carbine. In my view, in order for paragraph (e) to apply, it would be necessary to prove that by driving it to Mount Carbine, the natural and probable consequence would be that the condition of the vehicle would alter in such a way or to such an extent that it would be impossible to return it to the condition it was in when taken.
Whilst it is probably right to say that every kilometre a car travels contributes to a deterioration in its condition, in my view it would be impossible on the evidence to say that the wear and tear involved in the car travelling 120 kilometres would so alter its condition that it could not be returned to the condition it was in when taken. Although the case is not binding on me, I am attracted by the reasoning applied by McNaughton J in R v Bailey (1924) Queensland Weekly Notes, 38.
Mr Pedder submits that the list of specific intents contained in subsection 2 is not intended to be exhaustive. He submits that it would still be open to a jury to find that the defendant fraudulently took the taxi because he did so dishonestly. In order to convict the defendant a jury would have to be satisfied beyond reasonable doubt:
- (1)that the defendant's taking of the vehicle was contrary to the standards of honesty of ordinary, reasonable members of the community; and
- (2)that the defendant knew that his taking of the vehicle was contrary to the standards of honesty of ordinary, honest members of the community.
I have no doubt that a jury would be able to do so. In fact, in my view, such a finding would be almost inevitable.
The question then turns on whether the list of intents contained in subsection 391(2) is intended to be exhaustive. Mr Murray submits that it is.
Mr Pedder's argument would be on unassailable ground if subsection 2 contained the following words, “without limiting subsection 1”. See, for example, section 348 of the Criminal Code dealing with the definition of “consent” in the case of rape and sexual assault.
Mr Murray's argument would be on unassailable ground if the word “defined or means” had been used.
In R v Cushion, Ex Parte Director of Public Prosecutions Commonwealth, (1999), 1 Queensland Reports, 92, the Court of Appeal considered the use of the word “fraudulently” in section 72 of the Commonwealth Crimes Act.
In that case, McPherson J A came to the view that in that 1 particular section the word “fraudulently” meant dishonestly. However, it is also of note that during the course of his judgment, McPherson J A acknowledged that the word “fraudulently” may have different shades of meaning in different contexts.
It is of note that the Commonwealth Crimes Act contained no definition or deeming provision in relation to the word “fraudulently”. However, in my view, it is of considerable significance that McPherson J A in R v Angus, 2000 QCA 29, at paragraph 8 said:
“What prevents the conviction from being affirmed in this case, however, is the requirement of section 391(1) that the conversion be fraudulent, which is an expression that is defined in subparagraph (a) to subparagraph (f) of section 391(2) of the Code”.
In Ilich v R, 69 ALR 231, the High Court was dealing with the identical section 371 of the Western Australian Criminal Code. Gibbs CJ, at page 235, said:
“A taking or conversion is deemed to be fraudulent when done with one of the intentions described in paragraphs (a) to (f) of section 371(2)”.
And later:
“If the applicant's version of events is accepted, he did not take the money with any of the intents mentioned in section 371(2). He can be guilty of stealing only if he converted the money with one of those intents”.
I respectfully agree with McPherson JA and Gibbs CJ, and in my view, on the facts of this case, this defendant cannot be found guilty of count 1. Reasonable people might take the view that if what this defendant did is not armed robbery, it should be. They could be right. However, that is a political view. The task of the Court is not to apply the law as it should be but to apply the law as it is. In any event, no injustice will be done. My ruling will not result in the defendant's use of threats with a knife to take the taxi being ignored for the purposes of arriving at an appropriate sentence for count 2, of unlawful use of a motor vehicle.
The element of that offence is that the vehicle was used without the consent of the person in lawful possession thereof. The manner in which this defendant took the taxi from the person in lawful possession thereof is a matter of considerable relevance to the issue of punishment, along with any other relevant matters which might emerge.
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