Peila v Queensland Police Service
[2007] QDC 22
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- Unreported Judgment
- Peila v Queensland Police Service[2007] QDC 22
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Peila v Queensland Police Service[2007] QDC 22
Peila v Queensland Police Service[2007] QDC 22
DISTRICT COURT OF QUEENSLAND
CITATION: | Peila v Queensland Police Service [2007] QDC 022 |
PARTIES: | MAURO CESARE PEILA (Appellant) V QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | D28/06 |
DIVISION: | Appeal |
PROCEEDING: | Section 222 Appeal |
ORIGINATING COURT: | District Court, Beenleigh |
DELIVERED ON: | 2 March 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 November 2006 |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – appeal – where appellant found in possession of personal cards and/or bank credit cards – whether appellant had relevant intention to convert property fraudulently – where magistrate applied the wrong test to agreed facts – definition of stealing – meaning of conversion. Justices Act 1886 (Qld) ss 222, 223 and 225. Criminal Code 1899 (Qld) ss 391 and 398. House v The King 55 CLR 499. Murphy v Porter, ex parte Murphy (1985) 1 Qd R 59. Ilich v R (1987) 162 CLR 110. R v Angus [2000] QCA 29. Police v Diamondopoulos (1998) SASC 6978. |
COUNSEL: | Mr R. Carr for the appellant. Mr P. McCarthy for the respondent. |
SOLICITORS: | JB Stevenson & Company Solicitors for the appellant. Office of the Director of Public Prosecutions for the respondent. |
Introduction:
- [1]This is an appeal pursuant to s 222 of the Justices Act 1886 against the decision of the learned magistrate at Beaudesert on 20 February 2006 whereby Mauro Cesare Peila (“the appellant”) was convicted of 11 counts of stealing to which he pleaded not guilty, which are the subject of this appeal, together with three other offences to which he pleaded guilty and which are not the subject of appeal.
- [2]The learned magistrate imposed one penalty for all 14 offences, but irrespective of the outcome of this appeal the appellant does not seek an order to be resentenced in respect of those offences to which he has entered guilty pleas.[1]
Background:
- [3]The appellant appeared before the magistrates court in answer to 14 offences, including 11 counts of stealing pursuant to s 398 of the Criminal Code Queensland.
- [4]The subject matter of the stealing charges was that the appellant, who is a taxi driver, had in his possession 11 personal cards and/or bank credit cards in the names of the respective card holders and which the appellant had found in his taxi in the course of his employment. The personal cards and/or bank credit cards were discovered in the appellant’s possession by the Queensland Police Service during the execution of a search warrant on the appellant’s premises with respect to an unrelated matter. The evidence was that the personal cards and/or bank credit cards were located “…… in the defendant’s top bedroom cupboard draw.”[2]
- [5]The only evidence presented to the court in respect of the stealing charges was on the basis of an agreed set of facts. The agreed facts were as follows:
“a. The defendant was in possession of the items alleged.
- The defendant came into possession of those items on various but unknown dates having found them in the taxi cab he drove in the course of his employment.
- The defendant made no use of, nor did attempt to use, the items for any purpose whatsoever nor did he have any intention to do so.
- The cards were not damaged or impaired by the defendant and are in good order and condition.
- The defendant had taken no steps to return the items to the apparent holders or owners.
- The defendant had not formed any intention not to redeliver the items to any of Black & White Cabs, the card holders, the issuing institutions or appropriate other perons and had said that he would do so:
- If he was contacted by anyone seeking the return of the items; or
- When he got around to it.”[3]
- [6]The learned magistrate found the appellant guilty of the 11 counts of stealing on the basis that “…… the defendant in these cases had possession of the property; that he was able to take steps to find the owners. So I say that even if he innocently takes goods and subsequently becomes aware that the goods were not abandoned but were owned by someone and he retains the goods, he is then found guilty of theft by conversion and by finding.”[4]
- [7]The appellant appealed the learned magistrate’s decision essentially on the basis that the learned magistrate “…… applied the wrong test. In order to have a conversion by finding, the finder has to deal with the goods in a manner inconsistent with the rights of the true owner.”[5]
The law on appeal:
- [8]This court's power in respect of an appeal under s 222 of the Justices Act is that the appeal is by way of rehearing on the evidence given in the proceedings before the Justices (see s 223 of the Act) and that the court has a wide discretion in the order it makes (see s 225).
- [9]The general principles upon which an appellate court in these circumstances must operate are well established and are summarised in House v The King in the following terms:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for so doing.”[6]
- [10]This principle is further encapsulated in the statement of Andrews SPJ (as he then was) in Murphy v Porte, ex parte Murphy (1985) 1 Qd R 59 at 67 where he said after a comprehensive review of a number of authorities[7]:
“I am of the view that where findings are so expressed as to demonstrate mistake in the understanding of evidence or where findings as expressed have demonstrated a misunderstanding of the law applicable then this court may interfere with the decision.”
Applicant’s submissions:
- [11]The applicant submits that on the only evidence presented to the court, the learned magistrate could not have found the appellant guilty of the 11 counts of stealing, as he failed to apply the law properly to the agreed set of facts.
“Stealing – conversion”
- [12]The Criminal Code relevantly provides in s 391:
“Definition of Stealing
s 391(1) A person who … fraudulently converts to the person’s own use … anything capable of being stolen, is said to steal that thing.
- (2)A person who … 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.
……………………………………….
- (5)When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes, on reasonable grounds, that the owner cannot be discovered.”
- [13]The term “conversion” is not defined in the Code, but the matter of Ilich v R (1987) 162 CLR 110 discusses its meaning and Gibbs CJ at p 115 refers to the definition of “conversion” given by Atkin J in Lancashire and Yorkshire Railway Co v MacNicoll.[8] This statement was referred to with approval by Lord Porter in Caxton Publishing Co v Sutherland Publishing Co (1939) Appeal Cases 178 pp 201-2. In Lancashire and Yorkshire Railway v. MacNicoll (1919) 88 LJ KB 601 at 605, Atkin J said:-
“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 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. That intention is conclusively proved if the defendant has taken the goods as his own or used the goods as his own.”
- [14]Further to this, in R v Angus [2000] QCA 29 (“Angus”) Pincus JA (with whom McMurdo P and McPherson JA agreed), observed at [15] that merely keeping possession of hired or borrowed goods beyond the agreed day for return cannot fit within that definition. His Honour added at [16]: “..… 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. Leaving a borrowed book on a shelf is not an act of conversion, no matter how long the book stays there.” While Angus is not strictly apposite to the circumstances of the instant case[9] it is relevant for its dicta on the question of ‘fraudulent conversion’. Further in the matter of Police v Diamondopoulos (1998) SASC 6978 the respondent, who was coincidentally a taxi driver, took home a mobile phone found in his motor vehicle and Wicks J held: -
- “The phone remained at all times in the possession of the true owner and the respondent did not have nor acquire possession of it.
- The mere placing of the mobile telephone on the cupboard in the bedroom in circumstances where the defendant already had custody of the instrument would not amount to a taking. The act must not amount to a trespass.”
Respondent’s submissions:
- [15]The respondent submits that “the fundamental trial issue was one of ascertaining the relevant intention of the appellant at the time of the alleged conversion of the property.”[10] The respondent further conceded that on the basis of the agreed set of facts, no adverse inference can be drawn against the appellant on the crucial issue of his intention to convert fraudulently the goods in his possession to his own use, that is to form “an intent to permanently deprive the owner of the thing”, but rather “the intention at the relevant time is made quite clear by the agreed facts that he at no time intended not to redeliver ……” (the items to the respective owners).[11]
- [16]Ultimately, the respondent conceded that the learned magistrate erred in making the findings he did because of the “…… the additional agreed fact that ‘the defendant hadn’t formed any intention not to deliver the items to any of the owners or Black and White Cabs or any other person if he was contacted by anyone asking him to return them or when he got round to it.’”[12]
Findings:
- [17]In all the circumstances, I am satisfied that the learned magistrate erred in his interpretation of the law on the basis of the agreed set of facts between the prosecution and the appellant at the hearing of the charges, and was not entitled to find the appellant guilty of each of those charges, as on the authorities the Prosecution had not established beyond a reasonable doubt that the appellant had “fraudulently converted” the items to his own use.
- [18]It follows therefore that the appeal should be upheld and the convictions in relation to the 11 counts of stealing be quashed and a verdict of not guilty entered in respect of each of those counts.
- [19]My orders are therefore as follows:
- (a)The appeal be upheld;
- (b)The convictions in relation to the 11 counts of stealing imposed by the learned magistrate on 20 February 2006 be quashed and a verdict of not guilty be entered in respect of each of those counts; and
- (c)No order as to costs.
Footnotes
[1] Appeal transcript page 9 lines 50-52.
[2] Magistrates Court transcript page 2 line 50.
[3] Magistrate’s Court page 3 lines 3-25; Appellant’s grounds of appeal filed 17 March 2006.
[4] Ibid page 8 lines 16-21.
[5] Appellant’s outline of argument paragraph 10(b) c.
[6]House v The King (1936) 55 CLR 499 at 505 per Dickson, Evett and McTiernan JJ.
[7] Including Smith v Smith, ex parte Smith [1950] Qd R 113 at 120; R v Robertson (1980) 2 A Crim R 369; and R v Free [1983] 2 Qd R 183. See also the comments by Thomas J at pp 79 and 81 of the judgment, and in particular the dicta of Gibbs J (as he then was) in Uranerz (Aust) Pty Ltd v Hale (1980) 54 ALJR 378, 381.
[8] (1919) 88 LJ (KB) 601 at p 605.
[9] Here the items were not “hired or borrowed”.
[10] Para 8.1.1 of Respondent’s Outline of Argument.
[11] Appeal transcript page 7 lines 30-40.
[12] Magistrates Court transcript p 3 lines 16-19; para 8.1.6 of respondent’s Outline of Argument.