R v Stevens

Court of Appeal (Muir, Fraser and Morrison JJA)

18 November 2014

(This summary was prepared by Mr Martin Burns QC)

After a trial in the District Court, the appellant was convicted of stealing a bobcat. The bobcat had been stolen from its owner by another person in January 2008 and, some months later, the appellant purchased it from an intermediary. Later in 2008, the appellant applied for finance and, consequent upon that application, a valuer was asked to examine the bobcat for security purposes. The valuer discovered that it was stolen and notified the appellant accordingly, adding that he had also telephoned the owner to make sure that “it hadn’t been recovered or anything”. The valuer informed the appellant that he had not “told them where it is or anything”. The appellant then contacted the person from whom he had acquired the bobcat and demanded his purchase money back in exchange for the return of the machine. At the same time, the appellant made clear that he had no intention of informing the police provided he got his money back. The exchange took place on the following day and, when subsequently questioned by police, the appellant denied any knowledge of the bobcat.

On appeal it was argued that it was not open to the jury to conclude that the appellant had fraudulently converted the bobcat within the meaning of s 391 of the Criminal Code. To do so, the appellant would have needed to form an intention to “permanently deprive the owner of the thing of it” [s 391(2)(a)] but, it was argued, the appellant had not formed any intention beyond recovering the money he had paid for the bobcat and distancing himself from it. It was further argued that the evidence was insufficient to establish that the appellant had actually turned his mind to the impact his return of the bobcat would have on the true owner who was, in all events, unknown to him. As such, it was contended, a jury properly instructed could not be satisfied beyond reasonable doubt that the appellant had positively formed an intention to permanently deprive the unknown owner of the bobcat.

Muir JA (with whom Fraser and Morrison JJA agreed) accepted that the appellant was motivated in his actions by a desire to get his money back but his Honour, applying R v Reid [2007] 1 Qd R 64, cautioned that “intention” is not to be confused with “motive” or desire”: [12]. Specifically, His Honour held that 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 and that it was open to the jury to find, without having recourse to s 391(2), that such an intention was fraudulent. This was because, by returning the bobcat to the intermediary in return for his money, the appellant had dealt with the bobcat in a manner inconsistent with the owner’s rights: [17]. His Honour said (at [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.”

The appeal was accordingly dismissed.