BROMBERG v O'BRIEN

Full Court of the Supreme Court of the Northern Territory Asche CJ, Kearney and Angel JJ
14 and 28 September 1990 at Darwin

CRIMINAL LAW - PRACTICE & PROCEDURE - framing of indictment to charge of stealing - whether specification of ownership necessary - Criminal Code ss.306,312

Cases applied:
Hibbert v McKiernan (1948) 2 KB 142

Cases followed:
Johal v Ram (1972) 56 CAR 348
Lodge v Lawton [1978] VR 112
R v King (1978) 19 SASR 118

Cases approved:
R v Gill (1963) 2 All ER 688
R v Hempenstall [1937] QSR 343
R v McCoy [1938] QSR 249
Trainer v R (1906) 4 CLR 126

Cases distinguished:
R v Gregory (1972) 2 All ER 861
R v O'Brien [1981] WAR 305

Cases referred to:
O'Connell's case (1844) 5 St.Tr (n.s.) 1
Vaux v Brook (1586) 4 Co.Rep.396: 76 ER 982

Counsel for Appellant: Solicitors for Appellant: Counsel for Respondent: Solicitor for Respondent:

J. Barbaro
Elston & Gilchrist
T.I. Pauling QC with
W.J. Karczewski Solicitor for the NT

jasc90012

IN THE FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN

No. 61 of 1990	IN THE MATTER of an Appeal under the Justices Act

BETWEEN:  REGINA BROMBERG

AND:

Appellant

PATRICK JOHN O'BRIEN
Respondent

CORAM:	Asche CJ, Kearney and Angel JJ

REASONS FOR JUDGMENT
(Delivered the 28th day of September 1990)

ASCHE CJ:	This appeal raises a short but important issue dealing with the framing of indictments.

The appellant was charged on information for an indictable offence that she,

"On 1st day of April 1989 at Darwin in the Northern Territory of Australia did steal a quantity of foodstuffs having a value of $28.43 the property of Woolworths (SA) Limited trading as Woolworths, Hibiscus".

The appellant appeared before a Stipendiary Magistrate on 31 January 1990 and pleaded not guilty.	After

hearing the evidence the learned Magistrate found the charge proved, though not wholly as alleged by the prosecution, i.e., he found the charge proved as to stealing of certain foodstuffs to the value of $6.06.	The appellant was convicted and placed upon a bond to be of good behaviour for
12 months.

The appellant filed Notice of Appeal on 7 February 1990 and filed amended grounds on 2 April 1990.

When the appeal came before Angel J. in May 1990, His Honour decided to refer the appeal to the Full Court pursuant to s.21 of the Supreme Court Act; on the basis that one ground of appeal raised a question of sufficient importance to be dealt with by the Full Court.	Although his Honour formally referred the whole appeal to this Court, it was obvious that this Court should deal only with the ground which prompted his Honour to refer the matter.	If the finding is for the appellant on that ground there would be no need for further proceedings, for the appellant would be entitled forthwith to have the conviction quashed.	If the finding is against the appellant on that ground the matter should be referred back to deal with the other grounds which are not, in the view of this Full Court (which includes the referring Judge) matters of such moment as to require the attention of the Full Court.	I understand both the appellant and the respondent agree to this course which, in

formal terms, would require us to accept the reference in part and, if the appellant fails on the ground before us, to make orders and directions as to the balance of the proceedings.	(See s.21(2)(c) of the Supreme Court Act).

The question which this Court deals with relates to the allegation of ownership of property alleged to have been stolen.	In the information it is recited that the foodstuffs allegedly stolen were "the property of Woolworths (SA) Limited trading as Woolworths, Hibiscus".	It is not disputed by the respondent that there was no evidence before the learned Stipendiary Magistrate that the foodstuffs were the property of that legal entity.	At the most there was only the evidence of the security officer who apprehended the appellant.	That officer was asked,

"To your knowledge who owns those items?".

She replied,

"Those items are the property of Woolworths Limited".

No certificate of incorporation was tendered and nothing appears to show that this witness was properly authorised to make the statement she did; and, in any event, her answer identified a different entity to that described
in the information.

There is no doubt that at common law this omission in the evidence would have been fatal to the prosecution, unless cured by amendment properly sought and allowed.
Griffiths C.J. in Trainer v The King (1906) 4 CLR 126 at 135 makes that abundantly clear.

"The law of England, and it is the same here, requires the ownership of the property to be laid in the indictment and proved.	There is ample power of amendment, but in the absence of amendment it must be proved as laid."

(His Honour then deals with the special case where it is permissible to charge a person with stealing goods the property of a person unknown, but makes it clear	(citing II East P.C. at 651), that such a procedure is not permissible if the owner be really known.	(See p.194).).

Barton J. in Trainer (supra), concurred with Griffiths C.J.	O'Connor J. agreed that ownership must be proved either in a named person or in a person unknown. (p.140).

See also R v Hempenstall [1937] QSR 343: R v McCoy [1938] QSR 249.

In the present case, the learned Stipendiary Magistrate, at the conclusion of the evidence, raised the question of proof of ownership and suggested that it may be

too late to amend.	(Appeal Book pp.57-59).	The submission made on behalf of the prosecution was that it was not necessary to allege ownership and therefore no amendment was needed.	His Worship was referred to s.306 of the
Criminal Code	(Appeal Book p.59, 66).	His Worship accepted that submission.	(p.66).

S.306(1) reads:-

"A description of property in an indictment may be in ordinary language and shall be such as to indicate with reasonable clarity the property referred to and, if the property is so described, it shall not be necessary, except when required for the purpose of describing an offence depending on any special ownership of property or special value of property, to name the person to whom the property belongs or the value of the property."

With some very minor changes of expression, which do not seem to have any significance here, this is in the same terms as Rule 6(1) of the First Schedule to the United Kingdom Indictments Act 1915.	Those Rules have now been superseded in the United Kingdom by the Indictment Rules 1971 (see - Archbold - 42nd Ed. - at [1-45]); but, while Rule 6(1) was in its original form, the case of
Hibbert v McKiernan (1948) 2 KB 142 came before the Divisional Court of the Kings Bench.	In that case the appellant was convicted of stealing golf balls from a golf course where they had been lost and then abandoned by their no doubt exasperated owners.	In the charge, the property in

the golf balls was laid in the secretary and members of the golf club; and much learned argument was directed to the court below and to the Divisional Court as to whether those persons could be said to be the "owners" of the golf balls. Unfortunately for the Professors of Law and writers of learned textbooks, the Divisional Court was in no mood to discuss that question.	Lord Goddard C.J., in a typically robust judgment, while paying tribute to the "gallant and laborious efforts of the justices", was firmly of opinion that:

"We need not be troubled with nice questions relating to animus domini, corpus possessionis, de facto control or the like.	Every householder or occupier of land means or intends to exclude thieves and wrongdoers from the property occupied by him and this confers on him a special property in goods found on his land sufficient to support an indictment if the goods are taken therefrom, not under a claim of right, but with a felonious intent." (p.149-150).

As to the allegation of ownership, his Lordship was equally pragmatic.

"In the present case any difficulty might have been avoided by describing the balls, or at any rate seven of them, as the property of persons unknown, and at the present day allegations concerning the ownership of stolen property are, except in a few exceptional cases, treated as immaterial."

Humphreys J. agreed.	He said:

"In such a case as the present it is not necessary to allege or prove who is in law the owner of the goods, indeed it is not essential to name any person as the owner of the goods in an indictment for larceny though it is the practice to do so: see
r.6 sub-r. 1 of the rules contained in the schedule to the Indictments Act 1915."	(p.152).

Pritchard J. agreed.

The Victorian Presentments Act 1916 also adopted, in substantially similar terms, the rules to the English Indictment Act 1915.	Rule 6(1) of the Victorian rules (now to be found in the Sixth Schedule to the Victorian
Crimes Act) is in precisely similar terms to those of s.306 of the Northern Territory Criminal Code.

In Lodge v Lawton [1978] VR 112 the defendant was charged with stealing cheques from "Bob Jane Imports Pty Ltd".	The evidence disclosed that there were several companies comprising the Bob Jane group of companies, but not that "Bob Jane Imports Pty Ltd" was one of the group, and the registration of that company was not proved.	It appeared that the defendant was employed by and took the cheques from one of the companies in the group, but which one, was not specifically proved.	The Magistrate dismissed the charge for that reason.	The informant obtained an order nisi which was referred to the Full Court.

The Full Court in a unanimous judgment held that it was not necessary to allege or to prove that the property dishonestly appropriated belonged to a specific person.
Their Honours commented at 114:

"In earlier times, because of the harshness of the law, technicalities in criminal proceedings abounded .and the prosecution was required to plead in great detail and particularity, at the risk of defeat if an allegation in an indictment was not fully and precisely proved.	In those times where the offence charged was larceny proof was required of ownership in the person whose property was alleged to have been stolen.		See R v Isaacs (1884)
5 LR (NSW) 369, to which the Magistrate referred, and Trainer v R (1906) 4 CLR 128, at pp. 132-4. However, with the passing in England of the Indictments Act 1915 and in Victoria of the Presentments Act 1916 some of the strict rules of criminal procedure were relaxed."

Later at 115-6 their Honours say:

"The information in question in this case, excluding as surplusage the reference to Bob Jane Imports Pty Ltd., certainly satisfies the requirements of s.167 by describing the offence in the words of s.72(1) of the Crimes Act, or in similar words.	Indeed an information merely alleging that a defendant did steal would meet those requirements.	The identification of the property alleged to have been stolen is necessary not to comply with the requirements of the section but for the purpose of making known to the defendant reasonable particulars of the offence with which he is charged."

At 116 their Honours conclude:

"In the present case the omission to prove the ownership of the money and cheques was not a fatal

defect.	The reference in the information of 'Bob Jane Imports Pty Ltd' was surplusage and should have been ignored.	This was not a case which depended upon 'any special ownership of property or special value of property' (see r.6(1) of the Presentment Rules), and the information indicated with reasonable clearness the property referred to, thus making it unnecessary to name the person to whom the property belonged."

See also: The Queen v King (1978) 19 SASR 118 at 127 (per King J.).

In my view the case now before this Court is very similar to Lodge v Lawton (supra) and the same principles should be applied.	I cannot see how the appellant can be said to have suffered any disadvantage or unfairness by reason of any misdescription of the owner of the foodstuffs in this case; nor that she could have been under any misapprehension of the nature or circumstances of the offence for which she was charged.	In this case the reference to the owner was mere surplusage in the light of the provisions of s.306 of the Code.

Because of the precise similarity between r.6(1) of the Victorian Presentment Rules and s.306 of the Northern Territory Criminal Code I would consider that the reasoning in Lodge v Lawton (supra) more closely equates to the position in the Northern Territory and should be followed by this Court rather than the majority decision of the Full Court of Western Australia in R v O'Brien [1981] WAR 305.
Certainly the latter decision is authority for the proposition that in a stealing charge, the ownership of property must be laid in the indictment and proved.	But

this would seem to be mainly because the Western Australian Criminal Code does not have a provision similar to s.306 of the Northern Territory Criminal Code or r.6(1) of the Victorian Presentments Act.	Their Honours Burt C.J. and Jones J. consequently equated the position with the common law and both relied on Trainer (supra) and on the remarks of

Griffiths CJ at 135 which I have already set out.
C.J. at 308: Jones J. at 314).	Nevertheless it is

(See Burt

interesting to note that Wallace J., in his dissenting judgment, was of the view that:-

"While it is true that in England and Victoria the strict requirements relating to the framing of indictments and presentments have been relaxed by amendments to the rules relating thereto the wording of s.582 of our Criminal Code does not, in my opinion, compel the allegation of ownership in all circumstances and, it follows, the proof thereof."

The charge itself is not an indictment and could not become one until after committal proceedings (s.298 Criminal Code) or upon an ex officio indictment (s.300). But s.314 recites that:

"The provisions of this Division relating to indictments apply to complaints preferred against offenders upon their trial before justices of the peace in order to their summary conviction of a crime.11

The originating document here is headed "Information for an Indictable Offence".	It is a "minor

offence" within the meaning of s.120 of the Justices Act and the learned Magistrate treated it as such.	It therefore became a "complaint", which is defined in the Justices Act as "including a charge of minor indictable offence, if and when, a Court of Summary Jurisdiction proceeds to dispose of the charge summarily".

In my view, although there is some doubt as to the full meaning of s.314 of the Code, it sufficiently includes proceedings of this nature.

Furthermore I would adopt the view of the Victorian Full Court in Lodge v Lawton (supra) at 115 that,

"...it would indeed be strange if the requirements for the framing of an information for an offence in the Magistrates Court were more stringent than the requirements for framing a charge on presentment in the Supreme Court.	In our opinion the Presentment Rules may be taken as an indication by Parliament of what is reasonably necessary in charging an offence, except where a statute otherwise provides, and this appears to us to form the basis of the English decisions to which we have referred."

Nevertheless one would not wish to discourage the practice of naming the perceived owner from whom it is alleged goods are stolen or from whom it is alleged money or securities have been fraudulently obtained.	Editions of Archbold, after the passing of the United Kingdom Indictments Act, and before the 1971 amendments, contain the admonition that "it will probably be found convenient in

practice to name the owner where he is known".	(See, e.g., 31st Edition, Sweet &    Maxwell, 1943 at 41).	I would support
the good sense of this observation because, even if the name of the owner is not essential to the framing of most indictments, it is still a useful guide to delineate the particular offence alleged and give the accused as complete a description as practicable to understand the ambit of the charge.	I would, with respect, adopt the comments of Edmund Davies J., delivering the judgment of the court of Criminal Appeal in R v Gill (1963) 2 All ER 688 at 690.	His Honour, after rejecting the submission that the misdescription of the owner in that case rendered the convictions invalid, said:

"	However this Court must certainly not be taken as discouraging the present useful and most desirable (and sometimes essential) practice of including in the indictment the owner's name, where known.".

Mr Barbaro, for the appellant has urged us that, notwithstanding s.306, all the elements of a particular offence must be alleged in the indictment; and, since one of the elements of stealing is the taking of another's property (save in the case where a person can be convicted of stealing his own property), it is essential that the precise ownership be alleged.	The short answer to this is that s.306(1) and, for that matter, s.305(3) clearly indicate the contrary.	Subject to those provisions, however, reasonable

information must be given to the accused to identify the offence with which he is charged; s.305(1).	Herein lies the distinction.	The emphasis is no longer on minute exactitude but on reasonable clarity.

It is not the niceties of the charge but the fairness of the presentation that matters.	One looks to the substance not the shadow.	The accused must be given such information as will reveal to an ordinary citizen rather than to a medieval philosopher what the charge is.	Wide powers of amendment are given (s.312).	The accused is protected from real but not imaginary injustice.

He may seek particulars (s.313); and amendment will not be permitted unless it can be shown that the amendment can be made without injustice (s.312).	Johal v Ram (1972) 56 CAR 348.

The necessity for the change in emphasis is plain.
The common law had become encrusted with technicalities.  One example will suffice.	In Vaux v Brook (1586) 4 Co. Rep. 39b: 76 ER 982 the indictment was held bad because the word "BURGALITER" was employed instead of "BURGLARITER".	Yet
no-one suggested the simple course of amending; obviously because it would not have been permitted.	Further examples are collected in Holdsworth H.E.L. Vol III p.617.

Such casuistry provoked an equally absurd reaction by the Crown; where the endeavour to cover every possible contingency or expression led to charges of inordinate length.	Kenny - Outlines of Criminal Law (19th Ed.),
at 593, informs us that the indictment in O'Connell's case (1844) 5 St. Tr. (n.s.) 1, was a-hundred yards long.

The change had to be brought about by statute.	And so, ultimately, it was.	S.306(1) of the Code is one example.

Mr Barbaro nevertheless relies upon the case of R v Gregory (1972) 2 All ER 861.	Insofar as that case suggests that it was necessary, in the circumstances there disclosed, for the charge to allege ownership, I would
respectfully disagree; but not otherwise with the reasoning of the Court or its conclusion.	It was a case where the prosecution dramatically changed its course.	The charge was originally one of receiving a starter motor the property of
W.	At the close of evidence, an amendment was allowed which charged the accused merely with receiving a starter motor, but did not allege ownership in anyone.

The case for the prosecution had been run on the clear lines that the starter motor was the property of Wand no-one else.	In the course of the trial it became evident that the starter motor could not possibly have belonged to

W.	The Recorder permitted the amendment at that late stage of the trial because he took the view that the allegation of the property in W was mere surplusage.	The Court of Appeal quashed the conviction, being of the view that the assertion as to ownership was not mere surplusage in this case, because it informed the defence of the nature of the case, and the only case, which the prosecution had set out to establish.	The defence had been clearly disadvantaged because, if they had known that the prosecution's case was that the starter motor was the property of an unknown person, their approach to the charge would have been entirely different.	Furthermore the Recorder should have summed up in a different way directing the jury as to the inferences to be drawn from the possession of goods of unknown ownership.

I would respectfully agree with the Court of Appeal in that case that the change in direction of the Crown case was at so late a stage and so significant a change that an amendment should not have been permitted (p.866).	I would, however, and with respect, doubt that it was necessary to allege ownership in the indictment.	The vice lay not in the indictment but in presenting one case and then another.	If the Crown had merely alleged the receiving it would, in my view, have sufficed so far as the charge was concerned.	I consider that is the way s.306 should be interpreted and was so interpreted in Hibbert v McKiernan (supra) and
Lodge v Lawton (supra).

Even in R v Gregory (supra), however, the Court of Appeal accepted that "in many cases it is unnecessary in the particulars of a charge similar to the one with which we are now concerned to specify the owner of the property concerned" (p.865).	But their Honours commented that, "where the property is of a common and indistinctive type, in order that the accused person may know exactly that with which he is charged, it may well be necessary to name the owner." (p.866).	Desirable, I would rather say, but not necessary, save in the special cases specially provided for in s.306.

Mr Barbaro placed a further submission before us if we were against him on his first submission.	He puts to us that, if it is not normally necessary, in framing an indictment on a charge of stealing or receiving, to name the owner of the goods appropriated, yet, if the owner is in fact named, then the prosecution must prove the positive allegation they have themselves raised.	The simple answer is that if the allegation is mere surplusage it does not "suffer a sea change into something rich and strange" by appearing in the indictment.	The accused, however, still has rights under s.312.	If an incorrect allegation entraps the defence, and amendment is not sought, or only sought after the damage has been done, then the prosecution's case may fail: not because the original charge was a nullity, but because what could, and normally should have been corrected

by amendment, cannot be so corrected if the stage is reached where it cannot be shown that the required amendment can be made without injustice.	(S.306).

In the present case, however, the failure to prove that the foodstuffs were the property of the person named in the information in no way entrapped the appellant.	The description implied no more than that the offence alleged had taken place in and from a "Woolworths" store.

The reference before this Court is not in the form of a case stated, but during the course of argument two questions were posed to the Court as encompassing the matters which the Court should decide.	In the strict sense they go beyond the parameters of the Court's task here, which is no more than to determine, in the particular circumstances of this case, whether the conviction should be quashed because the prosecution failed to prove the ownership it had alleged in the information.		However, since the answers to the questions are implicit in this judgment, and since both parties to the appeal agreed to the framing of the questions, I propose to answer them.	I have, however, restricted the questions to the charge of stealing. The answers may well apply to other cases of unlawful appropriation but that would be painting with too broad a brush and pre-empting matters which were not argued in depth before this court because it was not necessary to do so.

I would answer the questions as follows:-

Q.	(1.)

Answer:

Is the specification of ownership always a material element of the charge (of stealing) such that failure to prove ownership as averred is fatal to the charge?	(Emphasis added).

No.

Q.	(2.)

Answer:

If no to question (1), where ownership is specified in the charge (of stealing) and that ownership is not proved, is that fatal to the charge?

No; unless it appears:-

that it was required to specify ownership for the purpose of describing an offence depending on any special ownership of property s.306(1), and that the defect cannot properly be cured by amendment (s.312), or

that the failure to prove the ownership as specified has entrapped the defence or placed it at such disadvantage that the charge cannot properly be cured by amendment. (s.312).

For the purposes of the present case I would propose the following orders and directions pursuant to s.21(2) of the Supreme Court Act:-

This Court accepts that part of the reference of His Honour Angel J. made on 11 May 1990 in this appeal which relates to ground 3 of the amended Notice of Appeal filed 2 April 1990, namely, "that the learned Magistrate erred in

law in finding that s.306 of the Criminal Code resolved the question of ownership of the property".

This Court finds that the learned Magistrate did not err in law in so finding, and dismisses the appeal insofar as it relates to that ground.

This Court declines to accept the said reference further, and orders and directs that the appeal on all other grounds be referred back to his Honour Angel J. for further hearing and determination.

That the question of costs, if any, of this referral be referred to his Honour Angel J. for his determination.

KEARNEY J:	I have had the benefit of reading the opinion
of the Chief Justice; I concur in the reasons and conclusions and agree with the answers, orders and directions which his Honour proposes.

ANGEL J:	I, too, agree with the reasons and conclusions of the learned Chief Justice.	I agree that s.306 of the Code ousts the common law rule and that Lodge v Lawton [1978] V.R. 112 is to be followed, and R v O'Brien [1981]
W.A.R. 305, if correct, is to be distinguished.