kea92132

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. SCC 181 of 1991

BETWEEN: THE QUEEN

AND:

CLEVE RONALD KUMNICK

CORAM:	KEARNEY J

REASONS FOR RULING

(Delivered 19 June 1992)

On 17 June 1992, at the close of the Crown case, Mr Tippett for the defence submitted that the accused had no case to answer on any of the twenty charges he was facing.
I heard argument that day and ruled on 18 June 1992, for reasons to be published at the conclusion of the trial, that the accused had a case to answer on each charge.	The trial ended earlier today; accordingly, I publish my reasons for the ruling of 18 June.

Mr Tippett dealt first with the ten charges of stealing.	He submitted that on the evidence the accused could not be said to have "appropriated" the fuel, and hence could not be convicted of stealing it, in terms of Code ss209(1) and 210(1).

He referred first to Lawrence v The Commissioner of Police for the Metropolis [1971] 2 All ER 1253.	In that case the House of Lords held that on a charge of theft the prosecution did not have to establish that the appropriation was without the owner's consent, because absence of consent is not an ingredient of that offence under s1(1) of the Theft Act 1968 (UK), a provision similar to ss209(1) read with 210(1) of the Code.	That is, it was held that the taking does not have to be without the owner's consent.	It was held that belief as to consent, or the absence of it, was relevant to the issue of dishonesty and not appropriation.	I observe that the concept of "dishonesty" is replaced in the Code with the concept of "unlawfully" in the definition of "steals" in s209(1).

Next, Mr Tippett referred to Heddich v Dike [1981]

3 A Crim R 139.	A ruling of no case to answer, in relation to an alleged theft of printing plates, was apparently based on the ground that theft under s72 of the Crimes Act (Vic) is not committed where the property is given to the accused

with the apparent consent of the person in lawful custody. Gobbo J held that this was erroneous, following Lawrence (supra).

Third, Mr Tippett referred to R v Morris [1983] 3 All ER 289, a case which involved two accused substituting labels with lower prices on goods in a self-service store. One of the accused paid the lower prices at the checkout; the other was arrested before he had paid the lower prices.
They were both convicted on the basis that the substitution of the price labels amounted to an appropriation of the goods.	The House of Lords affirmed the convictions, holding that "appropriation" in s3(1) of the Theft Act 1968 (UK) involved an element of adverse interference with or usurpation of some right of the owner, and accordingly there was a dishonest appropriation when the price label with the lower price was substituted.	The owner's right to have the goods sold and paid for at the higher price had been adversely interfered with or usurped.	S3(1) referred to "assumption - - of the rights of the owner", a phrase similar to the wording in the definition of "appropriates" in s209(1) of the Code.	It was contended that this meant "all the rights of the owner".		The House of Lords rejected this interpretation.	I respectfully agree.	At the same time the prosecution had contended that any removal from the shelves was without more an "appropriation".	Their

Lordships also rejected this contention; Lord Roskill said at p293:-

"The concept of appropriation - - involves not an act expressly or impliedly authorised by the owner [such as removal of the goods from the shelves] but an act by way of adverse interference with or usurpation of those rights." (emphasis mine)

I respectfully agree, in the sense that "those rights" means "some of those rights."

Fourth, Mr Tippett referred to R v Roffel [1985] VR 511, where the majority of the Full Court followed Morris (supra).	In this case cheques had been drawn on the account of a small proprietary company.	In the particular circumstances the company had consented to this, so it could not be said that the applicant had appropriated the company's property, because he had not interfered with or usurped any of its rights of ownership to its funds.

Against this background Mr Tippett noted that in this case Northfuels Pty Ltd was the owner of the fuel and Mr Hunter was its employee; Calaby Pty Ltd was the licensee of the Ampol Stuart Park service station and the accused was its director and manager.	Mr Tippett submitted that the "appropriation" of the fuel occurred when Mr Hunter acted so as to usurp some of the rights of Northfuels Pty Ltd as

owner, by directing the drivers to take the fuel in question to the Ampol service station.	I accept that submission; I consider that at least by the time the drivers had departed with their tankerloads the various thefts were complete.

Mr Tippett continued that, accordingly, the accused did not "appropriate" the fuel when it arrived at the service station, because it had already been appropriated; and, therefore, he could not be guilty of stealing.	I reject that submission.	In my opinion it proceeds on the incorrect assumption that the Crown's case is that the accused appropriated the fuel when it was delivered.		I do not understand that to be the Crown case, despite some observations by Mr Murphy to which I will later refer.	The Crown appears to contend that the accused and
Mr Hunter were jointly engaged in the theft of the fuel. The prime mover in this criminal enterprise was Mr Hunter.
The accused's role in the theft was to assist therein by providing an opening for the marketing of the fuel, pursuant to the prior arrangements which were made between himself and Mr Hunter.	On this approach that what is alleged is a joint criminal enterprise, of which Mr Hunter has already been convicted, the live question in this trial is as to the criminal complicity of the accused in that enterprise.	I consider that the Crown must establish an act of incrimination by the accused, before the theft occurred; on

the evidence, that act lies in the arrangements made between Mr Hunter and the accused, brief though they were, before each fuel load was ordered by Mr Hunter to be dispatched, and in the light of the initial conversation instituting the arrangements.	That is to say, those arrangements when understood in the light of all the surrounding circumstances, including the amount of the money paid by the accused to Mr Hunter and the manner of that payment.

As Mr Murphy submitted, there is documentary evidence of the appropriation of the fuel on the dates alleged, and its delivery, together with the evidence of Mr Hunter as to arrangements between himself and the accused, and the admissions made by the accused as to the
mode of payment; these support each of the twenty charges in the Indictment.

I reject the "no case" submission insofar as it is based on a lack of evidence of an appropriation by the accused.

Mr Tippett next submitted that the accused had no case to answer on any of the ten alternative charges of receiving.	He submitted that proof that the accused took the goods into his possession, actual or constructive, is of the essence of the crime of receiving.	I agree.

Mr Tippett noted that s229(5) of the Code facilitates the proof of receiving:-

"(5) For the purpose of proving the receiving of anything it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his possession or has aided in concealing it or disposing of it."

He submitted, in that regard, that in this case there was no question of any concealing of disposing of the fuel, and the only live question was whether the accused took the fuel into his possession.	Mr Murphy, for the Crown, agreed with this submission.

Mr Tippett noted that there was no definition of "possession" in the Code; accordingly, he referred to common law authorities on the meaning of "possession", in relation to the crime of receiving, including R v Cottrell (1983) VR
143 and	R v Miller and Connors (1854) 6 CCC 353.

He submitted that in the present case Calaby Pty Ltd had taken the goods into its possession, not the accused.	There was no evidence that Calaby Pty Ltd was the accused's agent in doing so.	As various persons had signed the delivery dockets, it could not be said that the accused had exclusive control over the fuel, a matter required by

law.	Nor could it be said that this was a case of joint possession.	Mr Tippett referred to "Property Offences"	by Williams and Weinberg (2nd ed., 1986), at chapter 8, and the authorities cited therein.	He submitted that the common law authorities on receiving were applicable to s229 of the Code.

Mr Tippett referred to	R v Wiley (1850) 2 Den. 37; 169 ER 408 and R v Cavendish [1961] 2 All ER 856, and noted that in the present case the premises where the goods were received were the premises of Calaby Pty Ltd, and not the premises of the accused.	He submitted that the Crown must prove that the accused had exclusive possession.	He referred in detail to the other authorities cited in Chapter
8 of "Property Offences".

Mr Tippett submitted that there was no evidence that the accused had control of the fuel; nor could he have controlled it, once it was placed in the pumps of Calaby Pty Ltd and mixed with that company's fuel.	He submitted that control of the fuel lay in Calaby Pty Ltd and its agents; and the accused could not be said to have joint possession with Calaby Pty Ltd.	In support of his submission that the Crown must prove exclusive possession, Mr Tippett referred to R v Khalil (1987) 44 SASR 23; and Archbold (1992 Ed.), p2450.

Apart from noting the authorities I do not propose to discuss them because I consider that the definition of "has in possession" in s1 of the Code applies when considering proof of the crime of receiving in s229(1).
That definition provides:-

"have" or "has in possession" includes having under control in any place, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question;"

I note that Mr Murphy submitted there was evidence of a joint criminal enterprise between the accused and
Mr Hunter, acting in collusion.	He submitted that the evidence from Mr Hunter, and the inferences to be drawn from the other circumstances of which evidence had been led, could lead the jury to conclude, for the purposes of the receiving charges, that the accused knew he was not paying Northfuels Pty Ltd for the fuel, and that he had the necessary knowledge or belief at the time of taking the fuel, that it was stolen.	Further, the evidence showed that the accused had control of the fuel at the Ampol Stuart Park service station.

I consider that there is evidence upon which the jury could find that the accused took the fuel into his possession, in the expanded sense of the definition of "has in possession" in s1, with the necessary knowledge or belief at the time that it was stolen fuel.

These are the reasons for refusing the submissions of 17 June 1992, and holding that there was a case to answer on each of the twenty charges.

There is a matter I note by way of addendum.	On  the stealing charges, Mr Murphy appeared to submit that there were two ways in which, on the evidence, the jury could conclude that the accused had stolen the fuel.	The first was on the basis of a joint criminal enterprise with Mr Hunter, already discussed.	The other seemed to be on the basis that the accused had come by the fuel without stealing it and had later assumed the rights of the owner, within the meaning of "appropriates".	I have difficulty in understanding this alternative submission in the light of the evidence in this case.	That part of the definition of "appropriates" seems to be directed at factual situations such as that of a bailee of goods who later converts them to his own use, or cases of what used to be known as fraudulent conversion.	This is not a case which attracts that aspect of "appropriates", in my view, on the evidence.	Mr Murphy

appeared to put the alternative forward, should the view be taken that the jury could not find an asportation, a taking, by the accused.	However, under the Code, and contrary to the former law, criminal liability extends to persons not in possession who appropriate without taking.	I do not consider that the evidence adduced by the Crown could support a verdict of guilty of stealing, on the alternative basis suggested by Mr Murphy.