Croton v. The Queen
[1967] HCA 48(1967) 117 CLR 326
(1967) 41 ALJR 289
[1968] ALR 331
(1967) 62 QJP 62
(Decision by: Menzies J)
Croton
v The Queen
Judges:
Barwick CJ
McTiernan J
Menzies J
Judgment date: 21 December 1967
Sydney
Decision by:
Menzies J
The appellant - who both appeals and seeks leave to appeal pursuant to s. 52 of the Australian Capital Territory Supreme Court Act 1933-1959 (Cth) - was convicted in the Supreme Court of the Australian Capital Territory upon a number of counts of stealing money, the joint property of himself, and one Helena Webster. What the appellant did on each occasion was to withdraw money from a savings bank account in the joint names of himself and Mrs. Webster - which as between the bank and the depositors either was entitled to withdraw - and to deposit the money withdrawn on his own account for his own use. Mrs. Webster had no right to operate upon the appellant's account. It was, in fact, Mrs. Webster's money that had been deposited in the joint account, but, that is not material for the present purposes, because - subject to a defence that Mrs. Webster had given her interest in the account to the appellant - the undisputed basis of the charge was, that the amount at credit in the account was owed to Mrs. Webster and the appellant jointly. (at p336)
2. The offence with which the appellant was charged, i.e., stealing money of which he was a joint owner, depended upon s. 162 of the Crimes Act, 1900 (N.S.W.), which provides, inter alia, that if a joint owner steals property belonging to himself and another jointly, he may be convicted for the offence "as if he was not . . . one of such joint owners". (at p336)
3. This section which first appeared in New South Wales in the Criminal Law Amendment Act, 1883, s. 124, was copied, with immaterial variations, from 31 and 32 Vict. c. 116, s. 1, The Recorder's Act. Before examining s. 162 further it is worthwhile referring to the Larceny Act, 1916 (U.K.), ss. 1 and 40. Section 40, sub-s. (4), repeats s. 1 of The Recorder's Act, but in s. 1 there is a definition of stealing which is as follows:
- 1.
- For the purposes of this Act -
- (1)
- A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:
- Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner:
- (2)
- . . . (iii) the expression 'owner' includes any part owner or person having possession or control of, or a special property in, anything capable of being stolen.
As appears from Kenny's Outlines of Criminal Law, 19th ed. (1966), p. 264, the Lord Chancellor in introducing the Larceny Act, 1916 in the House of Lords said: "The Bill . . . is nothing but a careful compilation of all the existing law relating to larceny and kindred offences. . . . This Bill has faithfully consolidated the existing law and not imposed anything new." The learned authors add that the words "existing law" must be taken to mean both common law and statute law. The first part of the definition of stealing is of course no more than the common law definition. The proviso however reflects statutory extensions of the crime of larceny. The extension of the definition of "owner" was no doubt intended, inter alia, to accommodate s. 40, sub-s. (4). (at p336)
4. Although the provisions of the Larceny Act, 1916 (U.K.) have not been copied in New South Wales, they do help, I think, to understand s. 162 of the Crimes Act (N.S.W.) bearing in mind that the Larceny Act, 1916 states the law as it is still in force in New South Wales and the Australian Capital Territory. The basis of s. 162 is that one co-owner could always in a sense "steal" from another for the section applies only if a joint owner "steals" jointly-owned property. What the section is designed to do is to deprive a co-owner who "steals" of any answer to a charge of larceny based upon his co-ownership of the property "stolen". The fact of an accused person's joint ownership of property alleged to have been stolen by him, could provide at least two answers to the charge. The first is, of course, that being a joint owner it could not be established that the "taking" was without the consent of the owner. The second is that, as the possession of one joint owner is the possession of all the joint owners, a joint owner could not at common law "take and carry away" jointly-owned property. It was only in very exceptional circumstances that an action for trespass would lie by one joint owner against another in respect of jointly-owned property: Jacobs v. Seward (1872) LR 5 HL 464 "Unity of possession" is one of the four unities essential to a joint tenancy, and a judgment for possession against one of two joint tenants is ineffective. See Gill v. Lewis (1956) 2 QB 1 and Fairclough (T.M.) & Sons Ltd. v. Berliner (1931) 1 Ch 60 In Pollock and Wright - Possession in the Common Law - it is stated at pp. 212 and 213 that at common law, one of several co-owners cannot commit theft in respect of jointly-owned property "for all have possession and right to possession in common". There is indeed but one possession of jointly-owned property. In Hale's Pleas of the Crown, vol. 1, p. 512 it is said: "Regularly a man cannot commit felony of the goods, wherein he hath a property. If A. and B. be joint-tenants or tenants in common of an horse, and A. takes the horse, possible animo furandi, yet this is not felony, because one tenant in common taking the whole doth but what by law he may do." (at p337)
5. It is with this second aspect of s. 162 that we are particularly concerned here, for, properly understood, the legal basis of the charge against the appellant must have been, that, when he received the money withdrawn from the joint account, he received it as jointly-owned property of which Mrs. Webster had possession with him and through him. Accordingly, the money being in the one possession, his and hers, he stole by taking it for himself and excluding her from it. In these circumstances the particular question here - and one which was not adverted to by counsel at the trial - is whether the money which the appellant received from the bank was, in law, money jointly owned by Mrs. Webster and himself. As I have said it seems at the trial to have been assumed that it was, subject, of course, to the defence that Mrs. Webster had in effect given the accused the money in the account - a defence which the jury must have rejected. The point that, on the evidence, there could here be no "taking" was however raised in this Court and this problem must now be determined. (at p338)
6. The proceeds of the realization by joint owners of the jointly-owned property - even if it be money - is normally held as joint tenants unless and until the proceeds are divided among them. See Hayes' Estate (1920) 1 IR 207 and The Law of Real Property, Megarry and Wade, 3rd ed. (1966), p. 440. The statute 4 Anne c. 16, s. 27 which, inter alia, entitles a joint owner to bring an action of account against another joint owner who had received more than his share of the proceeds of joint property which has been sold is based upon the assumption that the proceeds of the property jointly owned are held as joint property. See too Jacobs v. Seward (1872) LR 5 HL 464 Accordingly, it would, I think, be in keeping with sound principle to regard moneys withdrawn from a joint account in a bank as the joint property of the persons from whose account it has been withdrawn in the absence of evidence or circumstances pointing to the contrary conclusion. If moneys from a joint account were to be withdrawn by and paid to an agent of the joint owners whose duty it was to bring it to them, the money which the agent received would be joint property and I see no reason why it should not also be joint property when money withdrawn from such an account is paid to one of the owners of the joint account. If this be not so, it is not easy to see what happens to the rights of property of the joint owner who does not actually receive the money. (at p338)
7. At this point it is necessary to refer to a line of cases dealing with joint bank accounts in the names of spouses. These are authority for the proposition that, in the absence of express agreement or facts or circumstances which indicate that the account was kept for some limited purpose, either spouse can draw on it, not only for the benefit of both spouses, but, for his or her own benefit, In re Young; Trye v. Sullivan (1885) 28 Ch D 705; Gage v King (1961) 1 QB 188; Re Bishop (deceased); National Provincial Bank Ltd. v. Bishop (1965) Ch 450; (1965) 1 All ER 249 Where this rule applies it would not be correct to regard money withdrawn from a joint account without more, as joint property. A close reading of the cases does indicate, however, that they depend entirely upon the special relationship of husband and wife. Their authority ought not, in my opinion, to be extended to cases where that relationship does not exist in the absence of special circumstances. The argument that a like rule applies when the joint bank account is in the name of a man and his mistress - which was the relationship between the appellant and Mrs. Webster - is not one that I am prepared to accept as a general proposition. One relationship is, ideally, permanent - the union of one man and one woman for life; the other is, by nature, impermanent, and might hardly endure under the pressure of the temptation to each to empty the joint account for himself or herself. A doctrine appropriate for one relationship is obviously inappropriate for the other. (at p339)
8. The criticism of the charge that it did not instruct the jury that the rule established by the cases just cited applied to the account in the name of the appellant and Mrs. Webster, therefore, fails. Did the rule apply it would not, I think, have been to the point upon appeal that there was, at the time, some evidence that the account was kept for a limited purpose. A clear direction about the whole matter would have been necessary notwithstanding that this point was not taken at the trial. (at p339)
9. During the hearing before us some reference was made to Slattery v. The King [1905] HCA 66; (1905) 2 CLR 546 where it was held that an agent, who fraudulently misappropriated balances of moneys received and disposed of by him on behalf of his principal, could not be convicted of larceny. In that case, however, the particular question was whether the money which Slattery - the agent - had received from debtors of his principal became the property of his principal, and it was decided that it did not. Thus Griffith C.J. said: "It was not consistent with the terms of his employment as agent, as stated in her evidence, that he was to treat all the sovereigns, cheques, and bank notes which he received as her specific property. If, for instance, this property had been picked out of his pocket while he was carrying it about, the thief could not have been charged with stealing Mrs. Scanlon's money. It is clear from her instructions and the course of dealing between the parties that the property was to be dealt with as a mixed fund, out of which he was to make payments on her behalf, and account to her for the balance. At common law that was not a bailment, because the money was received under such circumstances that the specific money received was not to be handed over to her" (1905) 2 CLR, at pp 557, 558 (at p340)
10. That decision has, I think, no bearing upon the particular question here, namely, whether moneys withdrawn from a joint account by one of two joint owners, who are not spouses, is jointly-owned property. (at p340)
11. Because I have found no authorities, other than the line of cases already mentioned and distinguished, dealing directly with the ownership of moneys withdrawn from a joint account, it is perhaps desirable to state my understanding of what happens to the ownership of moneys paid by a bank to a depositor. The money, of course, is originally in the ownership and possession of the bank. When, in accordance with its mandate, the bank transfers the money to some person presenting the requisite book and withdrawal form it parts with both its possession and property. It intentionally transfers possession to the person effecting the actual withdrawal, but the destination of the property does not depend upon the intention of the bank. That depends upon other circumstances. Thus if the person effecting the withdrawal is an agent to receive the money, make disbursements and account for the balance, the ownership passes to him to account for the money to his principal. Slattery v. The King [1905] HCA 66; (1905) 2 CLR 546 is authority for this. However if the money happens to be paid to a person whose mandate is to bring the very money he receives from the bank to his principal, the depositor, then the ownership passes directly from the bank to the depositor. The bank in making the payment would not normally know what happens to the ownership of the money that it pays; with that it is not concerned; its duty is to give possession in accordance with a proper mandate. When the payment is made directly to the depositor, of course, both possession and property pass to him, and when the payment is made to one of two persons with a joint account, the possession, and I think the property in the money, pass immediately to the joint owners of the account as joint owners, in the absence of a special arrangement or special circumstance. In the absence of any evidence of special circumstances here - for the jury must have rejected the defence of a gift from Mrs. Webster to the appellant - I think the appellant did receive possession and property as a joint owner of the money in question when the bank paid it to him. (at p340)
12. Having reached the conclusion already stated upon what seem to me to be the substantial questions in the case, I think the appeal should be dismissed, and the application for leave to appeal should be refused. The learned judge's charge to the jury did, I think, leave to them what were substantially the right issues for their decision, although, as I have said, the strict legal position was not defined no doubt because no attention was given to it. Counsel for the appellant did criticize the summing up and the Crown's case in a number of particulars, but these criticisms have not persuaded me that the trial miscarried or that justice requires that the appellant should be retried if upon the evidence he could have been lawfully convicted. This, I think, was the case. (at p341)
13. The sentences imposed upon the appellant were imprisonment for twelve months on each count, the sentences to be served concurrently. It was argued that this was too severe. I do not agree. If the jury disbelieved the appellant, as they must have done to convict him, he was guilty of a very mean and disgraceful piece of dishonesty. (at p341)