Papua New Guinea Law Reports - 1977
[1977] PNGLR 257
SC120
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
JOHN KASAIPWALOVA
V
THE STATE
Waigani
Frost CJ Williams Kearney JJ
1-3 August 1977
29 August 1977
CRIMINAL LAW - Particular offences - Stealing - Money received under a direction - Elements of offence - “Money” - “Direction” - Whether credit in bank account property a thing “capable of being stolen” - Construction of s. 393[ccxxviii]1 of the Criminal Code (Queensland adopted) now (s. 379 of the Criminal Code) - Application of s. 391(1)[ccxxix]2 and s. 391(6)[ccxxx]3 of the Criminal Code (Queensland adopted) now s. 377(1) and s. 377(6) of the Criminal Code.
The appellant, Kasaipwalova, was charged with the offence of stealing from the Government of Papua New Guinea the sum of K15,000, which it was alleged had been given to him with a direction that it should be applied to the establishment of an arts centre at Kiriwina (the Sopi Arts Centre) and convicted of stealing the sum of K14,000.
The circumstances giving rise to the charge were as follows: The appellant who was managing director of a company, Kabisawali Village Development Corporation Ltd. (K.V.D.C.) incorporated in 1973, had been successful in obtaining loans from the Papua New Guinea Development Bank for enterprises in the Trobriand Islands directed towards the preservation of the culture and arts of those islands. In 1974 the K.V.D.C. first approached the National Cultural Council for funds and in April 1975, through the appellant sought funds for an arts school at Kiriwina to be known as the Sopi Arts Centre. After discussions and correspondence the National Cultural Council resolved to grant K15,000 “to help establish Sopi Arts School — Trobriand Islands”. On 27th June, 1975, a cheque for K15,000 was made payable to Sopi Arts Centre and was collected and paid into an account by some person other than the appellant and credited on 15th July, 1975, to account styled Sopi Arts Centre with the Bank of South Pacific, which account was the appellant’s. On 24th May, 1975, the appellant had arranged an overdraft of K4,500 in the name of Sopi Arts Centre with the ANZ Bank, Boroka, in anticipation of the funding from the National Cultural Council, and for the purposes of paying for stock of a tradestore which the appellant had some time previously agreed to purchase. After receipt of the cheque for K15,000 there followed various banking transactions evidencing manipulation of the various accounts of the Sopi Arts Centre, the appellant and the K.V.D.C. and including a payment by cheque of K9,500 to one Worsley. There was no evidence that the appellant had enriched himself in any way and evidence that little or no money was actually spent on the Sopi Arts Centre.
On appeal against conviction.
Held
(1)      For the offence of stealing as defined in s. 391 of the Criminal Code (Queensland adopted) (s. 377 of the Criminal Code) to be constituted there must be an actual moving or in the case of fraudulent conversion an actual dealing by some physical act of a thing capable of being stolen.
(2)      (Per Frost C.J. and Kearney J., Williams J. not deciding.) Under s. 391 (s. 377) fraudulent conversion can only be made out if there is a conversion of the thing actually entrusted or bailed to a person.
(3)      (Per Frost C.J. and Kearney J., Williams J. dissenting.) Where property is voluntarily entrusted to another with a direction, s. 393 (s. 379) must be read with s. 391 (s. 377) so that for criminal responsibility to be established the offence remains one of stealing, and to enable proof thereof the money or proceeds thereof must remain a thing capable of being stolen in relation to which an actual dealing by some physical act remains possible.
(4)      (Per Frost C.J., Williams J. not deciding and Kearney J. dissenting.) Where money is paid into a bank account and the account is then drawn on by the person who received the money, for his own purposes, there can be no stealing under s. 391 (s. 377) unless on the facts the payment of the money into the bank constitutes a taking or fraudulent conversion of the money, as all that remains is a chose in action and the physical acts of operating upon the account by cheque or otherwise cannot constitute an actual moving or other dealing with a thing capable of being stolen.
R. v. Davenport [1954] 1 W.L.R. 569, Croton v. The Queen (1967) 117 C.L.R. 326, and R. v. Jamieson [1975] P.N.G.L.R. 216 referred to; Reg. v. Hally [1962] Qd. R. 214, and R. v. Smalley [1963] Qd. R. 508 considered.
(5)      (Per Kearney J.) The fact that a bank credit is at law characterized as a chose in action does not exclude it from being “money” as defined in s. 1 (s. 1) and within s. 393 (s. 379) and property capable of being stolen within s. 391 (s. 377). The effect of s. 393 (s. 379) is that the bank credit is deemed against the receiver to be the property of the person for whom the original money was received which will operate to expose the customer to criminal liability under s. 391 (s. 377) should he fail to comply with the direction given and fraudulently convert the amount of the credit to his own use.
In re Diplock [1948] Ch. 465 at pp. 521-523 and Banque Belge v. Hambrouck [1921] 1 K.B. 321 referred to.
(6)      (Per Frost C.J. with whom Kearney J. agreed, Williams J. not deciding.) The instruction or direction required by s. 393 (s. 379) need not be express, it may be tacit, it may be implied from the circumstances and may be conditional; it should be free from ambiguity and uncertainty and understood to be binding between the parties; the purpose specified should be of a general nature and although the direction will usually accompany the receipt of the money, it will be sufficient if the receipt of the money is identified with a prior direction.
Orsi v. Legal Contribution Trust [1976] W.A.R. 74 followed.
(7)      (Per Williams J.) The legislative pattern of s. 391 (s. 377) and s. 393 (s. 379) is to deem ownership in the original owner of money received in exchange for money originally handed over or the proceeds of the things substituted for that originally handed over with the effect of extending the definition of stealing, which includes fraudulent conversion to the proceeds of property converted under a bailment by treating a bailor as the owner of the proceeds to the same extent as he was of the property originally bailed.
Slattery v. The King (1905) 2 C.L.R. 546 at p. 560 applied.
(8)      (Per Williams J.) In the circumstances it not being contemplated that the money or anything in its stead should be returned to the National Cultural Council or delivered on account of the National Cultural Council, the relationship of bailor and bailer did not exist and there could be no conversion of the proceeds into which the cheque was converted.
(9)      (Per Frost C.J.) In the circumstances, from the manner in which the cheque was drawn and the extended period over which the money was to be spent it was clear that the cheque and the money were intended to pass to the appellant and accordingly the money was incapable of being stolen by the appellant under s. 391 (s. 377).
(10)    In the circumstances, there being no evidence that the appellant ever handled the cheque or did any physical act or gave any direction in relation to it or that the person who paid it into his account was his servant or agent, there was accordingly no proof that any act of stealing as required by s. 391(6) (s. 377(6)) was completed.
(11)    (Per Frost C.J., Williams J. not deciding.) In the circumstances the facts did not justify any more than an inference that the money was granted for the purpose of the establishment of the Sopi Arts Centre and upon the understanding or undertaking that it should be so applied, there was no legal relationship between the appellant and the National Cultural Council and accordingly there was not sufficient evidence to find that the money was received by the appellant with a “direction” as required by s. 393 (s. 379).
The Queen v. Christian [1873] L.R. 11 C.C.R. 94 referred to.
(12)    (Per Kearney J.) In the circumstances the evidence justified a finding that there was a tacit direction that the money was to be applied to the physical construction of the Sopi Arts Centre.
(13)    (Per Frost C.J.) In the circumstances, once the money was paid into the bank it ceased to exist in the form of a thing capable of being stolen; it became a chose in action which does not come within the description in s. 393 (s. 379) of “money received in exchange”, and accordingly there could not be in law any theft of this right or any physical act as required to constitute stealing under s. 391 (s. 377) and s. 393 (s. 379).
(14)    (Per Kearney J.) In the circumstances there being a necessary physical dealing with the “money” in the account, by the appellant by way of cheque, there was sufficient evidence to justify the finding of guilty of stealing money to the value of K9,500.
(15)    In all the circumstances, the appeal should be allowed, the conviction quashed and the appellant discharged.
Appeal
This was an appeal against conviction on a charge of stealing under s. 393 of the Criminal Code (Queensland adopted) now s. 379 of the Criminal Code.
Counsel
M. F. Adams, for the appellant.
B. M. Ryan, for the respondent.
Cur. adv. vult.
29 August 1977
FROST CJ: In this case the appellant appeals against his conviction by the National Court in January last upon a charge of stealing for which he was sentenced to 2 years’ imprisonment.
The indictment contained two counts; the first, that between the first day of June 1975 and the thirty-first day of December 1975 in Papua New Guinea, he stole fifteen thousand kina (K15,000) the property of the Government of Papua New Guinea, which money had then lately been received by the said John Kasaipwalova with a direction that the same should be applied to the establishment of an arts school at Kiriwina to be known as Sopi Arts Centre, and second, that between the twenty-eighth day of June 1974 and the twenty-fourth day of June 1975 he stole five thousand dollars ($5,000) the property of the Government of Papua New Guinea which money had then lately been received by the said John Kasaipwalova with a direction that the same should be applied to the establishment of a cultural centre at Kiriwina to be known as the Kabisawali Cultural Centre.
It was on the first count that the appellant was convicted. The sum of money he was found guilty of stealing was not the precise sum charged, but K14,000. On the second count the appellant was acquitted.
The hearing lasted a month. The appellant’s unsworn statement from the dock was spread over four days. The learned trial judge found that the appellant had received the sum of K15,000, that it was not used for the purposes alleged in the indictment for which it had been directed, that K4,500 had been used by the appellant for the purchase of the stock of a trade store, and K9,500 diverted into the pockets of one Michael Worsley, the appellant’s consultant and adviser, both with intent to defraud, and therefore the sum of K14,000 had been stolen by the appellant. The broad submission put by Mr. Adams, who conducted the appeal most ably for the appellant, was that, whilst he disputed the propriety of any finding of a dishonest intention on the part of the appellant, the trial had proceeded upon a misapprehension of the elements of the crime of stealing, and when properly analyzed the facts accepted by the trial judge simply would not support such a charge.
I shall consider first the law applicable, then the facts of the case, and finally, was there sufficient evidence to support the charge of stealing?
THE LAW APPLICABLE
At the time when the offence was alleged to have been committed the Criminal Code (Queensland adopted) was in operation, so that it is to the sections of that Code that reference is to be made. (The corresponding provisions of the Criminal Code are, however, to the same effect). As the prosecution was brought under s. 393, a little used section of the Code, and there is only one reported Papua New Guinean case which is relevant, I shall have to refer to outside decisions. Perhaps this appeal may reduce that necessity for the future.
Under s. 398 any person who steals anything capable of being stolen is guilty of a crime, and is liable to the punishment prescribed. The definition of stealing is to be found in s. 391, which provides that a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing (s. 391(1)). The usual instance of a fraudulent intent is an intention to permanently deprive the owner of the thing capable of being stolen (2) (a). An inanimate thing such as money is capable of being stolen if it is the property of any person and movable (s. 390). In this case it is relevant to note that a chose in action, such as a debt, is therefore incapable of being stolen.
Now, as Mr. Adams submitted, it is necessary to consider the definition of stealing under the Code against the broad outlines and development of the original offence at common law which was called larceny. These are authoritatively stated in the judgments of Griffith C.J. in Slattery v. The King[ccxxxi]4 and Jordan C.J. in R. v. Ward[ccxxxii]5, cited by him, which are of great assistance. Larceny could only be committed of a specific thing belonging to another person. It was necessary to prove a taking or carrying away which was called an asportation, coupled with an intention to deprive the owner of the property in the thing taken. Consequently at common law where a chattel was delivered to another on the terms that it was to remain the property of the original owner, and was to be returned or delivered according to the directions of the owner, which in law amounts to a bailment, there could be no larceny because there was no wrongful taking, and this remained the position so long as the bailment continued. To meet this gap in the law in some jurisdictions where the common law was in force legislation was passed to constitute the offence of larceny as a bailee. (See for example Crimes Act 1900 (N.S.W.) s. 125). But under the Criminal Code (Queensland adopted) the same result was achieved by extending the definition of stealing to cover the case of fraudulent conversion of the thing by a person to his own use or the use of any other person (s. 391(1)). The elements of stealing were carried over for the act of stealing is not complete until the person converting the thing actually deals with it by some physical act (s. 391(6)). In the application of the law so developed, as Jordan C.J. pointed out in R. v. Ward[ccxxxiii]6 at p. 315, in order that a person may be guilty of larceny as a bailee, and it follows of fraudulent conversion to his own use, there must be an actual bailment, and this led to difficulties where it was money that was misappropriated. There may of course be a bailment of money in the form of specific coins, notes or cheques.
For the legal relationship that may be constituted when money is handed over, I can do no better than to cite the words of Jordan C.J.:
“When money is handed over by one person to another to be applied for a particular purpose, it is a question of fact whether it is intended that the very coins, notes or cheques shall be retained by the recipient until they are so applied and then applied in specie; or whether it is intended that the recipient shall, or may if he choose, become a debtor for the amount so received and assume an obligation to pay an equivalent amount for the prescribed purpose. In the former case, the specific money remains the property of the person who handed it over, until it is so applied.... But the initial question must always be determined; was the money to remain the property of the person paying it until it had been applied by the payee, or was it to become, or might it become, the payee’s property subject to a liability to account? This depends entirely on the facts of the particular case.” R. v. Ward[ccxxxiv]7.
To adapt the illustration given by the Chief Justice, if a person hands a boy a 20-toea coin “with instructions to buy him a newspaper and bring back the change, the inference that no more than a bailment is intended is overwhelming” — op. cit. p. 316. But where money in the form of coins, notes or a cheque is given by one to another with instructions to use it for a specific purpose, in ordinary circumstances, and particularly if the amount is large and the contemplated expenditure is to take place over a period of time, the inference is that the person receiving the money acquires the property in the money subject at the most to a liability to account for a corresponding sum. If the person receiving the money then converts it at common law, he could not be guilty of either fraudulent conversion, for that offence involves the conversion to one’s own use of the property of another, or of the simple taking of the money, for the same reason, that is, it had become his own property and one cannot steal one’s own property (op. cit. p. 316). If authority is required for that proposition, it will be found in R. v. Smalley[ccxxxv]8. For criminal responsibility to be established in those circumstances the offence of obtaining goods by false pretence or wilfully false promise with intent to defraud under s. 427, would have to be proved.
It is convenient at this stage to digress and consider two matters, the first of which is what constitutes conversion under s. 391, for that was the case made by the prosecution.
It has been pointed out in a case in England that no judicial definition has been attempted — Rogers v. Arnott[ccxxxvi]9, cited in Carter’s Criminal Law, 4th ed., in the notes to s. 391. Mr. Adams argued that the meaning of conversion in the civil law should be adopted. However, as Donovan J. pointed out in Rogers v. Arnott[ccxxxvii]10, the analogy is misleading because a claim for damages for conversion cannot succeed unless the owner has suffered damage, which is not the case in a criminal prosecution for fraudulent conversion. The learned judge considered that it would be rash to attempt a definition of conversion which would cover every possible case (op. cit. at p. 251). However, as the text writers cited in the judgment point out, conversion involves a bailee in the crime of stealing. At common law a prisoner must be shown to have possession of the goods and generally what the prosecution must prove is some conduct on the part of the prisoner setting up a full title to the property or asserting a right to pass the property. Cases referred to in the judgment of Donovan J. in which convictions for fraudulent conversion have been upheld include a refusal to return a chattel to the true owner on demand and continued detention of it, the sale of a pony by a man who had simply hired it and, as was held in that case, the attempted sale of property held under a bailment.
However, it is to be noted that under s. 391(4) it is expressly provided that in the case of conversion it is immaterial whether the thing converted is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it. Any physical act amounting to a disposal of the thing would appear to constitute an instance of a conversion if the thing is not held in the bailee’s possession.
The second matter which I deal with at this stage is the effect of the law of banking upon a type of case which might otherwise be considered to sustain a charge of stealing. This was not adverted to at the trial, but was in the forefront of Mr. Adams’ argument. I have mentioned that for the offence of stealing as defined in s. 391 to be constituted there must be an actual moving or, in the case of fraudulent conversion, an actual dealing by some physical act of a thing capable of being stolen. Now, if money in any form is the subject of a charge, whilst it is retained in that form there is no difficulty in the offence being capable of completion because the money is capable of being moved or actually dealt with by some physical act. But what if the money is paid into a bank account, and the account is then drawn on by the person who received the money for his own purposes? This type of case has been considered in England, R. v. Davenport[ccxxxviii]11, in the High Court of Australia in an appeal from the Supreme Court of the Australian Capital Territory, Croton v. The Queen[ccxxxix]12, and in Papua New Guinea in Reg. v. Jamieson[ccxl]13. In the latter case Prentice J., as he then was, in a case of stealing under s. 391 and s. 393, adopted the law as stated in those outside jurisdictions in relation to larceny, that if money is paid into a bank, that money becomes at once the money of the banker, as the relationship between banker and customer is that of debtor and creditor, and all that the customer has is a chose in action, that is the right to recover from the bank the amount standing to his credit. On a strict analysis of the case, this view may have been obiter, as Mr. Ryan submitted, but in my opinion it was clearly correct. Thus under the Code there can be no stealing in such a case unless on the facts the payment of the money into the bank constitutes a taking or fraudulent conversion of the money, as all that remains is a chose in action, and the physical acts of operating upon the account by cheque or otherwise cannot constitute an actual moving or other dealing with a thing capable of being stolen.
I am impelled to this conclusion although this aspect of the law of banking has not been adverted to in the Queensland cases. At least two of the cases can be supported on the facts. In the notes to s. 391 set out in Carter’s Criminal Law, 4th ed., at p. 315, there is reference to the decision of the Full Court of Queensland in Reg. v. Hally[ccxli]14. In that case, although the conviction was set aside for other reasons, it was held that there was sufficient evidence to support a conviction of the solicitor for fraudulent conversion of monies received by him on behalf of a client, and later paid into a bank account. But it is clear from the facts in relation to that transaction and also evidence led of similar acts to show a fraudulent intention, that the Full Court considered that the payment into the bank was accompanied by a fraudulent intention, which would constitute a sufficient dealing with the money. Similarly on the facts there was a fraudulent conversion of the cheques upon payment into the offender’s bank account in R. v. Petrie[ccxlii]15.
Returning now to the problem of the application of the law of the stealing to cases of property being voluntarily entrusted to another, s. 393, arises for consideration. It will be noted that under s. 391 fraudulent conversion can be made out only if there is a conversion of the thing actually entrusted or bailed to a person. That leaves unprovided for the case of a person who converts to his own use other property into which the thing entrusted has been converted. In one common law jurisdiction this problem has been dealt with by the broad measure of extending larceny as a bailee to cover any property into which the property bailed has been converted. Crimes Act (N.S.W.) 1900, s. 125.
The question is whether s. 393 is limited to this type of case. It is first to be noted that it applies only where a person receives property which is limited to three categories — any money, which by definition under s. 1 includes cheques, or valuable security or a power of attorney for the sale, mortgage, pledge or other disposition of any property, whether capable of being stolen or not. Thus in Queensland it has been held to have no application where chattels such as potatoes are received for sale. R. v. Smalley[ccxliii]16. Next it applies, so far as is material to this case, where the money is received with a direction that the money, or any money received in exchange for it, or the proceeds of such security, or of such mortgage, pledge or other disposition, shall be applied to any purpose or paid to any person specified in the direction. The section then goes on to provide that such money or proceeds shall be deemed to be the property of the person from whom the money, security or power of attorney was received until the direction has been complied with. It is to be noted that the deemed property is not expressed to include any valuable security or the power of attorney or deed or instrument, if any, relating to the mortgage, pledge or other disposition. It was argued by Mr. Adams that this omission, and the words of the section, suggest that in those two categories of property what the section is directed to is a bailment of the valuable security, the power of attorney and, if any, the instruments of title, with provision for criminal responsibility in respect of the proceeds, it being left to s. 391 to govern the case of a fraudulent conversion of those instruments.
Mr. Adams strongly argued that the same construction should be given to the case of a person receiving money, so that the words “such money” (“that money” in s. 379 of the Criminal Code carries the same meaning) do not extend to money the property in which has passed to the receiver. If this argument is carried to its logical conclusion the operation of the section is to be limited to “any other money received in exchange for” the money originally received, as in the case of a cheque being cashed. The argument is supported by the view expressed in Australian Criminal Law, 2nd ed., by Professor Howard, that s. 393 is one of the sections in the Code the effect of which is to extend the general definition of stealing “to the proceeds of property converted under a bailment” (at p. 190). But the view is a general one, and is not accompanied by any detailed consideration of s. 393.
Although my mind did waver on this point the difficulty I felt at the hearing remains with me that such a construction would be contrary to the express words of the section, and there is no ground for so limiting its plain words. The general view expressed by Professor Howard relates to both s. 393 and also s. 394, which is concerned with funds, etc., received by agents for the sale of property. That view is not, in my opinion, supported so far as s. 393 is concerned by an examination of that section. Although the section heading, “Funds, etc., held under direction”, is not part of the Code, I would adopt it as indicating the true purpose of the section. The mischief to which s. 393 is directed, in my opinion, is the theft of money or money received in exchange for it or the proceeds of the two strictly limited categories of property, where that money or property is received by a person under a direction as provided for in the section, irrespective whether the money, valuable security or power of attorney is the subject of a bailment, or the property therein has passed to that person. The provision does appear to involve that in the case of valuable security or power of attorney, the property is received under a bailment, but that consideration is not what the section is directed to and, in my opinion, affords no reason, in the case of money received under a direction, to limit the operation of the section to money received under a bailment. Further, if the end result of the argument is to confine the operation of the section in such a case to money received in exchange for the money received, I can see no reason for such a distinction. I should also add that whilst the fraudulent conversion of money the subject of a bailment, whether or not received under a direction, remains an offence under s. 391, an increased punishment is provided for in cases which are brought within s. 393 (s. 398 VIII(b)).
My conclusion is that the operation of the section does extend to the case of the receipt of money with an appropriate direction in which, in the circumstances of the case, apart from s. 393 the property in the money would pass to the person receiving it. By the legal fiction which the section creates, that money remains the property of the person from whom it was received.
What then is the effect of reading s. 391 with s. 393? Mr. Ryan in his useful submission argued that there could be not only a fraudulent conversion of the thing bailed, but also any proceeds generally into which the thing bailed had been changed. By “bailed” I take it that the money received under s. 393 was meant. It is possible that Sir Samuel Griffith, the draftsman of the Code, in Re a Solicitor[ccxliv]17 may have so held. In that case certain money was given to the solicitor to use for a specified purpose. He did not apply it for that purpose. He was asked to give the money back. He then sought to keep it as a loan, and later when he attempted an explanation, the Court did not believe his story. Griffith C.J. in delivering the judgment of the Full Court said simply that under the Code it was now stealing. But no details of the facts are given and it does not appear that the Court adverted to the particular elements of stealing or of the legal effect of payment into a bank account. I have considered Mr. Ryan’s submissions and in particular the submissions that Croton’s case[ccxlv]18 can be distinguished on the ground that this is a case of larceny by a bailee, and that s. 391(1) and (4) coupled with s. 393 create an offence of misappropriation of proceeds generally, similar to the offence under s. 178a of the Crimes Act (N.S.W.) 1900, but I am unable to accept them. The reference to s. 391(4) I assume involves the provision that it is immaterial whether the thing converted is in the possession of a person who converts it. But the fact that the thing may have not been in possession does not enlarge the meaning of “proceeds”.
In my opinion the method of dealing with the case of money or property received with a direction has this effect, that s. 393 must be read with s. 391, so that for criminal responsibility to be established the offence remains that of stealing, and not the wider statutory offence found in some jurisdictions of misappropriation, and to enable proof of one element, the money or proceeds must remain a thing capable of being stolen, in relation to which therefore an actual dealing by some physical act remains possible. As I have said, money ceases to exist as such a thing in the hands of the person receiving it upon payment into a bank account. It is true that, as Mr. Ryan submitted for the respondent, such an application of the law of banking may limit the effect of s. 393, but that follows from the method adopted by the legislature of bringing the objects to be achieved by s. 393 into the law of stealing, and indeed the whole structure of Ch. XXVI, as it now is.
The meaning of “direction” in s. 393 was also argued by Mr. Adams. He relied upon R. v. Evans[ccxlvi]19. In a somewhat similar provision in the Victorian Crimes Act, it was there held by the Full Court of the Supreme Court of Victoria that, “A direction by one person to another is an order or command to do a specified act or take a specified course intended and understood to be presently binding and operative as between the person giving and the person receiving the direction. If it be couched in terms of uncertainty or ambiguity this intention may not be sufficiently clear and in this event what has transpired will simply not amount to a direction”. It was held also the direction may be conditional upon the concurrence of some future event. From cases cited with approval in the judgment it is clear that the Full Court considered that a direction could be implied from the circumstances. The two cases cited are both cases in which there was an existing relationship. Thus the Court referred to The Queen v. Christian[ccxlvii]20, in which a conviction was upheld where it was open for the jury to have found that the accused, a broker, was entrusted with monies of a client with a direction that he was to apply them in payment of certain bonds to be obtained on her behalf.
Mr. Adams argued that unless the effect of the direction was to create a legal obligation upon the person receiving the money, such as would occur where there is an existing relationship between the parties, say, of principal and agent or a bailment is created, the legislature can scarcely have intended to impose criminal responsibility. But I consider that there is nothing in s. 393 requiring its operation to be so limited, and I would not go farther than to hold that the section requires an instruction or direction as defined, which may be implied from the circumstances and conditional, but free from ambiguity and uncertainty, and understood to be binding between the parties.
Further, there can, in my opinion, be a direction within the meaning of s. 393 even although the purpose specified is of a general nature. Otherwise, for example, a person who received a cheque with a direction to apply it for the purpose of establishing a school for traditional dancing and who then cashed the cheque and fraudulently applied the money to the use of another, say, by paying off hire purchase arrears on his brother’s car, would not be guilty of an offence, a result unlikely to have been intended by the legislature.
Since the hearing of this appeal there has come to my attention the case of Orsi v. Legal Contribution Trust[ccxlviii]21, which was not referred to by counsel. That was an action against the Legal Contribution Trust of Western Australia to recover compensation for pecuniary loss by reason of the professional defalcation of a solicitor. “Professional defalcation” was by the statute defined to include the stealing or fraudulent conversion by a practitioner of money entrusted to him on behalf of another. It was held that the effect of provisions in the Western Australian Criminal Code to the same effect as the Code, ss. 391, 393, 394 and 395, to cite the headnote, “is that funds held under direction could be stolen by the bailee.... There must have been a direction that the money be applied to a specified purpose. It would not be enough that there had been a giving of money because of a representation that the money would be used for a particular purpose. That would be false pretences, but not stealing. The direction need not be express. It may be tacit ...” The case is an instructive example of the application of s. 393 and, with respect, contains a succinct and persuasive statement of the effect of ss. 391 and 393. Its relevance to the present appeal is that the provision to the same effect as s. 393 was, in the opinion of Wickham J. who heard the case, intended to cover the loophole at common law whereby there could be no fraudulent conversion of money or property, the property in which had passed to the person receiving it. This view is in conformity with the view I had earlier reached. Applying the law to the facts, Wickham J. found that the solicitor, who became bankrupt, did not use any of the money for the purposes directed, that he used it in each case for an unauthorized purpose, and that he stole the money. There was no reference to the case of Croton v. The Queen[ccxlix]22, but in view of the judge’s finding that the cheques were obtained by a false pretence or wilfully false promise, and with intent to defraud, on the facts it seems that that intention accompanied the payment of the cheque into the bank account, which may have been capable of constituting a sufficient dealing with a thing capable of being stolen within the meaning of s. 391(6).
THE FACTS OF THE CASE
The appellant is a young man who comes from the Trobriand Islands. As the trial judge said, “he is undoubtedly a man of intelligence, dedicated to culture and the arts, and particularly those of the Trobriand Islands. He is a man of many parts, well known as an actor and playwright. He has a reputation for being a gifted writer on cultural and artistic matters.” In 1972 he became a leader of a movement in the main Island, Kiriwina, known as the Kabisawali Movement, which, when he first became interested in it, was a cultural movement. Its aim was the preservation of the well-recognized rich and pervasive culture of the Trobriand Islands people in the face of external pressures for change. As he said in his statement at the trial, “what we wanted was to build or to create something that is new and a combination of both the traditional custom and the influence of other cultures”. In 1973 he terminated his University studies to devote his whole time to the Movement. Under his leadership the aims of the Movement were widened, cultural activities became integrated with social, economic and political activity. There was formed the Kabisawali Village Development Corporation Ltd. (K.V.D.C.), a limited company with a fully paid-up capital of K5.00 held by five shareholders, including the appellant, each of whom held one share. The appellant became the Managing Director. He was successful in obtaining from the Papua New Guinea Development Bank loans of K6,000 and later K2,000. Each loan, he said, has been duly paid off. The “Arts Trobriand” was set up in Port Moresby for the sale of artefacts and carvings which were produced by Trobriand artists. New enterprises were started, including a restaurant.
In 1975 a head office was opened in Port Moresby and the Corporation decided to withdraw from its political activities. By this time interests in land had been acquired in Kiriwina, and at Hohola in the National Capital District. But the preservation and development of traditional culture went on as an integral part of the economic development.
It was in February 1974 that the first approach was made by the K.V.D.C. to the National Cultural Council. That body, which was set up under the Cultural Development Act 1974, s. 13, has as one of its statutory functions “the encouragement and support of the development and preservation of culture and of the Arts by Local Government Councils and other persons”. The first proposal was for a Trobriand Cultural Centre of which particulars and itemized costs were given amounting to K62,500. The Council’s decision, as appears from the minutes, was that a grant be made of K20,000 “for construction of museum and of ancillary facilities for Trobriand Cultural Centre. Request detailed submissions on proposed expenditure”. However, because of friction which had developed between the Kabisawali Movement and a rival Local Government group, it was decided that the grant should be cut down to K5,000. This payment which was eventually made was the subject of the second count, upon which the appellant was acquitted.
The grant of K15,000 referred to in the first count, now under appeal, was made following a Council Meeting which commenced on 21st April, 1975, and continued on 24th April, 1975. It was towards the end of the first part of the meeting that the appellant, who was a member of the Council, submitted a document relating to the Sopi Arts Centre. The document was headed “SOPI — the adaptation of a traditional aesthetic concept for the creation of a Modern Art School at Kiriwina”. The school was seen by Mr. Haugie, the Director of the Council, who was called as a witness for the prosecution, as a school which could be identified as a central point where ideas were being consolidated in cultural development. As the trial judge said, the Sopi paper is essentially a discussion of the ideas that were to be the basis for the establishment of the school. But there is reference also to a site which had been found and cleared, and the first building nearing completion, and also to facilities being required for visiting artists from other parts of Papua New Guinea and abroad.
There is no minute recording the decision of the Council, but it was open to the trial judge to accept a special agenda item, later recorded, as evidence that the Council decided to make a grant of K15,000, “to help establish Sopi Arts School, Trobriand Islands”. This decision was made on the second day of the meeting after the members had had an opportunity of reading the appellant’s paper. It was open to the trial judge to accept Mr. Haugie’s evidence that the appellant was asked at the meeting to provide cost details, and further that, although the grant was decided upon, the cheque was not to be handed over until the breakdown of the costs had been obtained. This was supported by a letter dated 24th May, 1975, forwarded by the appellant as director of the K.V.D.C., to the Chairman of the National Cultural Council, enclosing “the completed plans of the physical layout of Sopi Arts School and budgeted expenditure for stage 2, which covers the period for the next twelve months and includes the Council grant of K15,000.00 in the budgeted total expenditure of K37,400.00”. The details of expenditure include the first item, buildings, which is further itemized under the headings of cave, picnic area, arts centre and parking area, to a total cost of K14,900. Additional items were equipments K12,000, scholarships K6,000 and administrative costs K4,500. In the letter the appellant also expressed his concern that the Council’s decision had not been put before the Minister for approval. This led the Chairman of the National Cultural Council, Mr. Moi Avei, to minute on the letter that the Council had approved, and that the matter was to be processed “as swiftly as possible”.
On 27th May, Mr. Haugie wrote to the K.V.D.C. stating that after discussion the matter had been rectified and brought before the Minister for his consideration. The following day the appellant upon K.V.D.C. letterhead replied to the Director requesting that the grant monies be paid “as they become available direct to our bankers, the Bank of South Pacific Limited, Port Moresby branch, in the account of Sopi Arts Centre”. In fact the grant was made in the form of a cheque for K15,000 payable to Sopi Arts School. It is of significance in this case to note that on the evidence of Mr. Haugie the cheque was picked up — he did not say by whom — and also that the bank deposit slip indicated that it was paid into the bank by another person. Although the cheque which was dated 27th June was not paid in until 15th July, 1975, there is no evidence whatever that the cheque was in the possession of the appellant or as to the relationship, if any, between the appellant and the person who paid in the cheque, and certainly no evidence that that person was the agent of the appellant. These matters do not seem to have been an issue at the trial, for it was said by the trial judge of the appellant’s request that the money should be paid directly into the account, that this was done.
Immediately after the receipt of Mr. Haugie’s letter of 24th May, 1975, the appellant made use of it in a manner that he did not disclose to the Council. He had earlier that year agreed to purchase the stock of a tradestore conducted by a Mrs. Holland on Kiriwina. Naturally the vendor declined to hand over the store until payment of the balance of K4,500 was made. What the appellant did was to go to the ANZ Bank, Boroko, and request an overdraft in the account “Sopi Arts Centre”. It was granted on the production of that letter, and the appellant’s statement that the grant was to be for K15,000. Two days later, on 29th May, 1975, a bank draft for the balance was drawn up in favour of Mrs. Holland. The fact that it was in part-payment for the tradestore was apparently mentioned to the bank officer. That cheque was later delivered to Mrs. Holland and debited against the Sopi Arts Centre account before the Council’s cheque was paid in. The effect of this transaction was that, if the appellant was to claim, as he did at the trial, that it was a legitimate use of the Council’s funds the grant was from the beginning effectively reduced to K10,500.
It seems to have been accepted at the trial that the Arts Centre bank account was the appellant’s. In fact the notice of authority form given to the bank showed the appellant and one Gerald Beona, “being managing director and secretary of K.V.D.C.”, as carrying on business under the name of Sopi Arts Centre, and this was used by Mr. Adams to found an argument that the account belonged to K.V.D.C.
On 18th July a cheque for K9,500 made payable to Michael Worsley was debited to this account, leaving a credit balance of K475.55. On 20th September a cheque for K9,635.86 drawn by Worsley was paid into the account but it was dishonoured on 21st September. A corresponding debit entry was duly made. Three days later, on 24th September, another cheque drawn by Worsley was credited to the Arts Centre account and was duly met. However, over this period there was a manipulation between the various accounts by the appellant of a number of cheques drawn on the Arts Centre account, the appellant’s own personal account, the Bula Bula tradestore and the K.V.D.C. account, and the cheques drawn in favour of Worsley, and in my opinion it was open to the trial judge to draw the inference that, in effect, Worsley was put in funds to meet his second cheque paid into the Arts Centre account by money which by a circuitous route came originally from that account.
At the trial the prosecution’s case was that on the above evidence there was a misappropriation of the amounts of K4,500 for the tradestore and the payment to Worsley of K9,500, and that the appellant must have used the remaining balance for purposes of his own, and thus stolen altogether the sum of K15,000.
But I should point out that the assets of the tradestore which were purchased, in effect, from the Council grant, were from the beginning treated as the property of the K.V.D.C. or the Kabisawali Movement, and so far as the remainder of the money is concerned, the prosecution conceded in this Court that there was no evidence that the appellant enriched himself in any way.
The prosecution also set out to prove that no moneys were spent by the appellant on any of the items for which he had submitted a detailed estimate in relation to the establishment of the Arts School, considered as buildings and premises. This was the purpose, the prosecution submitted, for which the payment of K15,000 had been received by the appellant. His Honour’s finding was that after taking into consideration the small amounts apparently spent upon the construction of buildings — they were almost entirely of local material — for which the village workmen were unpaid so far as cash is concerned, airfares and maintenance of students, and also other items, such as copper beatings, that were apparently unpaid for, little or no money was spent on the Sopi Arts Centre.
The appellant’s defence was that the grant had been made on the basis of the Sopi paper, that the grant was not confined to the erection of buildings but was to embrace the whole field of Trobriand art and culture, that the grant had been spent on activities of this nature, that the tradestore was purchased as a reward for the villagers for the work they had done and services rendered in the construction of the Arts Centre, and that the cheque for K9,500 was given to Worsley in order to enable him to finance the activities of the Arts Centre.
The trial judge took the view that the grant was made on the basis of the detailed cost estimate submitted by the appellant, but that even on the assumption that the grant of K15,000 was made solely on the basis of the Sopi paper, the sworn evidence showed clearly that little or no money was spent on the activities of the Sopi Arts Centre. Having regard to this evidence, he did not believe the appellant’s statement from the dock that he spent large sums of money, drawn in many cheques from various accounts, on the Arts Centre and its activities. The trial judge considered that the purchase of the tradestore was clearly outside the purpose of the grant, he rejected the appellant’s argument that it was a reward for the villagers and justified by its usefulness for transferring through its bank account funds to the mainland, and that, having regard to his concealment of the transaction from the Council, there was evidence of a fraudulent intention on his part. Similar findings were made in relation to the payment to Worsley. It will be noted that having found that the grant was made, to use the trial judge’s words, on the basis of the detailed estimate or indeed of the Sopi paper, it was assumed that the inference was justified that there was a direction that the money was to be applied to the purpose so specified. Indeed the same assumption was made in Mr. Ryan’s submission to this Court.
WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE CHARGE OF STEALING?
In this Court the argument proceeded upon grounds that were not argued before the trial judge. I have dealt with the main submissions of counsel, upon which, in my opinion, the case can be decided. It is convenient to refer first to the respondent’s alternative argument under s. 391, that the appellant was guilty of stealing at least the sum of K4,500. This argument fails for two reasons.
The first reason, briefly, is that the property in the cheque was transferred from the Council. From the way the cheque was drawn, and the extended period over which the money was obviously to be spent, it is clear that the cheque and the money were intended to be passed to the appellant. It thus became his money, upon the basis, it is true, that a corresponding amount was to be spent upon the establishment of the Sopi Arts School; but as such it was incapable of being stolen by the appellant.
Turning to the second reason, the respondent sought to narrow down the trial judge’s findings as to the terms of the direction and confine it to a direction that K15,000 was to be spent on buildings. This was based on the estimates for the buildings amounting in total to K14,900, but that argument does not take into account items for scholarships and administrative costs. However, in my opinion, the trial judge was justified in finding that the purchase of the tradestore was clearly outside the purposes of the grant, even if extended generally to the establishment of the school, and from that fact together with the appellant’s failure, in all the circumstances, to disclose the transaction to the Council, it was open to him to find that there was an intent to defraud. (This was sufficient to exclude the defence of an honest claim of right under s. 22 of the Code). It was then argued that there was under s. 391 a fraudulent conversion of the cheque itself which was constituted by the payment of it into the Sopi Arts Centre account. There was a sufficient physical act to support such a dealing, it was argued, in that the cheque was paid in either by the appellant or by means of his servants or agents. But the onus was on the prosecution to prove each element of the charge of stealing, and there is no evidence that the appellant ever handled the cheque or did any physical act or gave any directions in relation to it, or, as I have said, that the person who paid it into the account was his servant or agent. There was accordingly nothing to satisfy the Court beyond reasonable doubt that any act of stealing was completed, as s. 391(6) requires, by the appellant.
Accordingly the prosecution had to bring the case under s. 393. The first element to be proved was that the money had been received by the appellant with a direction that it should be applied to a purpose specified in the direction. I shall assume that payment into the Sopi Arts Centre bank account constituted a receipt by the appellant. A direction given after the receipt of the money would be outside the section. It is true that the section seems to contemplate a receipt accompanied by a direction perhaps to ensure certainty in its application. It does not say money received “following” a direction. But a prior direction is not excluded. I consider that it is sufficient if the receipt is identified with an earlier directon.
The decision of the Council which was no more than the approval of a grant to the appellant, took place more than two months prior to the receipt of the money. There was clearly no express direction. The fact that the grant was conditional on a breakdown of costs being supplied, did not itself prevent a sufficient direction being implied from the circumstances. It is difficult to find any later relevant circumstances other than the submission by the appellant of the cost breakdown, the apparent acceptance of it by the Council, and the despatch of the cheque a month later. There was no legal relationship between the Council and the appellant such as assisted the Court to find a direction in the case of Christian[ccl]23. The facts, in my opinion, do not justify any more than an inference that the money was granted for the purpose of the establishment of the Sopi Arts Centre, and upon the understanding or indeed undertaking, that it should be so applied. Something more than that is required otherwise no effect is given to the express requirement of a direction. Accordingly, in my opinion, there was not sufficient evidence for the Court to have found beyond reasonable doubt that the money was received by the appellant with a direction within the meaning of s. 393.
So far as the case under s. 393 is concerned the appeal should also succeed, in my opinion, as there was no evidence of an act of stealing and in particular no evidence that there was on the part of the appellant any physical act which would constitute an actual dealing with the money alleged to have been stolen. Mr. Ryan submitted a number of arguments in an endeavour to rebut the view of the law accepted in R. v. Jamieson[ccli]24. It was put that under s. 393 there can be a fraudulent conversion of the monies in the bank as the “proceeds” of the cheque, but that is not what the section provides, and the combined effect of ss. 391 and 393 is that there can be no stealing or fraudulent conversion unless the thing is capable of being stolen, an expression which does not include a chose in action in the form of money held in a bank account. Then it was said that Croton v. The Queen[cclii]25 was not a case of larceny by a bailee, but of simple larceny, an argument which fails also for the same reason.
Accordingly, it follows that once the money was paid into the bank it ceased to exist in the form of a thing capable of being stolen in the hands of the appellant, and there was substituted the right of the appellant as a customer to have his cheques honoured. This does not fall within the description of “money received in exchange”. There can in law be no theft of this right, nor is any physical act as required to constitute stealing possible in relation to it. The debiting of the cheque for the payment of Mrs. Holland which took place before the Council’s cheque came into existence plainly has no relevance to the offence of stealing, nor has the subsequent drawing of the cheque in favour of Worsley.
It is not necessary for this Court to decide the other submissions put by Mr. Adams. For the reasons I have stated, in my opinion the appeal should be allowed, and the conviction set aside.
I wish to add this observation. The appeal has succeeded because the elements of stealing were not proved. It may be thought that the relevant chapter of the Code, which has remained unchanged for 70 years, should be amended to include the wider offence of misappropriation, which has been adopted elsewhere.
WILLIAMS J: The facts surrounding this matter are fully set out in the judgment of the Chief Justice, which I have had the advantage of reading in draft form, and there is no need for me to repeat them.
The case made for the respondent is that the appellant received from the National Cultural Council money in the form of a cheque with specific directions as to how it was to be spent and that it was in the contemplation of both the Council and the appellant that the cheque would be negotiated and the proceeds used progressively over a period of time to effect the appellant’s building programme at Kiriwina. However, it is said that the appellant misappropriated the proceeds of the cheque by using them not for the purchase of the building programme at Kiriwina but for other purposes outside the terms of the direction.
On the primary case put for the respondent a case of stealing could not be made out against the appellant by reference to s. 391 of the Criminal Code (Queensland adopted) alone. It was necessary also to call in aid the provisions of s. 393. A threshold question thus arises as to the application (if any) of the provisions of s. 393 to the circumstances of this case.
It is contended for the respondent that the relationship between the National Cultural Council and the appellant was that of bailor and bailee and that this was a case of larceny by a bailee not of the cheque received from the Council but of the proceeds into which the cheque was converted.
It is necessary first to consider whether the legal relationships between the Council and the appellant were that of bailor and bailee. It was said in the judgment of the High Court of Australia in Slattery v. The King[ccliii]26 that there are three elements in a bailment, namely that a specific thing is delivered, the thing delivered remains the property of the bailor or at least does not become the property of the bailee and that the thing itself or something for which it has been exchanged under the contract of bailment is to be restored or delivered. In R. v. Ward[ccliv]27 Jordan C.J. put the matter succinctly as follows:
“In order that this offence (larceny by a bailee) may be committed it is essential that there should have been an actual bailment of a chattel and a misappropriation of the chattel or of something into or for which it has been converted or exchanged. At common law, a chattel is bailed if it is delivered on the terms that it is to remain the property of the bailor but it is to be returned or delivered on his account.”
Turning to the facts of the present case can it be said that there is any evidence to show or from which it may properly be inferred that property in the cheque or its proceeds was to remain in the Council? I think not. Rather I think that it was clearly in the contemplation of the parties that property in the cheque and its equivalent money value should pass to the appellant but who was then under an obligation to expend the moneys from time to time for the purposes of the Sopi Arts Centre. It was not contemplated that the money or anything in its stead be returned to the Council or delivered on account of the Council. In consequence I do not consider that the relationship of bailor and bailee existed between the parties.
The cheque for K15,000 was voluntarily paid by the Council to the credit of a bank account nominated by the appellant. Property in the cheque passed from the Council. But it is said for the respondent that he fraudulently converted the proceeds of the cheque by applying them to purposes outside the terms of the direction and that the provisions of s. 393 may be applied in aid of the State case.
The construction of s. 393 presents difficulties. It is necessary, I think, to consider the history of the development of the law relating to larceny and kindred offences in an endeavour to ascertain the kind of situation to which the section is directed.
To prove larceny under the common law it was first necessary that the charge have reference to some specific thing. It was also necessary to establish that the thing said to be stolen was the property of the prosecutor. Further, it was necessary to prove what was called a taking and carrying away from the prosecutor or from someone whose possession was the possession of the prosecutor. Any defect in this proof was fatal to the charge. A result of these rules was that a person entrusted with property to hold for another who converted that property to his own use could not be charged with larceny because he did not wrongfully take it away having had it lawfully in his possession (Slattery v. The King[cclv]28). To overcome this situation the statutory offence of fraudulent conversion was created. Under the Criminal Code of Queensland the device was employed of incorporating fraudulent conversion in the definition of stealing.
There were further difficulties in cases relating to bailment. Questions arose as to whether under the contract of bailment the bailee contracted to restore the thing originally bailed or whether his obligation was to deal with or dispose of the thing bailed and to account for property obtained in substitution for it or the proceeds of sale thereof to the bailor. This is a question of fact to be determined in a particular case (see Slattery v. The King[cclvi]29 and R. v. Ward[cclvii]30). If under the bailment the bailee’s obligation was to deal with the thing bailed and to account to the bailor and he misappropriated the substituted property or the proceeds of the sale of it a question then arose as to whether the ownership of the substituted property or proceeds lay in the bailor or the bailee. It was, of course, necessary in a charge of larceny by a bailee to allege and prove ownership of the property alleged to be stolen.
This problem is discussed by Professor Howard in his work Australian Criminal Law, 2nd ed., at p. 190. There it is said:
“The rule that D commits larceny as a bailee only if he misappropriates the property actually bailed to him creates difficulty where D deals with the property entrusted to him in the manner contemplated by V but misapplies property into which it has been converted under the terms of the bailment, for although V’s instructions may include the disposal of the proceeds of the object bailed, D may be able to argue on the facts that there was no bailment by V of the proceeds. An example would be the giving by V to D of a cheque which D is to cash as a preliminary to paying a debt owed by V to a third party. If D misappropriates the cash he may be able to argue that V bailed only the cheque.
This difficulty has been overcome by statute in all states but the effect of the legislation is not uniform. In Queensland and Western Australia the effect is to extend the general definition of stealing, which includes fraudulent conversion, to the proceeds of property converted under a bailment by treating V as the owner of the proceeds to the same extent as he was of the property originally bailed. In New South Wales the definition of larceny as a bailee is amended to include misappropriation of the proceeds of the property bailed.”
In the footnote to the last paragraph quoted the learned author refers to ss. 391, 393 and 394 of the Queensland Criminal Code.
Section 394 uses the words “such money and proceeds are deemed to be the property of”. It is to be noted that the word “money” is used in the section in three places before the phrase which I have quoted. In two of these places the word relates to the original money and in the third to money received in exchange for it. The question arises as which use of the word “money” does the word “such” in the phrase quoted govern. It is also to be noted that in the phrase quoted the words “such money” are linked with the word “proceeds”. It seems to me that the word “proceeds” clearly refers to the proceeds of a valuable security etc. and, in this respect, the deeming provision operates only in relation to the substituted property. There does not appear to me to be any good reason why legislature intended that the deeming provision should operate in one way with respect to money and in another way in relation to a valuable security, etc. This consideration leads me to the view that “such money” refers to money in the second sense referred to earlier, that is, money received in exchange for the original money. To so construe the words “such money” would achieve consistency between the case of a delivery of money and that of a valuable security.
Reference might also be made to s. 394 which covers the case of a chattel received from another. Under that section the deemed ownership is expressed in plain terms to relate to the proceeds of the property originally handed over or something received in exchange for it and not to the original property. The provision I think reinforces the view that the legislative pattern in ss. 391 and 393 is to deem ownership in the original owner of money received in exchange for money originally handed over or the proceeds of or things substituted for that originally handed over.
On this construction of s. 393 it remains to consider the reason underlying the enactment of the section. It seems to me that the effect was, as stated by Professor Howard in the passage from his work earlier quoted, to extend the definition of stealing, which includes a fraudulent conversion, to the proceeds of property converted under a bailment by treating the bailor as the owner of the proceeds to the same extent as he was of the property originally bailed. I have already expressed the view that, in the present case, there was no bailment of the original amount paid over and that ownership of it passed from the Council.
Reference might here again be made to Slattery v. The King[cclviii]31 at p. 560 where it is said:
“In that sense it relates only to the ownership of the substituted article, and in that respect alters the third condition or element referred to by Mr. Lamb and Mr. Hamilton, that the thing, or some specific thing into which the thing bailed has been converted or exchanged under the terms of the bailment, is to be returned to or applied under the directions of the bailor. It becomes no longer material to consider whether the thing into or for which the original article was converted or exchanged was so converted or exchanged under the terms of the contract or not. But in all other respects the Statute leaves the law unaltered. An essential condition in all cases is that the thing first delivered remained the general property of the bailor. So that really the section has no application to such a case as the present.” (Emphasis mine.)
These observations, directed to s. 125 of the Crimes Act of New South Wales are, in my view, applicable to the provision of s. 393 of the Criminal Code.
In consequence I conclude that, the primary argument put for the respondent, that in the circumstances of this case s. 393 might be called in aid of s. 391 must fail. I do not think that any assistance may be obtained from the case of In re a Solicitor[cclix]32. The full facts are not contained in the report of that case. It may well have been that a bailor/ bailee relationship existed between the parties.
As I understand it the considerations to which I have adverted were not raised before the learned trial judge. It is unfortunate that they were not in a case which occupied several weeks.
As I have said earlier, the primary contention of the State was that the conviction was sustainable by virtue of the operation of ss. 391 and 393 taken together. An alternative submission was that the conviction was sustainable under s. 391 alone to the extent of the money involved in the tradestore transaction. It was said that the payment of K15,000.00 made by the Council was made on the representations of the appellant (including detailed building plans) that he would use the money for the erection of buildings for the Sopi Arts Centre. However, shortly after the Council’s decision to make the grant he obtained a letter from the Council and used this letter with the bank to procure an overdraft for the purchase of the tradestore a matter not revealed by the appellant to the Council or within its contemplation when it made the grant. The cheque was deposited to the overdrawn account and the overdraft wiped out leaving the account in credit. It was submitted that the appellant fraudulently converted the cheque itself by depositing it in the circumstances stated.
The appellant by a letter dated 28th May, 1975, requested the Council that the grant moneys be paid to the Bank of South Pacific Ltd., Port Moresby branch, for the account of Sopi Arts Centre. There is in evidence a bank deposit slip which shows that a cheque for K15,000.00 was credited to the account of Sopi Arts Centre on 15th July, 1975. The deposit slip appears to have been signed by one Burrows as the person paying in the cheque. The identity of the person called Burrows is not revealed by the evidence. There is no evidence to show that that person was a servant or agent of the appellant.
Section 391(6) provides that the act of stealing is not complete until the person taking or converting the thing moves it or otherwise deals with it by some physical act. It does not seem to me that there is any evidence that either the appellant or his agent moved the thing that is, the piece of paper represented by the cheque or otherwise physically dealt with that thing. I think that the alternative contention advanced for the respondent must also fail.
I have reached my conclusions on strictly legal considerations. A number of other issues were raised in this appeal but having regard to the view I have stated I do not think it necessary to advert to them. I would not, however, wish it to be inferred that I disagree with the findings made by the learned trial judge concerning the appellant’s intent in the matter. Indeed I think these findings were well open to him on the evidence.
KEARNEY J: The main questions in this appeal concern the proper construction of the Code provisions on stealing, particularly s. 393. I have had the advantage of reading the judgment of the Chief Justice, which sets out the facts and circumstances which give rise to these questions, and I need not restate them.
Both appellant and respondent have argued in terms of concepts and authorities of the common law. This approach is both useful and necessary as Chapter XXXVI of the Code clearly bears the adze-marks of its hewing from the common law. But the following must be kept firmly in mind:
“The correct approach to the interpretation of a section of the Code is that stated by Dixon and Evatt JJ. in Brennan v. The King (1936) 55 C.L.R. 253 at p. 263, as follows: ‘... it forms part of a code intended to replace the common law, and its language should be construed accordingly to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.’ This passage does not mean that it is never necessary to resort to the common law for the purpose of aiding in the construction of the Code — it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground.... If the Code is thought of as ‘written on a palimpsest, with the old writing still discernible behind’ (to use the expressive metaphor of Windeyer J. in Vallance v. The Queen (1961) C.L.R. 56 at p. 76), it should be remembered that the first duty of the interpreter of its provisions is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance.”[cclx]33
The “palimpsest” character of the Code is particularly evident in Chapter XXXVI; it is difficult to comprehend its structure or construe it as a consistent whole without an examination of the history of the common law of theft and its various statutory modifications. To these I now turn.
The common law of theft is not pellucid. Nearly 100 years ago Stephen wrote of it:
“No branch of the law is more intricate, and few are more technical.”[cclxi]34
More recent writers are equally critical:
“... an antediluvian harvesting machine designed by a maniac for detail, constructed upon a lunatic principle.”[cclxii]35
The essentials of the common law offence of larceny were fixed over 600 years ago: there must be a “taking” and “carrying away” of a chattel from the person in possession, with an intent to deprive him permanently of it.
The requirement of “taking” is retained in the definition of stealing in s. 391(1); while “carrying away” is clearly linked with “moveability”, which concept appears in s. 391(6), and also in s. 390 as a necessary quality of a thing capable of being stolen. The common law mens rea — intent to permanently deprive — appears in s. 391(2)(a) as one manifestation of the fraudulent intent required under the Code. The trespass to possession which lay at the root of the common law concept of theft, is reflected in the definition of “owner” in s. 391(6).
Since “taking” connotes a physical seizing it followed logically that a bailee of chattels — who acquired possession by consent — could not “take”, and so could not steal. For a bailee to be beyond the reach of the law of theft was clearly unsatisfactory, and various attempts were made by the common lawyers to overcome the problem, with limited success. Ad hoc statutes were passed over the years, but, surprisingly, not until 1857 was it provided by a general statute that if a bailee “fraudulently converted” property bailed to him this was equivalent to theft[cclxiii]36.
The concept of “fraudulent conversion” appears as one mode of stealing, in s. 391(1). Three aspects may be noted: it is not limited to, although it includes, conversion by bailees; it does not extend, in its terms, to proceeds of a thing bailed; and it has no application where both possession and property are obtained with the consent of the owner.
I agree, with respect, with the views of the Chief Justice on what is meant in. s. 391 by “conversion”. There need not be that which would be required to constitute the tort of conversion, before there can be a “conversion” for the purposes of s. 391; for example, the reasoning in R. v. Bonner[cclxiv]37, a case under the Theft Act 1968 (U.K.), would apply to a charge of stealing partnership property under the Code.
A thing capable of being stolen, at common law, had to have some physical substance; accordingly, property rights which had no tangible subject matter — that is, choses in action — could not, as such, be stolen. This obvious defect in the law of theft was met in part only, by statute[cclxv]38, until eventually by the Theft Act 1968 (U.K.) choses in action as such were made capable of theft[cclxvi]39. A cheque has a dual nature; as a piece of paper it has physical substance, and it is regarded by the law as a chose in action. As a piece of paper it may have been capable of being stolen, at common law: R. v. Perry[cclxvii]40 or if, like other written instruments included in the definition of “valuable security” in the Larceny Act 1861, it lacked as such the minimal value required by the common law, it became larcenable by s. 27 of that Act[cclxviii]41. Though the mode of stealing be a conversion which involves a cashing of the cheque, it remains nevertheless the cheque itself and not its proceeds, which are stolen.
Mr. Ryan submitted that there had been a stealing, by conversion of the cheque of K15,000; this by way of an alternative argument, to sustain the conviction, as regards the stealing of the sum of K4,500. Mr. Adams submitted that when a cheque, as here, is ultimately returned to the drawer’s bankers for payment, it cannot be said to be converted. I consider that that contention, which has been aired over the years, is unsound, because a cheque, cancelled following payment by the drawer’s bankers, is as different to the cheque handed over, as a carcass is to the living beast; see the discussion in Russell[cclxix]42, and R. v. Bennitt[cclxx]43 and R. v. Duru[cclxxi]44 to the same effect.
I should mention R. v. Bennitt[cclxxii]45 in another context. In that case the accused had allegedly secured by false pretences a cheque for a larger amount than was due. The particulars of the charge, however, were that he had procured a sum of money, being the excess. On motion to quash, on the basis that what he had procured was a bank credit by means of a cheque, McGregor J. was of the opinion, obiter, that a bank credit or chose in action was not capable of being stolen under s. 238 of the Crimes Act[cclxxiii]46, being not an inanimate thing, but a right.
It is noteworthy, in that case, that the particulars having been held to be defective, because the offence would be complete on delivery of the cheque, the Crown sought successfully to amend, so as to allege the procuring of the cheque.
The inadequacies of the common law in dealing with the different varieties of dishonest appropriation of the property of another, led to much piecemeal legislation. Amongst these were statutes dealing with various cases where property was acquired with an obligation that it be dealt with in a particular way. These are the early ancestors of ss. 393, 394 and 395.
The lineal ancestor of s. 393 was the statute which was the genesis of the offence which became known in other jurisdictions as theft by fraudulent conversion or fraudulent misappropriation, the Bankers Embezzlement Act of 1812[cclxxiv]47, passed as a result of the decision in R. v. Walsh[cclxxv]48. Walsh was a stockbroker who received a cheque, with a direction to invest it in Exchequer bills; he paid the cheque into his bank, drew out the proceeds in bank notes, and applied some of them to his own use. He was charged with larceny of the cheque, and of the banknotes, and acquitted upon both counts. The Act made it an offence for a banker etc. who had received sums of money, cheques etc. with an order in writing “to invest such sum or sums of money, or the money to which such bill, note, draft, check (sic) or order as aforesaid shall relate, for any purposes specified in such order ...”, to apply to his own use any such sum of money or cheque etc., with intent to defraud.[cclxxvi]49
By subsequent Acts of 1827, 1861 and 1901 and 1916[cclxxvii]50 the law on this subject received its modern form as one type of the offence of fraudulent conversion. Although the wording is quite different, I consider that the object sought to be achieved by the various legislatures, in enacting provisions of this type, is the same. Stephen puts it this way:
“a man may frequently be entrusted with money which he has a right to deal with in a variety of ways, as, for instance, by changing it for other money by paying it into a bank, by investing it in the funds, etc., but which he is not entitled to treat as a mere debt due to his principal. For instance, A pays his solicitor, B, money with a direction to invest it for him when a suitable occasion occurs. A does not mean by this to prevent B from paying it into the bank, from investing it in Exchequer bills, or even from putting it into the funds, but he does mean that that money, or its equivalent, shall be forthcoming for the purpose of investment when required, and shall not be treated by B as a mere debt due to A. If B appropriates the money to his own purposes and deceives A by paying the interest, pretending to have invested it, B would usually and properly be regarded as a thief.”[cclxxviii]51
As to the Code provision, the effect is set out very clearly by Wickham J. in Orsi v. Legal Contribution Trust[cclxxix]52:
“Fraudulent conversion by a bailee where the property had not passed to him was by statute subsumed under the cognate offence of stealing, but clearly there could not be a fraudulent conversion if the property had passed and that case and the case of various dishonest fiduciaries including that of a person receiving a thing (whether goods, security or specie) with a direction that the thing or the proceeds of it be used for an express purpose fell to be dealt with in other ways. The course generally adopted was to create a separate offence as for example, in Queensland before the Code, in s. 80 of 29 Vic. No. 6 and in New South Wales by s. 178a of the Crimes Act 1900 and in Western Australia by s. 75 of the Larceny Act 24 and 25 Vict. c. 96 adopted by 29 Vic. c. 5. The position in that respect is fully explained by Jordan C.J. in R. v. Ward (1938) 38 S.R. (N.S.W.) 308 at p. 316.
Sir Samuel Griffith, however, in drafting the Code adopted a different approach and in doing so anticipated the ideas now revealed in the English Theft Act 1968. Instead of adopting the older devices or following the English Draft Code of 1879 (which never became law), and which provided that dishonest dealing with funds held under direction or received by agents, should be deemed to be theft, he preferred the course of declaring that property held under such circumstances should be deemed to be the property of the person beneficially entitled to it and thus by statute creating a situation where an act of fraudulent conversion would fall within the general statutory definitions of stealing; see xiii of Sir Samuel’s explanatory letter to the Attorney-General of 29th October, 1897. This was achieved by sections of which the equivalent in the Western Australian Code are ss. 373, 374 and 375 (Queensland Code, ss. 393, 394 and 395). In the equivalent of s. 393 the Royal Commission slightly amended Sir Samuel’s draft by inserting the words ‘or any other money received in exchange for it or any part thereof’.
That Sir Samuel’s objective had been achieved received judicial recognition by the Full Court of Queensland in the case of Re a Solicitor [1902] St. R. Qd. 9.”
Sir Samuel’s exact words in the letter mentioned by Wickham J. were as follows[cclxxx]53:
“In the Draft I have followed for the most part the proposals of the Commissioners of 1878, defining the offence of stealing (or, as they call it, theft) in such a manner as to include all cases of fraudulent conversion of moveable property, and then prescribing the different punishments to be awarded in different cases.
In some particulars, however, I have departed from their draft, especially with respect to the case of the fraudulent conversion of funds held under direction or received by agents for sale.
The draft Code of 1879, after defining theft in such a way as not to include this misconduct, went on to declare that it should be deemed to be theft. I have preferred to declare that property held under such circumstances shall be deemed to be the property of the person beneficially entitled to it. A fraudulent conversion of the property then falls within the general definition of stealing.”
Undoubtedly, the wording of s. 393 gives rise to difficulties. The approach to its interpretation is now laid down by the Constitution; it is to receive “such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit”[cclxxxi]54.
This constitutional imperative does not distinguish between penal and non-penal laws. In the search for “true intent”, the palimpsest must be read.
The Chief Justice has discussed the question whether s. 393 contemplates only a bailment of the three categories of property with which it deals, and is directed only to the imposition of criminal liability in respect of the proceeds of the property bailed. I respectfully agree that money received with the requisite direction is deemed property within s. 393, although the property in it has passed to the receiver. It is quite clear, in the present case, that the property in the cheque passed.
It is unnecessary to go further on this aspect as I think that a cheque is clearly “money” rather than a “valuable security” for the purposes of s. 393; see the definition of “money” in s. 1. I would not wish to be taken to be of the view that, as regards the other two categories of property, s. 393 contemplates a situation of bailment only.
In the present case, the “money” received was in the form of a cheque, which was paid into a bank, the amount thereof being credited to the Sopi Arts Centre current account. The question arises, whether the phrase “any other money received in exchange for it”, in s. 393, comprehends a credit in a bank account. I consider it does, for the following reasons.
“Money” is defined in an inclusive manner in s. 1. The word “includes” usually involves an enlargement of meaning, so that the term is to be construed as comprehending not only such things as it signifies according to its natural import, but also the things which it is declared to include. That is the effect, I think, of the definition of “money” in s. 1; I see no reason to read “includes” as, “means and includes”.
It is a popular misconception that when a person deposits money in a bank, he then has “money in the bank”. What he has, in contemplation of the law, is a chose in action, for it is clear law and fundamental to the conduct of banking business, that the relationship between banker and customer, though essentially contractual, is that of debtor and creditor. Money deposited becomes the property of the banker — debtor; the customer — creditor has a chose in action, represented by his credit in the bank’s account with him.
But I see no reason why the fact that the credit at the bank is at law characterized as a chose in action, thereby excludes it from being “money”, in s. 393. “Money” is used in various senses in the law. Undoubtedly, in the understanding of the ordinary man, the amount of his credit at a bank would be regarded as “money”. And the law conceives that “money” may be of that character; see the discussion of the meaning of “money” in In re Diplock[cclxxxii]55. Further, money can be traced through a bank account; see Banque Belge v. Hambrouck[cclxxxiii]56.
The effect of s. 393 is that the bank credit is deemed as against the receiver to be the property of the person from whom the original money was received. This has no effect, as I see it, on the law of banking; but it may operate so as to expose the customer to criminal liability under s. 391, should he fail to comply with the direction and fraudulently convert the amount of the credit to his own use.
Whether or not this is so, depends upon whether money in s. 393, constituted by a bank credit, is comprehended by the words “anything capable of being stolen”, in s. 391. Of course a bank credit would not have been capable of being stolen at common law; but here the question is the interpretation of provisions of the Code, and, in particular, whether the words “anything capable of being stolen” in s. 391, are exhaustively defined in s. 390. It appears to me, bearing in mind the history of the provisions within Chapter XXXVI, and its structure, that this is not so; and that the “money and proceeds” referred to in s. 393 do not have to meet the requirements of s. 390 before they are capable of being stolen, under s. 391. To my mind the money and proceeds referred to in ss. 393, 394 and 395 form a special category of property capable of being stolen, in addition to that defined by s. 390.
I draw some limited support for this view from R. v. Tennent[cclxxxiv]57. There a parallel question arose, in relation to provisions which were similar in wording and intention to those in the Code, but where the drafting technique adopted was quite different, the equivalent to Code s. 393 being drafted as a substantive offence in itself. Accordingly the actual decision is inapplicable to the Code, but the rationale — that there was “created a special kind of theft and any person who is shown to have acted in breach of that section is guilty of theft, and it is not necessary for recourse to be had to the requirements of any other section”[cclxxxv]58 — is applicable to s. 393 so far as concerns provisions other than s. 391.
I agree, with respect, with the views of the Chief Justice on the nature and meaning of “direction”, in s. 393; and on the facts of the case.
I turn now to the matters argued on appeal.
The appellant submitted that the Sopi Arts Centre account was in fact an account of the K.V.D.C., and the learned trial judge had erred by failing to distinguish between the corporate body and the appellant. I consider that a reading of the judgment makes it clear there is no substance in this point.
The appellant, being out of time, was unable to argue grounds involving only questions of fact. Mr. Adams ingeniously contended that, as an appeal is to be allowed if the verdict below is considered “unsafe or unsatisfactory”, this in itself permits questions of fact to be raised. However, I think this submission lacks merit; failure to obtain leave to appeal on pure questions of fact, means that those issues as decided constitute “circumstances of the case”, for the purpose of s. 22(1)(a) of the Supreme Court Act 1975.
As to the alternative argument advanced by the respondent — that the cheque of K15,000 had been fraudulently converted — I consider that this fails for lack of adequate proof that the appellant had actually dealt with the cheque by some physical act, as required by s. 391(6).
On the question of the “direction”, I consider that in the context of the relationship and the nature of the dealings between the appellant and the Council, there was ample evidence to justify the finding by the learned trial judge, who carefully directed himself to this issue, that there was a tacit direction that the money was to be applied to the physical construction of the Sopi Arts Centre.
As to finding that the appellant had stolen the sum of K4,500, I consider that the examination of the law upon this appeal with which the learned trial judge was not favoured, indicates that the trial in this respect had proceeded on the wrong basis, and the finding cannot be sustained. The relevance of the payment of K4,500 for the tradestore, as it now appears, is as an element in the case which the respondent put as his alternative argument upon this appeal, which I have dealt with above.
As to the finding that the appellant had stolen the sum of K9,500, constituted by the credit to the Sopi Arts Centre account at the bank, I consider that there was ample evidence to warrant the finding of guilt. The necessary physical dealing with the account by the appellant, by way of cheque, was amply proved. There could be no question that defences under either s. 22 or 24 were open and not considered, in view of the finding, based on ample evidence, of intent to defraud.
Accordingly, I would dismiss the appeal, on the basis that the appellant was rightfully convicted of stealing money to the value of K9,500.
Appeal allowed: conviction quashed and appellant discharged.
Solicitor for the appellant: L. Keith Young & Associates.
Solicitor for the respondent: K. B. Egan, Public Prosecutor.

[ccxxviii]Section 393 (379) provides: Funds, etc. held under direction. — When a person receives, either alone or jointly with another person, any money or valuable security, or a power of attorney for the sale, mortgage, pledge or other disposition, of any property, whether capable of being stolen or not, with a direction in either case that such money or any part thereof, or any other money received in exchange for it, or any part thereof, or the proceeds or any part of the proceeds of such security, or of such mortgage, pledge, or other disposition, shall be applied to any purpose or paid to any person specified in the direction, such money and proceeds are deemed to be the property of the person from whom, the money, security, or power of attorney, was received until the direction has been complied with.
[ccxxix]Section 391(1) (s. 377(1)) provides: A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.
[ccxxx]Section 391(6) (s. 377(6)) provides: The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise deals with it by some physical act.
[ccxxxi](1905) 2 C.L.R. 546.
[ccxxxii](1938) 38 S.R. (N.S.W.) 308.
[ccxxxiii](1938) 38 S.R. (N.S.W.) 308.
[ccxxxiv](1938) 38 S.R. (N.S.W.) 308.
[ccxxxv][1963] Qd. R. 508.
[ccxxxvi][1960] 2 Q.B. 244.
[ccxxxvii][1960] 2 Q.B. 244.
[ccxxxviii][1954] 1 W.L.R. 569.
[ccxxxix](1967) 117 C.L.R. 326.
[ccxl][1975] P.N.G.L.R. 216.
[ccxli][1962] Qd. R. 214.
[ccxlii](1928) 22 Q.J.P.R. 125 at p. 135.
[ccxliii][1963] Qd. R. 508.
[ccxliv][1902] St. R. Qd. 9.
[ccxlv](1967) 117 C.L.R. 326.
[ccxlvi][1964] V.R. 717 at p. 725.
[ccxlvii][1873] L.R. II, C.C.R. 94.
[ccxlviii][1976] W.A.R. 74.
[ccxlix](1967) 117 C.L.R. 326.
[ccl](1873) L.R. II, C.C.R. 94.
[ccli][1975] P.N.G.L.R. 216.
[cclii](1967) 117 C.L.R. 326.
[ccliii](1905) 2 C.L.R. 546 at p. 557.
[ccliv](1938) 38 S.R. (N.S.W.) 308 at p. 314.
[cclv](1905) 2 C.L.R. 546 at pp. 554, 555.
[cclvi](1905) 2 C.L.R. 546.
[cclvii](1938) 38 S.R. (N.S.W.) 308.
[cclviii](1905) 2 C.L.R. 546 at p. 560.
[cclix][1902] St. R. Qd. 9.
[cclx]Stuart v. The Queen (1974) 48 A.L.J.R. 517 at p. 521, per Gibbs J.
[cclxi]Stephen: A History of the Criminal Law of England, III 122 (1883).
[cclxii]Elliott: Ten years of Larceny and Such 1954-1963 (1964) Crim. L.R. 182.
[cclxiii]20 and 21 Vict. c. 54, s. 4; by s. 17 “property” was defined in wide terms, and included money and proceeds.
[cclxiv][1970] 2 All E.R. 97 at p. 98.
[cclxv](1827) 7 and 8 George IV, c. 29, s. 5; the Larceny Act 1861, 24 and 25 Vict. c. 96, s. 27 which provided for the stealing of valuable securities; The Larceny Act 1916, 6 and 7 George V, c. 50, s. 2.
[cclxvi]1968, c. 60, ss. 1 (1) and 4 (1).
[cclxvii](1845) 1 Den. 69; 169 E.R. 154.
[cclxviii]S. 4 dealt with larceny by a bailee and distinguishes between chattels, money and valuable securities.
[cclxix]Russell on Crime, 10th ed. (J. W. C. Turner, 1950), at p. 1279.
[cclxx][1961] N.Z.L.R. 452.
[cclxxi][1973] All E.R. 715 at p. 720.
[cclxxii][1961] N.Z.L.R. 452.
[cclxxiii]Similar in terms to s. 390 of the Code.
[cclxxiv]51 George III, c. 63.
[cclxxv](1812) 4 Taunt. 258; 128 E.R. 328; 2 Leach 1054, 168 E.R. 624; Russ and Ry. 215, 168 E.R. 767. The reasons for decision appear only in the report by Russell and Ryan, at p. 220.
[cclxxvi]Parts of the statute are set out at 168 E.R. 637 and 770.
[cclxxvii]7 and 8 George IV, c. 29. s. 49; 24 and 25 Vict. c. 96, s. 75; I Edw. 7, c. 10, s. 1 (1) (a); and 6 and 7 George V, c. 50, s. 20 (1) (iv) (a).
[cclxxviii]A History of the Criminal Law of England, III, 164 (1883).
[cclxxix][1976] W.A.R. 74 at pp. 78, 79.
[cclxxx]The letter appears as the Introduction in Wilson and Graham; The Criminal Code of Queensland. The extract quoted is at p. XVII.
[cclxxxi]Constitution, s. 109 (4).
[cclxxxii][1948] 1 Ch. 465 at pp. 521-3.
[cclxxxiii][1921] 1 K. B. 321.
[cclxxxiv][1962] N.Z.L.R. 428.
[cclxxxv][1962] N.Z.L.R. 428, at p. 431.