Macleod v The Queen [2003] HCA 24

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, HAYNE AND CALLINAN JJ

ROBERT JAMES MACLEOD APPELLANT

AND

THE QUEEN RESPONDENT

Macleod v The Queen [2003] HCA 24

7 May 2003

S86/2002

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation:

P L G Brereton SC with J C Papayanni for the appellant (instructed by Jeffreys & Associates)

T A Game SC with D Jordan for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Macleod v The Queen

Criminal law – Property offence – Fraudulent application of company property by director or officer – Accused also sole beneficial shareholder of company – Whether consent of accused, as sole shareholder, cures what would otherwise be a breach by accused, as director or officer, of s 173, Crimes Act 1900 (NSW).

Criminal law – Property offence – Fraudulent application of company property by director or officer – Directions – Whether trial judge misdirected jury in failing to identify the use of dishonest means as an essential element of s 173, Crimes Act 1900 (NSW) – Whether trial judge erred in failing to direct that it was necessary for accused to have realised that his impugned conduct was dishonest by the current standards of ordinary, decent people.

Words and phrases – "fraudulently", "claim of right".

Crimes Act 1900 (NSW), ss 4(1), 173.

1. GLEESON CJ, GUMMOW AND HAYNE JJ. This appeal from the New South Wales Court of Criminal Appeal[1] concerns an offence created by State law which comprises the fraudulent taking or application, by a company director, officer or member, of property of the company, for the use or benefit of that person, or for any use or purpose other than the use or purpose of the company. Here, the sole beneficial shareholder of the company was the appellant. 2. At a trial in the District Court of New South Wales (Rummery DCJ, sitting with a jury), the appellant was convicted on 10 March 1999 of 18 counts on an indictment containing 25 counts. Five of the counts upon which the appellant was convicted charged contravention of s 173 of the Crimes Act 1900 (NSW) ("the Crimes Act"). They are the only charges which are the subject of the present appeal. 3. At the relevant time[2], s 173 of the Crimes Act provided: