Foster v The Queen [1967] HCA 8

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Menzies JJ. Foster v The Queen [1967] HCA 8

ORDER Leave to appeal granted. Appeal allowed. Verdict, conviction and sentence set aside. Order new trial.

Cur. adv. vult.

The following written judgments were delivered:—

April 20 Barwick C.J.

The applicant for leave to appeal was convicted in Canberra on 2nd March last of having had in his possession, without lawful excuse, a gun which had been stolen in New South Wales, well knowing the same to have been stolen: s. 189A of the Crimes Ordinance 1951 of the Australian Capital Territory. The principal ground on which he desires to appeal is that the learned trial judge did not properly instruct the jury as to the elements of larceny.

It appeared from the evidence that the applicant had been staying in Goulburn, New South Wales, with a man named Baker who was employed as a watchman. Baker, for the purposes of that employment, had a Smith and Wesson .32 pistol for the possession of which he held the necessary licence. The applicant's parents lived in Canberra. On 28th December 1966 the applicant went to Canberra, having announced to Baker's wife his intention of so doing. He removed Baker's gun out of its holster which was on a mantlepiece in the hallway of Baker's house and took it to his parents' home where he exhibited it to them.

When Baker that day found his gun missing, he immediately called in the police and later on the same day the applicant was interrogated and arrested in Canberra. He claimed both when interrogated and in the evidence which he gave at his trial that he was returning to Goulburn that same evening and intended to take the gun with him to replace it in Baker's possession, as had been his intention throughout.

The Crown at the trial submitted in substance that because of the terms of s. 118 of the Crimes Ordinance, it was not necessary in relation to the facts of the case to establish that the accused, at the time of the asportation of the gun, had an intention to deprive Baker permanently of the gun. In commending to the jury the legal propositions which the Crown Prosecutor had put before them, the trial judge added: "This is not really a charge of stealing but it is a charge that the accused without lawful excuse had in his possession stolen property, which property was stolen outside the Territory." Later, in his summing up, pointing to a conflict in evidence between Baker and the accused as to whether the accused had frequently gone with Baker on his watch keeping rounds and as to whether Baker had authorized the accused if occasion arose to use the gun, the trial judge said: "You might think that that would be an improbable thing for an older man to do: to give an authority like that to a man as young as the accused. You might have an opposite view to that. At any rate, you have seen both the witnesses and you are in the position of judges in this matter and have to make judgments about whether or not the persons who have appeared before you and have spoken to you are telling the truth. It really gets down to that in the long run. It still does not avoid the fact, of course, that the onus of proof is on the Crown and that you have to be satisfied beyond all reasonable doubt that the accused had this gun in his possession with intent to deprive the owner of the gun of the use of it. On the Crown case this is not a matter of borrowing a gun; this was a matter of taking a gun without permission, with intent to deprive the owner of possession."