Madden v Regina [2014] NSWCCA 291

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Madden v Regina [2014] NSWCCA 291 Hearing dates: 20 November 2014 Decision date: 20 November 2014 Before: Simpson J at[1] Price J at [1] McCallum J at [1] Decision: Publication of reserved reasons for refusing leave to appeal. Catchwords: CRIMINAL LAW - appeal - application for leave to appeal against decision refusing to quash part of indictment - statutory construction - whether a motorcycle is capable of being "property" within the meaning of s 193D Crimes Act - meaning of the phrase "other valuables" - whether confined to small items of personal property Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Confiscation of Proceedings of Crime Amendment Act 2005 Cases Cited: Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19 Category: Principal judgment Parties: Christopher Madden (appellant) Regina (respondent) Representation: Counsel: P Lange, A Martin (applicant) J Girdham SC (Crown) Solicitors: Hansons Lawyers (applicant) S Thompson - Office of the Director of Public Prosecutions (Crown) File Number(s): 2013/14782 Publication restriction: None Decision under appeal Jurisdiction: 9101 Date of Decision: 2014-07-14 00:00:00 Before: Syme DCJ File Number(s): 2013/14782

Judgment 1THE COURT: Christopher Madden was arraigned in the District Court on an indictment alleging two counts of dealing with property that subsequently became an instrument of crime, contrary to s 193D(1) of the Crimes Act 1900. By notice of motion filed 17 June 2014, an application was made to have the indictment permanently stayed. During the hearing of the motion, the application was varied orally so as to seek an order quashing count 2 on the basis that "it does not make out an offence known to law". 2The application was heard by Syme DCJ on 7 July 2014 and determined on 14 July 2014. Her Honour granted the application in respect of count 1 but dismissed the application to quash count 2. 3On 20 November 2014, the Court dismissed an application under s 5F(3)(a) of the Criminal Appeal Act 1912 for leave to appeal against that part of the judgment refusing the application, reserving our reasons. These are our reasons for refusing leave. 4Section 193D(1) of the Crimes Act provides: "If: (a) a person deals with property intending that the property will become an instrument of crime, and (b) the property subsequently becomes an instrument of crime, the person is guilty of an offence." The offence carries a maximum penalty of imprisonment for 15 years. "Property" is defined in s 193D(5) as follows: "Property" means money or other valuables. 5The charges against the applicant arose out of the shooting murder of Darko Janceski in April 2012. The Crown case is that the deceased was shot three times by a male riding a blue Yamaha motorcycle. Matthew Wiggins has been charged with the deceased's murder. 6The Crown alleges that the applicant purchased the motorcycle for use by Wiggins in the murder. The motorcycle was purchased with cash. The cash transaction was the subject of count 1 on the indictment, which is the count that has been permanently stayed by Judge Syme. The Crown has not challenged that part of her Honour's judgment. 7The Crown case in respect of count 2 is summarised in the Crown case statement as follows: "Further, on the 28 March 2012 or at some other time before the shooting (14 April 2012) the accused dealt with the motorcycle such that it came into the possession of Wiggins. At the time that the accused dealt with the motorcycle he intended that it would become an instrument of crime and it subsequently became an instrument of crime." 8The issue raised by the application for leave to appeal is whether a motorcycle is capable of being "property" within the meaning of s 193D ("money or other valuables"). Mr Lange, who appears for the applicant, noted that the expression "other valuables" is not defined in the legislation and is not the subject of any relevant authority. In that circumstance, he turned to the Oxford English Dictionary, which defines the word "valuable", when used as a noun, as follows: "A valuable article or thing; Esp. a small item of personal property. Usu. in pl." 9Mr Lange submitted that, as reflected in that dictionary definition, the term "valuables" is used in common parlance to mean "a small item of personal property". The burden of the submission was that a motorcycle is not capable of meeting the definition of "other valuables" because it is not a small item of personal property. 10Apart from resort to the dictionary, the applicant put forward two principal reasons for construing the term "valuables" in a narrower sense than contended for by the Crown. First, it was noted that, at the time s 193D was enacted, the different expression "valuable thing" was used in a number of offence provisions in the Crimes Act. For example, the offence of "obtaining money etc by deception" contrary to s 178BA(1) provided: "Whosever by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever shall be liable to imprisonment for five years." 11The offences of "being an agent obtaining advances on the property of a principal" contrary to s 170; "obtaining money etc by false or misleading statements" contrary to s 178BB and "obtaining money etc by wilfully false representation" contrary to s 527A similarly included the expression "valuable thing" (each of those sections has now been repealed but they were in force at the time s 193D came into force). Mr Lange submitted that the legislature must accordingly have intended, in deliberately choosing a different expression to define the term "property" in s 193D(5), that a different meaning should be given to that expression. 12Secondly, Mr Lange noted that the 2005 amendments (the Confiscation of Proceedings of Crime Amendment Act 2005) were passed against the background of cognate Commonwealth legislation. The offences in the Commonwealth Act are in similar terms but the definition of property is much broader. 13Section 400.1(2) of the Criminal Code (C'th)1995 defined property as meaning "real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property". Subsection (2) expanded this definition by providing, "To avoid doubt, a reference in this Division to money or other property includes a reference to financial instruments, cards and other objects that represent money or can be exchanged for money, whether or not they have intrinsic value." 14Mr Lange submitted that, since the New South Wales legislature did not adopt the Commonwealth approach, it may be inferred that the definition under the New South Wales Act was deliberately narrower. 15Finally, Mr Lange noted that, when construing a penal statute, any ambiguity must be resolved against the imposition of criminal liability: Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19 at 29 per Deane, Dawson and Gaudron JJ. 16Essentially the same arguments were put and rejected in the Court below. The judge said: "[23] The applicant submits that the restricted definition of property restricts the meaning that can be given to the phrase "money or other valuables". They also argue and point to the observation in Milne's case the Full Court observed that "purposive construction" does not justify expanding the scope of a criminal offence beyond its textual limits. [24] This is an appealing argument but requires an acceptance of the term "valuables" as being confined to a small item of personal property. While the dictionary definition includes this as an example in common usage, this is by way of example only, and nowhere is it suggested that there is a size limit on an item of value, only that an item is capable of being valued. This is demonstrably true of the motorbike in question. [25] I accept without question the observation of the High Court in Milne's case that in the absence of other assistance, interpretation of words should take into account the ordinary meaning of the words without resort to extended meanings. By the same token there should not be unnecessary and artificial restriction in the interpretation based on an antiquated understanding of language. If the legislature meant that valuables were confined to items of a particular size or weight or value they would have said so. No doubt they had this in mind when they decided to place a different definition on property when they drafted s 193." 17As correctly noted by her Honour, there is nothing in the legislation to suggest that the words of the section are to be read down so as to impose a size limit on the kind of item that may be the subject of a charge under s 193D. The difficulty with the applicant's argument is that, even if parliament intended that the term "other valuables" should have some meaning different from the term "valuable thing", there is no suggestion that the size of the thing matters. To construe the section in that way could lead to absurd results. 18The Court was accordingly of the view that the application did not disclose sufficient prospects of success to warrant a grant of leave. For those reasons, leave was refused.