Peter Martiniello v The Queen [ACTCA]

• Jurisdiction: Australian Capital Territory
• Judge: Crispin P,Gray,Lander JJ
• Judgment Date: 30 October 2006
• Docket Number: No. ACTCA 19 – 2006
• Court: Court of Appeal of ACT
• Date: 30 October 2006

[2006] ACTCA 28

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judges:

Crispin P, Gray & Lander JJ

No. ACTCA 19 – 2006

No. SCC 144 of 2003

Between:

Peter Martiniello

Appellant

and

The Queen

Respondent

Counsel for the Appellant: Mr J Pappas

Counsel for the Respondent: Mr Champion SC with Mr Clynes

Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd[1986] AC 80

Chan Man-sin v Attorney-General of Hong Kong[1988] 1 WLR 196

R v Capewell [1995] 2 Qd R 2 64

Crimes Act 1900 (ACT), ss 93, 95, 96(1)

CRIMINAL LAW — indictment alleging theft of choses in action in sums of money belonging to credit union — relevant sums withdrawn from money standing to appellant's credit in credit card account — whether alleged choses in action existed — whether withdrawals constituted thefts of such choses in action.

REASONS FOR JUDGMENT

THE COURT:

1 On 30 October 2006 we heard an appeal against the appellant's conviction on forty-three counts of stealing choses in action in various sums allegedly belonging to Credit Union Services (Australia) Limited (‘Cuscal’) on various dates between 2 July 2000 and 3 July 2001. After hearing argument directed to the form of the charges, we ordered that the appeal be upheld, that all convictions be set aside, and that, in lieu thereof, verdicts of acquittal be entered.

2 We now provide our reasons for those orders.

3 The relevant circumstances can be briefly explained. Cuscal had provided the appellant with a credit card referred to as ‘Mycard’. There was an agreement between Cuscal and Australia Post pursuant to which Mycard holders could use the Australia Post Bill Pay system (‘Bill Pay’) to effectively transfer funds from their bank accounts to their credit card accounts. Upon a cardholder contacting Bill Pay to make the necessary arrangement, Australia Post would remit the amount in question to Cuscal by electronic transfer and seek recoupment from the nominated bank account pursuant to an agreement with the relevant bank. The agreement between Australia Post and Cuscal provided for the reversal of any transfer of funds in the event that a cardholder's bank subsequently indicated that there were insufficient funds in the nominated account to permit the intended recoupment. The counts on the indictment all related to withdrawals from the appellant's Mycard account of amounts that had been standing to his credit by reason of such transfers. In each case there had been insufficient funds in the nominated bank accounts to permit recoupment of the sums transferred but, for reasons that were not explained, Australia Post had never sought to recover any of the funds from either Cuscal or the appellant.

4 The respondent alleged that the appellant's persistent use of the Billpay system to arrange for successive transfers of funds from Australia Post could not have been attributable to a succession of honest mistakes that the appellant had made about the state of his bank accounts, but rather reflected a sustained course of dishonesty. If sustained, that may have supported charges of theft or misappropriation of funds from Australia Post but the appellant was not charged with offences of that character but only with stealing choses in action from Cuscal.

5 A chose in action is, of course, simply a right enforceable by legal action and charges of this kind have inevitably raised questions about how an alleged offender may steal an incorporeal right, as distinct from money or chattels that may be picked up and carried away. It is clear, for example, a person will not be deprived of a chose in action against a bank merely because of a misappropriation of funds facilitated by, say, the presentation of a forged cheque drawn on his or her account. Such a transaction is simply a nullity as between the customer and the bank and the customer is entitled to insist upon the unauthorised debit to the account being reversed: see Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd[1986] AC 80. This conceptual difficulty has been overcome in some jurisdictions by statutory provisions. For example, in Chan Man-sin v Attorney-General of Hong Kong[1988] 1 WLR 196 the Privy Council upheld convictions for the theft of similar choses in action on the basis of Hong Kong legislation to the effect that an assumption of the rights of an owner of property amounted to an appropriation

6 In the present case, the respondent sought to sustain the charges and...