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10
Court of Criminal Appeal 21 May 1999

R v Delk

[1999] NSWCCA 134

Also reported as 46 NSWLR 340
Assault & violenceTheft & property
CRIMINAL LAW STEAL FROM THE PERSON NOT ACTUAL PERSON PRESENCE SUFFICIENT.

Citation: R v Delk [1999] NSWCCA 134
Court: NSW Court of Criminal Appeal
Date: 21 May 1999
Judge(s): Smart AJ, Dunford J, Greg James J

Background

The appellant entered a high-end jewellery shop in Sydney and, during a viewing session, lunged across a glass counter and snatched three pieces of jewellery (a watch, a brooch and a bracelet valued at $183,000) that had been placed on a tray in front of him by a salesman. The salesman moved to intercept the appellant, and the appellant punched him about the forehead before escaping. He was subsequently apprehended nearby and the jewellery was recovered from his person.

The appellant was convicted in the District Court, by a judge sitting alone, of stealing from the person in circumstances of aggravation under section 95 of the Crimes Act 1900. The aggravating circumstance was the infliction of actual bodily harm on the salesman immediately after the theft.

The sole issue on appeal was whether the jewellery had been stolen "from the person" of the salesman when, at the time of the taking, it was sitting on a counter tray rather than being held by or on the salesman's body.

  • Whether the phrase "steals from the person" in sections 94 and 95 of the Crimes Act 1900 requires that the property be physically on or held by the victim's body at the moment of taking.
  • Whether it is sufficient, for the purposes of that offence, that the property was in the immediate presence and control of the victim when it was taken.

Decision

The Court of Criminal Appeal dismissed the appeal unanimously. Smart AJ (with whom Dunford J and Greg James J agreed) found that the phrase "from the person" in the relevant provisions does not require physical contact between the stolen property and the victim's body. A taking in the victim's immediate presence and control is sufficient.

Smart AJ drew principally on the Full Court of South Australia's decision in Regina v Stewart [1929] SASR 500, which reviewed the historical development of larceny and robbery statutes from the eighteenth century onwards. That history showed a legislative intent to treat all larcenies from the person, whether open or covert, as a unified category, and to give the words "from the person" the same meaning in the context of robbery as in the offence of stealing from the person. The present facts, where the salesman stood directly opposite the counter and had just placed the jewellery before the appellant, were closely analogous to those in Stewart, where a bank teller had placed notes on a shelf directly in front of him.

Dunford J added that the structural position of the offence within the Crimes Act 1900 reinforced this interpretation. Sections 94 to 98 deal with robbery and its aggravated forms, not with larceny. Stealing from the person therefore sits as a variant of robbery (effectively, robbery without violence or threat of violence) rather than as a variant of larceny. Because robbery has always required that the property be in the victim's presence and control, the same requirement applies to stealing from the person under sections 94 and 95, and the phrase must bear the same meaning in both contexts.

The Court also noted that Stewart had stood unchallenged for approximately 70 years and that its reasoning was consistent with the House of Lords' analysis in Smith v Desmond [1965] AC 960. The appellant's construction, which would have made criminal liability depend on the arbitrary distinction between a victim holding an item and placing it momentarily on a counter, was rejected as unduly artificial.

Orders Made

  • Appeal dismissed.
  • Conviction confirmed.

Key Takeaways

  • Under sections 94 and 95 of the Crimes Act 1900, stealing "from the person" does not require that the property be physically held by or on the victim's body at the moment of taking: immediate presence and control are sufficient.
  • The Court of Criminal Appeal confirmed that Regina v Stewart [1929] SASR 500, which established the "presence and control" test, correctly states the law in New South Wales and has done so for nearly 70 years.
  • Stealing from the person is properly understood as a variant of robbery, not of larceny, given its placement in sections 94 to 98 of the Crimes Act 1900. This structural point informs how the phrase "from the person" should be read.
  • A distinction between property held in the hand and property placed momentarily on a surface immediately in front of a watchful victim was rejected as an artificial and unworkable basis for distinguishing the offence.
  • Caution is warranted when comparing the NSW provisions with current English legislation, given that the Theft Act 1968 represented a significant departure from the statutory regime shared by New South Wales and England before that point.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), sections 94 and 95

Cases:
- Regina v Stewart and Ors [1929] SASR 500 (Full Court of South Australia)
- Smith v Desmond [1965] AC 960 (House of Lords)
- The Queen v Foster (1995) 78 ACR 517