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Court of Criminal Appeal 20 November 2014

Madden v Regina

[2014] NSWCCA 291

HomicideTheft & property
CRIMINAL LAW APPEAL STATUTORY CONSTRUCTION MEANING OF THE PHRASE "OTHER VALUABLES"

Citation: Madden v Regina [2014] NSWCCA 291
Court: Court of Criminal Appeal of NSW
Date: 20 November 2014
Judge(s): Simpson J, Price J, McCallum J

Background

The applicant was arraigned in the District Court on two counts of dealing with property intending that it would become an instrument of crime, contrary to s 193D(1) of the Crimes Act 1900. The charges arose from an alleged murder in April 2012, in which the Crown alleged the applicant purchased a blue Yamaha motorcycle for use by another person in a fatal shooting.

Count 1 concerned the cash used to purchase the motorcycle. Count 2 concerned the subsequent transfer or delivery of the motorcycle itself to the alleged shooter. Count 1 was permanently stayed by the trial judge, a decision the Crown did not challenge. The applicant then sought to quash count 2.

The trial judge (Syme DCJ) dismissed the application to quash count 2, finding that a motorcycle was capable of being "property" within the meaning of s 193D(5). The applicant sought leave to appeal that refusal to the Court of Criminal Appeal.

  • Whether a motorcycle is capable of constituting "property" as defined in s 193D(5) of the Crimes Act 1900, that is, whether it falls within the phrase "money or other valuables"
  • Whether the expression "other valuables" is limited to small items of personal property, as suggested by the Oxford English Dictionary definition
  • Whether the deliberate departure from the language used elsewhere in the Crimes Act (such as "valuable thing") and from broader Commonwealth definitions implied a narrower legislative intention
  • Whether any ambiguity in a penal statute must be resolved against the imposition of criminal liability

Decision

The Court of Criminal Appeal refused leave to appeal, finding that the application did not disclose sufficient prospects of success. The court agreed with the reasoning of Syme DCJ in the court below.

The applicant's central argument was that the phrase "other valuables" in s 193D(5) imports a size limitation, confining the provision to small items of personal property. The court rejected this. While the dictionary definition referenced "a small item of personal property" as an example of common usage, the court accepted the trial judge's finding that this was illustrative only, not definitional. The legislation contains nothing to suggest a size limit applies to items capable of being the subject of a charge under s 193D.

The court also rejected the argument that, because the legislature chose different language from "valuable thing" used elsewhere in the Crimes Act, or because the NSW provision is narrower than its Commonwealth counterpart, this implied a restriction based on size. Even accepting some intended difference in meaning between "other valuables" and "valuable thing," the court found no basis to conclude that difference related to the physical dimensions of the item. To read a size restriction into the provision, the court observed, could produce absurd results.

Orders Made

• Leave was refused

Key Takeaways

  • The Court of Criminal Appeal confirmed that a motorcycle is capable of constituting "property" within the meaning of s 193D(5) of the Crimes Act 1900, which defines property as "money or other valuables."
  • Under s 193D(5), the term "valuables" does not import any limitation based on the size, weight, or physical dimensions of the item in question. Nothing in the legislation supports reading such a restriction into the provision.
  • A dictionary definition that describes "valuables" as typically meaning "a small item of personal property" is illustrative of common usage, not determinative of the legal meaning of the term in a statutory context.
  • The fact that other provisions of the Crimes Act used different language ("valuable thing") and that the Commonwealth equivalent carries a broader definition did not, of itself, establish that the NSW legislature intended to restrict the class of items by reference to size.
  • In dismissing the leave application, the court applied the principle that ambiguity in penal statutes should be resolved against criminal liability, but found no genuine ambiguity capable of supporting the narrow construction the applicant urged.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), particularly ss 193D(1) and 193D(5)
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
- Confiscation of Proceeds of Crime Amendment Act 2005 (NSW)
- Criminal Code Act 1995 (Cth), s 400.1(2)

Cases:
- Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19