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District Court 23 March 2018

Degampathi Jayasekra

[2018] NSWDC 59

Theft & property
CRIMINAL LAW PROPERTY OFFENCES DESTROY OR DAMAGE PROPERTY FINDING OF GUILT PRESUMPTION OF ADVANCEMENT APPEAL APPEAL AND REVIEW

Citation: Degampathi Jayasekra [2018] NSWDC 59
Court: District Court of New South Wales
Date: 23 March 2018
Judge: Judge AC Scotting

Background

The appellant was convicted in the Manly Local Court of destroying or damaging property under s 195(1)(a) of the Crimes Act 1900 (NSW). The conduct was not in dispute: during a domestic argument on 4 June 2017, the appellant damaged a laptop computer and a mobile telephone that were in his wife's possession.

The central question was whether those items belonged solely to the appellant, or whether they belonged to his wife, or to both of them jointly. The appellant argued he was the sole owner and therefore could not be guilty of damaging property belonging to "another."

It was common ground that the appellant had purchased both items and had not expressly declared them to be gifts when he gave them to his wife. The complainant used the laptop for her studies and had more exclusive use of the mobile phone.

  • Whether the damaged items were the property of another person (the complainant), or property jointly owned, so as to satisfy the elements of the offence under s 195(1)(a) of the Crimes Act 1900
  • Whether the presumption of resulting trust applied to chattels (personal property) voluntarily transferred between spouses
  • Whether the presumption of advancement applied, and if so, whether it had been rebutted
  • Whether the Magistrate's conviction was attended by legal, factual, or discretionary error warranting the District Court's intervention on appeal

Decision

Judge Scotting confirmed that an appeal under s 18(1) of the Crimes (Appeal and Review) Act 2001 is a rehearing on the certified transcripts rather than a fresh trial. The District Court may intervene where it is satisfied the original decision was wrong, but will otherwise give weight to the Magistrate's advantage in seeing and hearing witnesses.

On the ownership question, the Court concluded it was unlikely that a resulting trust would be presumed from these facts, and that even if such a trust had arisen, the presumption of advancement would apply. That presumption operates in equity to treat transfers from husband to wife as outright gifts, unless rebutted by sufficient evidence of a different intention.

The Court found no evidence capable of rebutting the presumption. The fact that the appellant purchased the items could not rebut the presumption because purchase by the donor is precisely what triggers it in the first place. The absence of express words of gift was also insufficient: the relevant inquiry is the intention to be inferred objectively from the circumstances of delivery, not the appellant's subjective assertion of intent at a time when he had an interest in claiming ownership.

Taken together, the circumstances supported a finding that the appellant had completed a gift of both items to his wife. The Court was satisfied beyond reasonable doubt that the items were the complainant's property, or at minimum jointly owned, and dismissed the appeal.

Orders Made

  • Appeal against conviction dismissed
  • Penalty imposed by the Magistrate confirmed

Key Takeaways

  • The District Court confirmed that on a conviction appeal under s 18(1) of the Crimes (Appeal and Review) Act 2001, the appellate judge must form an independent view of the facts while acknowledging the Magistrate's advantage in observing witnesses firsthand.
  • The presumption of advancement applies between husband and wife in respect of personal property (chattels), meaning a transfer of goods from a husband to a wife is presumed to be an outright gift in the absence of contrary evidence.
  • A donor's purchase of the item cannot itself rebut the presumption of advancement, because ownership by the donor is what gives rise to the presumption in the first place.
  • The relevant intention in assessing whether a gift was made is the intention objectively inferred from the circumstances of delivery, not the donor's subjective claim of ownership made after the fact.
  • Under s 195(1)(a) of the Crimes Act 1900, property jointly owned by a defendant and another person satisfies the "property of another" element of the offence; sole ownership by the defendant is a defence, but that was not established here.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 195(1)(a)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)

Cases
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Bandana v Director of Public Prosecutions [2016] NSWCA 140
- Charara v R [2006] NSWCCA 244
- Dyason v Butterworth [2015] NSWCA 52
- Englebrecht v Director of Public Prosecutions [2016] NSWCA 290
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Irons v Smallpiece (1819) 2 B & Ald 551 (106 ER 467)
- Nelson v Nelson (1995) 184 CLR 538
- Silver v Silver [1958] 1 All ER 523