Citation: [2018] NSWLC 30
Court: Local Court of New South Wales
Date: 16 November 2018
Judge(s): Brender LCM
Background
Police attending the defendant's home late on a Friday night found him asleep in a chair. After arresting him for breach of bail and searching him, they discovered a Toyota vehicle remote control in his pocket. The defendant said he had found it in a nearby KFC car park and had not tried to locate the owner or hand it in to police.
The prosecution charged the defendant with two offences: larceny under s 117 of the Crimes Act 1900, and possession of an implement capable of being used to enter or drive a conveyance under s 114(1)(b) of the same Act. The prosecution indicated it did not intend to seek a conviction on both charges but proceeded initially on each, as the offences contain different elements.
Legal Issues
- Whether the prosecution proved beyond reasonable doubt that the defendant intended to permanently deprive the owner of the remote control (a contested element of larceny)
- Whether the defendant's possession of the remote control was dishonest (the other contested element of larceny)
- Whether a Toyota vehicle remote control constitutes an "implement" within the meaning of s 114(1)(b)
- Whether an implement designed for a single specific vehicle falls within the section, or whether the section requires something capable of use across vehicles generally
- Whether the prosecution proved the remote control was functional and capable of actually being used to enter a conveyance
Decision
On the larceny charge, the magistrate was not satisfied beyond reasonable doubt that the defendant intended to permanently deprive the owner of the remote control. There was no evidence of when the defendant had found it, no evidence he held a driver's licence or had access to a vehicle, and no evidence he had been given a reasonable opportunity to hand the item in. The nearby KFC may have been closed at the time, and the police station was approximately four kilometres away. Applying Crown v McDonald (1983) 1 NSWLR 729, the magistrate noted that an intention to deprive can be inferred from the circumstances, but those circumstances must be established. Here, they were not. A strong suspicion of guilt was not sufficient.
On the possession charge, the magistrate first addressed what "implement" means in s 114(1)(b). The section is structured so that references to housebreaking or safebreaking implements plainly cover tools for accessing premises generally, not a key to a single specific house. Applying the principle of noscitur a sociis (a word is known by the company it keeps), the magistrate construed "implement capable of being used to enter or drive a conveyance" consistently with that framing. On that reading, the section covers generic tools capable of accessing vehicles generally, not a remote programmed to a single car.
The magistrate acknowledged the section was ambiguous on this point, and applied the established rule that penal statutes should be construed in favour of the defendant where ambiguity cannot otherwise be resolved, relying on R v Adams (1935) 53 CLR 563. The only reported authority on a key as an implement under this section, Crown v Palmer [2005] NSWCCA 349, involved a filed-down "jiggle" key designed to manipulate locks across multiple vehicles, and did not resolve the interpretive question directly.
Separately, even if the narrower statutory interpretation were wrong, the prosecution had not proved the remote control was actually functional. There was no expert evidence that the device was genuine, in working order, contained a battery, or was programmed to any particular vehicle. The device could have been a toy, a defunct unit, or a remote to a vehicle since reprogrammed or scrapped. Each element of a criminal charge must be proved beyond reasonable doubt, and this one was not.
Orders Made
- The larceny charge was not proven beyond reasonable doubt and the defendant was acquitted.
- The possession charge under s 114(1)(b) was dismissed.
Key Takeaways
- The Local Court held that, on a larceny charge involving found property, the prosecution must demonstrate the defendant had a reasonable opportunity to return the item or notify authorities before an intention to permanently deprive can be inferred from the circumstances.
- Under s 114(1)(b) of the Crimes Act 1900, the term "implement capable of being used to enter or drive a conveyance" is ambiguous as to whether it covers a remote or key designed for a single specific vehicle. The court resolved that ambiguity against the broader reading, construing the section to require a device capable of accessing vehicles generally.
- Applying noscitur a sociis, the court read the "conveyance" limb of s 114(1)(b) consistently with the co-located references to housebreaking and safebreaking implements, which plainly do not cover keys to a single identified property.
- Where statutory ambiguity remains unresolved by purposive construction, the principle that penal legislation should be construed in favour of the defendant applies, as confirmed by R v Adams (1935) 53 CLR 563.
- Proof that a device is functional is a necessary element of the possession offence: the prosecution cannot rely on the item's outward appearance alone, and expert evidence may be required where working condition or programming cannot be inferred from the circumstances.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 114(1)(b), 117
Cases
- Crown v McDonald (1983) 1 NSWLR 729
- R v Pierpoint (14 December 1993, unreported)
- Crown v Palmer [2005] NSWCCA 349
- R v Adams (1935) 53 CLR 563