Foster v The Queen [1967] HCA 8

Foster v The Queen [1967] HCA 8

The conviction could not stand because the jury were misdirected on an essential element of larceny. The trial judge's direction suggested that taking the pistol without permission with an intent to deprive the owner of possession or use would suffice. The Crown was required to prove beyond reasonable doubt that, at the time of taking, the applicant intended to appropriate the pistol or permanently deprive the owner of it. Section 118 did not remove that requirement, and the defective direction prevented the jury from properly determining guilt.

Jurisdiction
Australia
Procedural Posture
Criminal Appeal Concerning Conviction for Possession of Property Stolen Outside the Australian Capital Territory Under S. 189 a of the Crimes Ordinance 1951 A.c.t. / Application for Leave to Appeal to the High Court; Leave Granted, Appeal Allowed, Conviction and Sentence Set Aside, and New Trial Ordered.
Outcome
Leave to appeal granted; appeal allowed; verdict, conviction and sentence set aside; new trial ordered.
Legal Topics
['larceny' 'possession of Stolen Property' 'mens Rea' 'intention to Permanently Deprive' 'jury Directions' 'misdirection' 'burden of Proof']
['criminal Law' 'criminal Procedure'] ['larceny' 'possession of Stolen Property' 'mens Rea' 'intention to Permanently Deprive' 'jury Directions' 'misdirection' 'burden of Proof']

Case Brief

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Procedural Posture

Criminal Appeal Concerning Conviction for Possession of Property Stolen Outside the Australian Capital Territory Under S. 189 a of the Crimes Ordinance 1951 A.c.t. / Application for Leave to Appeal to the High Court; Leave Granted, Appeal Allowed, Conviction and Sentence Set Aside, and New Trial Ordered.

Legal Issues

  1. 1 ['Whether the trial judge properly directed the jury on the elements of larceny required to establish that the pistol had been stolen.' 'Whether s. 118 of the Crimes Ordinance 1951 A.C.T. removed the need for the Crown to prove an intention to deprive the owner permanently of the property.' "Whether the conviction could stand despite the defective summing up on the applicant's intention at the time of taking the pistol."]

Ratio Decidendi

The conviction could not stand because the jury were misdirected on an essential element of larceny. The trial judge's direction suggested that taking the pistol without permission with an intent to deprive the owner of possession or use would suffice. The Crown was required to prove beyond reasonable doubt that, at the time of taking, the applicant intended to appropriate the pistol or permanently deprive the owner of it. Section 118 did not remove that requirement, and the defective direction prevented the jury from properly determining guilt.

Court Disposition

Leave to appeal granted; appeal allowed; verdict, conviction and sentence set aside; new trial ordered.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Verdict, conviction and sentence set aside.' 'Order new trial.']