Andrew Roy Mattingley v Gary Roderick Tuckwood Sca [1989] ACTSC 35 (19 July 1989)

SUPREME COURT OF THE ACT

ANDREW ROY MATTINGLEY v. GARY RODERICK TUCKWOOD
S.C.A. No. 89 of 1987
Criminal Law - Words and Phrases

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Criminal Law - theft - obtaining property dishonestly by deception

Words and Phrases - meaning of "deception" and "dishonesty" considered - appeal - rehearing

Crimes Act 1900 (NSW) in its application to Australian Capital Territory - ss. 93, 94 and 96

Magistrates Court Act 1930 (ACT) - s.214(2) and (3)

R v. Feely (1973) 1 QB 530

Baker v. Thorpe (1985) 62 ACTR 1

Uranerz (Aust) Pty. Ltd. v. Hale (1980) 30 ALR 193

R v. Staines (1974) 60 Cr App R 160

Director of Public Prosecutions v. Stonehouse [1974] UKHL 2; (1978) AC 55

R v. Crabbe [1985] HCA 22; (1985) 156 CLR 464

R v. Salvo (1980) VR 401

R v. Smith (1982) 7 A Crim R 437

R v. Ghosh (1982) QB 1053

R v. Pemble [1971] HCA 20; (1971) 124 CLR 107

HEARING

CANBERRA
19:7:1989

Counsel for the Applicant: Mr. J.H. Brewster
Instructed by: Messrs Phelps Reid

Counsel for the Defendant: Mr. B. Taggart
Instructed by: Director of Public Prosecutions

ORDER

The appeal be dismissed.

The conviction and penalty imposed be affirmed.

The matter be remitted to the Magistrates Court so that the question of compensation may be dealt with, if necessary.

DECISION

Andrew Roy Mattingley, the appellant, was charged before the Magistrates Court that on 18 September 1986 he stole two thousand two hundred dollars ($2,200) cash moneys and a Roland Keyboard of the total value of $3,000, the property of David and Linda Buckley. He pleaded not guilty, but after a hearing before Magistrate Dainer, was convicted. Without sentence being passed, he was released upon his own recognizance in the sum of $1,000 to be of good behaviour for twelve months. A question of compensation was reserved.

2. Section 99 of the Crimes Act 1900 of the State of New South Wales in its application to the Territory (the Act), a section which appears in Part IV, provides that a person who steals is guilty of an offence punishable, on conviction, by imprisonment for ten years. Section 94 provides that for the purposes of Part IV a person shall be taken to steal if he or she dishonestly appropriates property belonging to another person with the intention of permanently depriving that other person of that property. Again for the purposes of that part, s.96 provides, inter alia, that a person shall be taken to have appropriated property if he or she obtains by deception the ownership, possession or control of the property for himself or for any other person. In Part IV the word, "deception" means any deception (whether deliberate or reckless) by words or conduct as to any matter of fact or law (s.93).

3. On 13 September 1986 David and Linda Buckley, being minded to purchase a piano, went to Brashs Music Store at Phillip. They were browsing around the musical instrument section when the appellant came up and offered assistance. They told him they were looking for a piano. He showed them a few new ones which were out of their price range. They told him that they were prepared to spend about $3,000. After looking at some secondhand ones, the appellant told them that he had at home a piano which he reluctantly wanted to sell to finance the restoration of a very rare and old piano that he had and which was probably better value than the ones they had been shown. He said he wanted to sell it for about $4,000 and that it was in excellent condition. On the following Wednesday Mr. and Mrs. Buckley attended with a friend, Mr. Thompson, by appointment at 6 p.m. at the appellant's address. There they were shown a piano, a Chappell Baby Grand. The appellant played a few bars. Mrs. Buckley, who had had some training, played briefly also. The appellant pulled the mechanism out and explained a few things. In particular he referred to the pin block. He said that pin block shrinkage was a problem with pianos in Canberra. However, he said, the piano in question had a laminated pin block and hence would never shrink so that there would never be any problem on that account. He said of the piano that it was in very good, excellent conditon and had been adjusted recently. He estimated that it would probably have another twenty years of serviceable life.

4. Mr. Buckley eventually said that the piano looked all right to him but that he would like a second opinion as he knew nothing about pianos. The name of one Ron Brindley, a piano tuner, came up. Mr. Mattingly said that he had a very good reputation because he worked for the School of Music which would only take the best tuners. He gave Mr. and Mrs. Buckley Mr. Brindley's name and phone number and later that evening Mr. Buckley contacted Mr. Brindley to do an evaluation of the piano.

5. Subsequently, Mr. Brindley contacted Mr. Buckley to say that the piano was in very good condition and that he would give a written statement to that effect. In due course he gave a certificate, the text of which was as follows:

"Re: Chapel (sic) Grand Piano.
This is to certify that the above piano is fully
guaranteed (sic) for twelve months."

6. The certificate was signed by Mr. Brindley and dated 18 September 1986. It was addressed to Mr. and Mrs. Buckley at their home address.

7. On 18 September 1986 Mr. and Mrs. Buckley paid $2,200 cash and gave the Roland Keyboard which was valued at $800 as a trade-in. They received a receipt for the full amount.The piano was delivered apparently on 18 September 1986 and with it an envelope which contained a further document dated that day and signed by the appellant. It was in the following terms:

"Bill of Sale
This is to acknowledge receipt of $3,000 being
full payment for Chapel (sic) Grand Piano
including delivery and tuning from David and Lyn
Buckley of 125 Newman Morris Cirt., Oxley."

8. Mr. Buckley gave evidence that arrangements were made for the tuning to be done approximately a week after delivery, that delay having been to allow the piano to settle, as he was told. Mr. Brindley tuned the piano and gave him at that time, he said, the document referred to above. On this Mr. Buckley may well have been wrong for the "guarantee" tendered is dated 18 September 1986 and one would have expected the Buckleys to have received it before they completed the transaction. He said that Mr. Brindley replaced nothing but just tuned the piano with the tuning pins without touching any mechanism.

9. About a month later the piano went out of tune. Mr. Buckley rang Mr. Brindley to arrange for him to come to retune it. Although a number of arrangements were made for this to be done, Mr. Brindley kept none of them. After a while Mr. Buckley became, as he put it, a bit fed up and contacted another tuner, Mr. Ian Greig, who inspected the piano.

10. Following what Mr. Greig told him, Mr. Buckley approached the appellant and asked what he could do because a tuner whom he had consulted had said the piano could not be tuned. The appellant asked who the tuner was. On being told his name he said that he was incompetent and had been sacked from Brashs for that reason. It was then agreed that another tuner, Mr Geoffrey Pogson, who it was expected would give an unbiased opinion about the piano, would evaluate it.

11. Mr. Pogson gave Mr. Buckley a written report which he showed to the appellant, who thereupon declared Mr. Pogson to be incompetent also. He said that he would come out personally and have a look at the piano. He called and attempted to tune it but was unable to do so because of loose tuning pins. Mr. Buckley pointed out the other faults in the piano which had been pointed out to him. He gave evidence that the appellant then said that the pins were loose and needed repair and that Mr. Buckley would have to pay to have them fixed. He said that cracks in the soundboard were quite okay and did not affect the instrument. He would arrange, he said, to have his tuner come out and fix the loose pins.

12. Subsequently, Mr. Buckley sought the assistance of other piano tuners, one John Ward, one Christopher Davis and one Mark Bolsius.

13. Mr. Thompson, who was present with Mr. and Mrs. Buckley when they inspected the piano on 17 September 1986 gave evidence corroborating that given by Mr. Buckley. He said that the appellant said that he had had the piano for a while and that it was his. He deposed that the appellant had said that "the soundboard is in good condition" and that the piano would last and was in good condition. He also said that the appellant had told them that the tuning pins had been attended to and had been restored and that he had been led to believe that the "actual housings for the pegs had been replaced". He said also that the thought that the appellant had said that the piano would last around twenty years.

14. Statements from Mr. Pogson, Mr. Bolsios, Mr. Christopher Davis, and Mr. John Stanley Ward were tendered.

15. Mr. Pogson described the piano at 17 February 1987 as in fair condition except for the following:

"Tuning wrest Plank (Pin Block)
Owing to pin wear, partial crushing of lamination
and shrinkage this instrument is unable to be tuned.
Sound Board
Owing to many splits in the sound board this has
a bearing on tonal quality and holding in tune."

16. Mr. Ward said that examination revealed that the pin block was both split and weakened and many tuning pins were not tight enough in the block for the instrument to remain in tune. He said this was particularly evident in the bass area. He said it was clear that many tuning pins had been hammered into the coil in what is recognized as a "last ditch" attempt to make the instrument temporarily tunable. Additionally, he said, the soundboard was badly cracked, particularly around the middle to upper treble bridge. This had resulted in the collapse of the soundboard so that there was "negligible to no crown remaining and thus no down bearing angle on the strings". He said that he had previously examined the piano in about August 1984 when he had condemned it but that at that time the tuning pins had not been hammered in. In his opinion the instrument had major structural problems rendering it beyond economical repair and therefore worthless as a musical instrument.

17. For much the same reason Mr. Christopher Davis described the piano as completely worthless as a musical instrument. He added that he too had inspected the piano before, in March or April 1984 when, because of its poor condition then, he declined to accept it as a trade-in.

18. Mr. Bolsius reached the same conclusion for the same basic reasons as the other experts.

19. Mr. Ian Greig described the piano as in very poor structural condition because the soundboard was cracked and some notes could not be tuned because of loose tuning pins. In his opinion the piano in its present condition was worthless as a musical instrument He said in evidence that a crack in the soundboard stops the sound travelling and affects the tone greatly.

20. When spoken to by the police some seven months after the sale, the appellant said that he had then been employed by Brashs store for some twenty-two months. Asked what degree of expertise he considered he had in selling pianos, he replied that he was reasonably good at it and had received extensive training through Brashs. He was then asked a number of questions set out below and gave the answers recorded.

"Q. Have you ever received any formal training in
selling pianos?
A. Yeah there's extensive training through Brashs.
Q. When would you have undergone this training?
A. The training is on the job and on going.
Q. Have you ever attended any courses with
regards to pianos?
A. Yes, the first training I received in
Melbourne before coming to Canberra, there's
been numerous times.
Q. What did the course content entail?
A. Piano construction, design and principles.
Q. What period would these courses have covered?
A. As I said training is ongoing on the job, the
courses are interspersed with it.
Q. What would you consider your ability as a
result of your training to determine the
condition of pianos?
A. I would think it would be very good."

21. During the course of the interview he was asked who owned the Baby Grand piano and replied, "Ron Brindley". He said that Mr. Brindley lived out of town and shared his residence three days a week and that the piano had been at his residence for a month and a half to two months. He said it was "old but serviceable, played well, sounded all right, sounded quite nice in fact". He said that everything was working, there were no obvious faults other than wear and tear. He was then asked about wear and tear and replied, "Hammers were marked, strings were obviously old, that's all. Oh hang on, there was a noticeable crack in the soundboard near the treble bridge, but it was not buzzing and so did not affect the sound." The appellant said that at the time of the sale the crack did not affect the value of the piano at all except perhaps as to its appearance. He was then asked a number of other questions which with their answers I set out below:

"Q. Do you know where the piano came from prior
to your address?
A. It came from a music teacher at Goulburn. I
don't know his name but I can probably find
out through our carriers.
Q. Do you know who sold the piano to the music
teacher?
A. Yes, Ron Brindley.
Q. Who did Ron buy the piano from?
A. I don't know.
Q. What does Ron Brindley do for his occupation?
A. Um piano tuner.
Q. What did he tell you about the piano?
A. That it was a chapell baby grand, very very
tidy and good for its age.
Q. How old was the piano?
A. Um exactly I couldn't tell you without dating
it, I'd have to look aat the serial number.
Q. The serial number was 65857.
A. I need a piano atlas which I haven't got with
me.
Q. What does a soundboard in a piano do?
A. It acts as an amplifier.
Q. Why would cracks not affect that function?
A. Cracks travel along the grain, sound travels
better along grained timer than across it,
for the purpose of ribs on a soundboard is to
transfer the sound to other parts of the
soundboard across the grain. The ribs were
intact. Also it sounded very good which is
the only real way to determine the effect of
the crack.
Q. Had any work been done to the piano prior to
the sale?
A. Apart from any maintainance (sic) at the
teachers house not that I know of.
Q. What was the condition of the connection of
the soundboard to the treble bridge?
A. There is no connecting part, the bridge is
glued and screwed to the soundboard.
Q. What was the condition of the treble bridge?
A. Good fine.
Q. Were any cracks or splits visible in the
treble bridge?
A. No I don't think so.
Q. What was the position of the tuning pins in
relation to the wooden block, that is how
much of the tuning pin was visible?
A. If you mean had they been knocked in, no they
hadn't."

22. On these facts the learned magistrate found a prima facie case against the appellant.

23. After summarising the evidence he referred to R v. Feely (1973) 1 QB 530.

24. Dealing in that case with part of s.1 of the English Theft Act 1968, a part which is for all practical purposes identical with s.94 of the Act, Lawton L.J., giving the judgment of a Court of Appeal consisting of five judges, said at pp 537-8:

"In section 1(1) of the Act of 1968, the word
"dishonestly" can only relate to the state of
mind of the person who does the act which amounts
to appropriation. Whether an accused person has
a particular state of mind is a question of fact
which has to be decided by the jury when there is
a trial on indictment, and by the magistrates
when there are summary proceedings. The Crown did
not dispute this proposition, but it was submitted
that in some cases (and this, it was said,
was such a one) it was necessary for the trial
judge to define "dishonestly" and when the facts
fell within the definition he had a duty to tell
the jury that if there had been appropriation it
must have been dishonestly done.
We do not agree that judges should define what
"dishonestly" means. This word is in common use
whereas the word "fraudulently" which was used in
section 1(1) of the Larceny Act 1916 had acquired
as a result of case law a special meaning.
Jurors, when deciding whether an appropriation
was dishonest can be reasonably expected to, and
should, apply the current standards of ordinary
decent people. In their own lives they have to
decide what is and what is not dishonest. We can
see no reason why, when in a jury box, they
should require the help of a judge to tell them
what amounts to dishonesty. We are fortified in
this opinion by a passage in the speech of Lord
Reid in Cozens v. Brutus (1972) 3 WLR 521, a
case in which the words "insulting behaviour" in
section 5 of the Public Order Act 1936 had to be
construed. The Divisional Court had adjudged
that the meaning of the word "insulting" in this
statutory context was a matter of law. Lord
Reid's comment was as follows, at p 525:
"In my judgment that is not right. The
meaning of an ordinary word of the English
language is not a question of law. The
proper construction of a statute is a
question of law. If the context shows that a
word is used in an unusual sense the court
will determine in other words what that
unusual sense is. But here there is in my
opinion no question of the word 'insulting'
being used in any unusual sense ..... It is
for the tribunal which decides the case to
consider, not as law but as fact, whether in
the whole circumstances the words of the
statute do or do not as a matter of ordinary
usage of the English language cover or apply
to the facts which have been proved.""

25. In finding a prima facie case against the appellant, the learned magistrate relied heavily, it would seem, on the statement made by Mr. Ward, who was not called. The statement was eventually excluded from evidence when the matter was further dealt with at a later date and I ignore it as did the learned magistrate when he came to give his judgment. The appellant, in giving evidence before the learned magistrate, had denied the allegations made in that statement and Mr. Ward was not called to rebut that denial.

26. The appellant gave evidence. First he denied the conversation described by Mr. John Ward in his statement. He swore that the piano was Mr. Brindley's piano and that Brindley had asked him to sell it for him. He agreed that the Buckleys had come to his house to inspect the piano and that Mrs. Buckley had played it there. He said that he could not remember specifically saying anything about the qualities of the piano but agreed he would have said that it played well, sounded nice and was in tune to his ear. He said he did not examine the pin block. Of the crack in the soundboard he said that this was really only a problem if it affected the sound and it was not apparently doing that. He said there were no apparent problems with the sound that one could hear. He said that the Buckleys went away and came back for a second look. This is not in accordance with the evidence given by the Buckleys. He said that at that stage they asked for a tuner's report, a fairly standard thing to do. He said that he arranged for Mr. Brindley to have a look at it. When the Buckleys complained to him about the condition of the piano he said that he went to examine it and found a tuning pin to be quite loose. That was not a problem of which he had been earlier aware. He said that he was never asked to provide a second opinion but only a tuner's report, something quite different. He was then asked a number of questions concerning Mr. Brindley's ownership of the piano:

"Now, I think you have said that Mr. Brindley
owned the piano?--- Yes, that is correct.
And you were selling it for him?--- Yes.
And did you disclose that to the Buckleys, as to
who was the owner?--- I thought I had, but
apparently I had not.
And you are aware, are you not, that they wanted
some independent advice as to the correct state
of the piano?--- They asked me for a tuner's
report, so specifically I pointed out that
Mr. Brindley did work for Brashs, was associated
with the company.
Did you point out that Mr. Brindley owned the piano
?--- To be perfectly honest, I do not think so."

27. Asked what he understood the Buckley's reason for wanting a tuner's report to be, he replied, "For reassurance". He said that he had no reason to believe that Mr. Brindley would mislead them for if he did so he would be jeopardising his opinion with Brashs.

28. After some questioning as to his training in detecting problems with pianos, he was asked, "And how would you assess your knowledge of piano construction and the workings of a piano?, he replied "It was all fairly theoretical, but it was reasonably extensive." He was then asked, "So, when you said to the police, when you were asked what your ability would be as a result of your training to determine the condition of pianos, and you answered, "I think it would be very good", and that was certainly true at the time, wasn't it?". He replied, "At the time of that interview it was very true". He was making the point that at the date of the interview twenty-two months had elapsed since he began to work for Brashs but at the time when he made the statement only fifteen months had elapsed. He denied that he had said that the piano was good for another twenty years. He did not disagree with the suggestion that he was selling the piano because he wanted to buy another one. It will be remembered that Mr. Buckley's evidence was that he had said he was selling the piano because he wanted to restore another one. He was asked what was his attitude to the proposition that the piano had been getting out of tune very quickly for some years. He replied that he did not think that was likely at all. He said the piano must have been reasonably stable because it was at a piano tuner's place in Goulburn for about two years before it came to Canberra and he was quite happy about it. He said he had no reason to suspect the piano was "unstable, tune-wise".

29. Mr Adrian Ormiston, in whose possession the piano had in fact been for those two years was not a piano tuner but a piano teacher by occupation. He was called to give evidence on behalf of the appellant. He said that at the beginning of 1986 he sold the piano in question to Mr. Brindley from whom he had bought it about two years before. He described its apparent condition during the two years during which he had it as stable, saying that for the whole two years he had it he found it perfectly satisfactory, using it for teaching for six days a week, five hours a day and practising on it himself for two or three hours a day. He found that there was a particular problem in that the lower stop did not stay in tune very well at all remaining in tune for only about three weeks or so. That did not present a problem to him because he did not use the lower octave very much either in teaching or in playing. He said that when the piano was in tune it played all right and he agreed that the crack in the soundboard did not affect the sound enough to bother him. When he disposed of the piano to Mr. Brindley he had traded it in on another piano. He thought that the reason that the lower octave did not stay in tune was that the tuning pins were loose but he was not sure about that. He thought there was a weakness in the board into which the pins went.

30. Mr. Stefan Zywczak, another piano tuner, gave evidence on behalf of the appellant. He said that he found on examining the piano shortly before the hearing in the Magistrates Court that there were two specific problems. The first was that there was one particular tuning pin which was very loose. As a result the particular string could not be tuned in its present condition. The note was G-sharp, an octave from the bottom. The second problem were that there was some sticking centre pins with the piano which made the action slightly uneven and he said there were other problems with the piano but he could not say that they were such that the piano could not be used. He noticed the crack in the soundboard but did not think that gave rise to any particular problems. He did not check the whole instrument saying that he could not do so in the time available. Asked whether the condition of the piano could have deteriorated in the six months or so from the date of its sale to the time when it was found to be defective, he agreed that it was quite possible both in relation to the tuning pins and to the pin block.

31. He was asked whether a Grand piano had a value as a piece of furniture. He replied that even in its present condition one would expect to pay anything up to three to four thousand dollars for a piano like that as a piece of furniture. In cross-examination he agreed there was evidence that some of the tuning pins had been knocked in as far as they could so that the pins could not be used to tighten these strings any further but said also that this could be remedied by taking those pins out and substituting larger pins for them.

32. The prosecution based its case on what it said were two elements of deception. These were that at the time of the sale to the Buckleys, the appellant knew or ought to have known that the piano was worthless as a musical instrument and, secondly that he had introduced Brindley to the Buckleys as an independent tuner to give them a second opinion regarding the piano when he knew that Brindley was not independent at all but in fact either owned the piano at that stage or had owned it earlier. Accordingly, he had deceived the Buckleys into accepting Brindley's word regarding the condition of the piano. Brindley was not called but his statement was tendered in evidence. That statement said that he had in fact sold the piano to the appellant in July or August for the sum of $2,000 in satisfaction of a debt which he owed to the appellant. In his statement he said that he knew the appellant had sold the piano to the Buckleys and that the appellant had arranged for him to tune the piano at their house, but he did not know the details of the transaction. He said that he had also tuned the piano at the appellant's place when he sold it to him. He said, "The last time I saw the piano for its age I would say it was in a serviceable condition".

33. The learned magistrate asked himself first whether the piano was in fact at the relevant time worthless as a muscial instrument. He found on the evidence before him, notwithstanding the evidence given by Mr. Zywczak, that the piano was indeed worthless as a musical instrument. He found that it was purchased by the Buckleys as a musical instrument These findings were plainly open on the evidence.

34. He then turned to the question as to whether the appellant knew or should have known that the piano was indeed worthless as a musical instrument at the time he sold it to the Buckleys. He said that the prosecution case was that the appellant had enough training, experience and background knowledge of pianos to assess its proper condition. He found that the appellant did deceive the Buckleys regarding the piano's condition. He accepted as setting out the true situation regarding the appellant's state of knowledge concerning the condition of pianos what he had told the police in that section of the interview which ended with the question, "What would you consider your ability as a result of your training to determine the condition of pianos?" and the answer to that question, "I would think it would be very good". He found also that the appellant had represented the piano to be in reasonably good condition, accepting the evidence of the Buckleys as to that and that it was supposed to be of "sufficient longevity to last at least twenty years". In this he clearly preferred the evidence of the Buckleys to that of the appellant.

35. The learned Magistrate went on:-

"Now, if he did not do it deliberately he certainly did
it recklessly, that is, ... he did it without
exercising his mind as to the exact conditon of the
piano. It seems to me that all indications are that he
did it quite deliberately. The other aspect of the
prosecution's case related to the participation of
Brindley. Now, here there was clear deception because
the Buckleys' evidence was that they said, because of
their lack of knowledge of pianos, that they would like
a second opinion (on) this matter and immediately,
according to them, the defendant recommended Mr.
Brindley who, he said, was Brashs' tuner and at that
stage the Buckleys were prepared to accept his
recommendation of Mr. Brindley. Subsequently, and
before the deal was completed, there were further
discussions with the defendant and Mr. Brindley at
Brashs and they were told that Mr. Brindley was also
employed by the School of Music and I accept they were
indeed told ..... that and it seems that because of
that representation by the defendant, they agreed that
Mr. Brindley could give an assessment of the piano.

(I think that on the evidence the learned Magistrate's finding should not have included the words "subsequently, and" underlined above but this minor error could have had no effect on the result.)

"And, of course, not only was he not independent, .....
he in fact was either the owner at that stage or quite
recently before that the owner of the piano and would
certainly have an interest in its sale, not being in
any position of independence at all. So that was a
clear deception on the part of the defendant. I do not
think it is necessary to go into the question of
exactly who owned the piano, but certainly the
defendant had it in his possession for some month and a
half to two months in his own evidence and that would
be adequate time for him to make an assessment of the
suitability for sale and condition (in)which he
purported it to be. But I have no reasonable doubt
that the defendant did indeed deceive the Buckleys both
as to the condition of the piano and as to the role of
Mr. Brindley in the whole matter. In other words, he
sold them a bomb."

36. He found the offence proved.

37. During the course of argument before me, counsel for the appellant conceded that it was inappropriate conduct on the part of the appellant to have recommended Mr. Brindley to the Buckleys. He also conceded that there was no doubt that there were problems with the tuning of the piano. He accepted, as he was bound to do, the evidence of Mr. Ormiston on this point.

38. He referred to the evidence of Mr. Zywczak as supporting the appellant's claim that the piano was in reasonable condition but, of course, the learned magistrate rejected that evidence, as he was entitled to do, on the evidence and statements of other piano tuners whom he found to be of considerable experience.

39. Dealing with the appellant's ability to determine the condition of pianos, the learned magistrate said, "On the defendant's own admission made during the course of that record of interview, which I accept was made, it was not the subject of any contest, it must be said that there is only one conclusion open, that the defendant did have sufficient training and experience during the course of his work - some eighteen months with Brashs - to make a proper assessment of the piano's condition".

40. An appeal to this Court from a conviction by a Magistrate exercising summary jurisdiction in the Magistrates Court is a rehearing (Baker v. Thorpe (1985) 62 ACTR 1). Sub-s.214(2) of the Magistrates Court Act 1930 provides that in an appeal to which this section applies (and it applies to this appeal), the Supreme Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of facts. Although provision is made for further evidence to be tendered in the circumstances set out in sub-s.214(3) of the Magistrates Court Act, no evidence was sought to be tendered and the matter proceeded before me on the material before the learned magistrate.

41. An appellate court which hears an appeal on documents should generally defer to the conclusion of the lower court or tribunal as to the credibility of witnesses. It should depart from this principle only when the findings of the lower court or tribunal, based on its conclusion as to the credibility of witnesses, are clearly wrong on grounds other than credibility, such as inconsistency with established facts or accepted evidence, inherent probability or error of law. Uranerz (Aust) Pty. Ltd. v. Hale (1980) 30 ALR 193.

42. There seems to me to be no reason why I should not defer to the conclusions of the learned magistrate as to the credibility of the witnesses before him.

43. The resolution of this appeal depends upon the answer to the question whether the conduct of the appellant constituted deception and was dishonest. The learned magistrate held that he did either deliberately or recklessly decieve.

44. In R v. Staines (1974) 60 Cr App R 160, the Court of Appeal considered the phrase, "Any deception (whether deliberate or reckless) in the following paragraph:

"The important words for present purposes are 'any
deception (whether deliberate or reckless)'. There is
no dispute between the appellant and the Crown through
their counsel that the word 'reckless' in that sub-section
should be given the construction of meaning 'without
caring' being indifferent to whether the statement is
true or false; 'reckless' means something more than
carelessness or negligence." (At p 162).

45. That definition accords with the one given by Lord Diplock in Director of Public Prosecutions v. Stonehouse [1974] UKHL 2; (1978) AC 55 at p 60. There his Lordship defined the essential state of mind of an accused at the time of doing the physical acts amounting to a deception as his knowledge of the falsity of the representation or his indifference as to whether it is true or false and his intentions (1) that the false representation should be communicated to the person from whom the property is to be obtained; (2) that such person should believe the representation to be true; (3) that this belief should induce that person to part with ownership, possession or control of property to the accused himself or to some other person; and (4) that the accused himself or that other person should assume the rights of owner of the property so obtained. That definition seems entirely applicable to the relevant provisions of Part IV of the Act.

46. Bearing in mind the approach taken by the High Court to the meaning of the word "reckless" in R v. Crabbe [1985] HCA 22; (1985) 156 CLR 464, it seems to me it might now be more precisely defined in the context as indifference as to whether a representation is true or false knowing that, more probably than not, it is false.

47. In R v. Salvo (1980) VR 401 McInerney J. said at pp 406-7:

"Assuming deception (sc. of a person) the
requirement of dishonesty means that the conduct
of obtaining by a deception property belonging to
another with the intention of permanently depriv-
ing the other of it will not contravene s.81
unless it was done "dishonestly". Deception is
the means whereby the property is obtained, but
the adverb "dishonestly" qualifies the verb
"obtains" or the verb-phrase: "obtain-by
deception - property - belonging - to - another -
with - the intention - of - permanently -
depriving - the other - of - it".
In other words, it is the obtaining of property
belonging to another with the intention of
depriving that other permanently of it which must
be done dishonestly.
To some extent we are in the realm of tautology,
for the phrase "by ... deception" imports more
than that the owner of the property was (deceived
or) misled in parting with his property. The
terms "deceive" and "deception" have, by long usage
and by accepted doctrines of law, the connotation
that the deception or misleading of the other
person was intentional, or at all events not
accidental. See Re London & Globe Finance
Corporation (1903) 1 Ch 728, at p 732, per
Buckley J. The phrase "by any deception" is not
satisfied by an innocent misrepresentation - the
misrepresentation must have been made fraudulently
that is with knowledge of its falsity or recklessly
without an honest belief in its truth, careless of
whether it were true or false. But even that is
not enough: the Act requires that the obtaining
by deception must have been done dishonestly."

48. His Honour's was a dissenting judgment, but the question upon which he differed from the other members of the Court does not affect, in my respectful opinion, the accuracy of the passage just quoted.

49. In R v. Smith (1982) 7 A Crim R 437, the Court of Criminal Appeal of Victoria approved a direction as to the meaning of the word "recklessness" which said, in essence, that what was required in a case of obtaining financial advantage by means of cheques which were dishonoured, as far as recklessness was concerned, was that the accused either knew or recognized that there was a substantial risk of the cheque's being dishonoured but nevertheless went ahead and drew it and passed it.

50. As O'Bryan J. said in the same case at pp 446-7:

"Reckless conduct is a concept well known to the
criminal law. The doctrine of murder by recklessness
was explained by the High Court in Pemble [1971] HCA 20; (1971) 124
CLR 107. Subject to a qualification I shall refer to
in a moment, the following passage in the judgment of
the then Chief Justice of the High Court, Sir Garfield
in Pemble's case, states the principle, at p 119:
'But it is of paramount significance to observe
that recklessness to be relevant involves foresight
of or, as it is sometimes said, advertence to
the consequences of the contemplated act and the
willingness to run the risk of the likelihood,
or even perhaps the possibility, of those
consequences maturing into actuality. This aspect
of recklessness entails an indifference to a result
of which at least the likelihood is foreseen.
An awareness of the consequences of the contemplated
act is thus essential. This concept bears on the
state of the applicant's mind, whether he had a
guilty mind at the relevant time which the jury had
to be satisfied about to the requisite extent.
A qualification has been placed upon "the
possibility" by cases such as Nydam (1977) VR
430 at p 437; and Windsor (1980) 4 A Crim R 197,
at p 201. The view expressed in those cases is
that one must foresee the possibility of the
consequences of eventuating.'"

51. The qualification just referred to seems to me, with respect, to be perfectly accurate having regard to the decision of the High Court in R v. Crabbe (supra). Accordingly, the passage from Pemble's case just quoted should be read as though the phrase "or even perhaps the possibility" were deleted.

52. The learned Magistrate held the conduct of the appellant to be deceptive. He considered it to have been deliberately so. Certainly in the circumstances his finding on the introduction of Brindley into the transaction, an inroduction conceded by the appellant's counsel to have been inappropriate, cannot be attacked. He considered that, in any event the appellant's representations as to the piano's condition must have been reckless, at the least. Expression of that view, given his finding that both deceptions were deliberate, a finding I think clearly open as a matter of law, does not constitute a duplicitous finding. It seems to me that it is irrelevant whether the tribunal of fact is uncertain whether deception was deliberate or reckless. It is enough if the tribunal is satisfied beyond reasonable doubt that it was one or the other. I do not think the learned Magistrate misdirected himself as to the meaning of the word "reckless" if that meaning as necessary to his decision.

53. Having regard to the inconsistencies in the appellant's case and allowing for the advantage the learned Magistrate had in seeing the witnesses, as to which see S.S. Hontestroom v. S.S. Sagaporack (1927) AC 37 at pp 4708, per Lord Sumner, I am unable to see that he erred or even that another conclusion consistent with the existence of what ought to have been a reasonable doubt was properly available.

54. I think the word "dishonestly" used in Part IV of the Act is to be taken as a conscious departure from a community standard consciously understood. It was for the Magistrate to decide as a matter of law whether on the facts found by him there could be such a departure from such a standard. This test seems to accord with the intention of the legislature (see the explanatory memorandum at p 8 and Criminal Fraud by Lanham, Weinberg, Brown and Ryan at pp 35 and 36) and to be preferable to those laid down in R v. Feely (1973) QB 530 and R v. Ghosh (1982) QB 1053.

55. I can see nothing to indicate that the learned Magistrate misdirected himself for it seems to me that the conduct found was a conscious departure from a consciously understood community standard and no material which might have constituted a defence under part IV of the Act was put forward by the appellant.

56. Counsel for the appellant also submitted that there was evidence (of Mr Zywczak) that the piano was worth more than the Buckley's had paid for it. The answer to this submission is that the Buckley's sought to buy a musical instrument, not a piece of furniture and this the appellant, on the learned Magistrate's findings, well knew.

57. The appeal must be dismissed.