Whatever may be the fact as to the purchase of cloth, it is perfectly clear that the story told by the first appellant in the presence of the second appellant as to the availability of money in her house was false. It was this falsehood that induced the victim of the appellants to consent to hand over to the first appellant the sum of £600 Bray’s consent was therefore void, for Section 16 (2) of the Criminal Code expressly provides: “A consent shall be void if it is obtained by means of deceit or duress.” Clearly therefore, in our opinion, at the moment when the woman took the money, she took it without the consent of the owner, and dishonestly appropriated it. The offence was one of stealing.
We can do nothing about the setting aside by the learned Judge of the conviction before the Magistrate for stealing, for even if we thought that the facts were capable of supporting a conviction for stealing we are precluded from restoring the conviction. But we do not in fact think so, for upon the evidence it is not clear that the original receipt was tortious (or not wholly innocent) so as to turn the original receipt into a dishonest appropriation by a subsequent intention to appropriate because the appellant was unable to refund the money; or that appellant later tried to misrepresent the transaction as one of loan. “If at the time when property is received the receipt is innocent, the fact that the person who has taken the property subsequently changes his mind and misappropriates it does not render the taking either receiving or larceny” (R. v. Matthews (34 Cr. App. R. 55)).
An appropriation of a thing is dishonest if it is made with an intent to defraud or if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of some person for whom he is trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent.
I think it is well settled law that intent is normally not capable of being proven by direct or positive evidence, it is usually inferred from proven facts.
If I am lent property, and then determine in my own mind to sell it for my own benefit contrary to the terms of the bailment, I have determined that in relation to the property I will no longer be a borrower but an owner, and an owner who wishes to sell. When I proceed to carry that intention into effect by offering the property for sale, I am standing in the owner’s shoes in relation to that property and exercising an owner’s right. In these circumstances I have, in my view, already converted the property to my own use whether the attempted sale takes place or not
This is what exactly happened in the instant case except that here the appellant was a trustee, and not a bailee, who decided to sell the car without the owner’s knowledge and consent. The sale was clearly an act of dishonest appropriation with intent to defraud the council since the proceeds were not also handed over to it.
