Court rejects defense of stolen property being abandoned; owner's intent to retrieve bars negates abandonment defense.

*[610] 1982 September 9

(PR. NICOLAIDES, AG.S.D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Limassol Police,

v.

Michalis Demetriou Christofi, alias Kopanos,

Accused.

(Case No. 11227/82).

Criminal Law - Stealing - Section 255 of the Criminal Code Cap. 154 - stealing under belief that property stolen was abandoned and that the owner would have consented to the appropriation - Stealing iron bars from the rubble of demolished houses - Iron bars not abandoned property in the circumstances of this case'.

Chief Inspector Christoforou, for the Prosecution.

Chr. Pourgourides, for the accused.

JUDGMENT

The following judgment was delivered by:-

FR. NICOLAIDES, AG.S.D.J.: In the present case [*611] the Accused is charged with the stealing of seven iron bars and eight pieces of railings, property of the Republic, contrary to section 255 of the Criminal Code, Cap. 154

The Accused admitted that he took the said iron bars, but his line of defence was that he considered the iron bars as abandoned and that he anticipated the consent of the owners.

The facts of the case are rather simple. In Ayios Antonios quarter in Limassol the department for the protection of Turkish Cypriot properties demolished a number of houses. From the rubble the various building materials which had a certain value were separated and the light ones were transported to the Government warehouses, whereas the heavy materials were left there. According to the evidence of Marcos Christofi, the foreman of the department, at the site there were about twelve iron bars out of which seven or eight disappeared. Later on he was called to the Limassol Central Police Station where he sawthe. iron bars which were found in the possession of the Accused. He described them as similar to the ones which were part of the demolished houses and said that some of them would be taken to the warehouse for storage and some would be thrown away. He explained that if the iron bars were small and sunk in the concrete he would not break the concrete to get them, but he would throw them away„ However, he said that some of the iron bars were still sunk in the concrete and some were loose. He concluded that the works there were not concluded, [*612] but the workers left as they were ordered somewhere else. Until today they work in the area,

P.W.2, Michalis Ioannou, said that on

29.5.82 he saw two persons in the area of the demolished houses cutting iron bars using a welding machine and loading them on a car. The iron bars they were cutting were from the bars put aside by the government workers, and that they were not sunk in the concrete.

P.W.3, P.C. 2911 Andreas Georghiou, said that on information he visited the Accused who admitted that he took the iron, bars as be thought that they were valueless and abandoned.

The Accused gave evidence under oath. He said that on 29.5.82 he noticed that certain houses were being demolished. He saw iron bars sunk in the concrete and as he deals in scrap iron he brought some tools and a welding machine and he freed the iron bars from the concrete breaking the concrete and cutting the iron bars using the welding machine. The time was 12 noon. - When he finished he loaded the -iron bars on his car and took them to the yard of his coffee-shop. He alleged that he-only took iron bars which were sunk in the concrete and. that although he noticed some straight iron bars put aside, he did not touch them because they were of some value.

He said also that some 6 months ago in the same area he took iron bars from other demolished houses in the presence of the workers and nobody objected to it. [*613]

He said that hø knows that the rubble was used for levelling in the Limassol new port area.

Section 255(1) of Cap. 154 provides that a person who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking permanently to deprive the owner thereof, is guilty of stealing.

However, property that has been abandoned cannot be stolen. In R. v. White, (1912) 7 Cr.App.R. 266, it was held that if the property had been abandoned, the person charged has a right to have the jury directed that if he took it really believing that it was abandoned, he is not guilty of larceny.

In Ellerman's. Wilson Line. Ltd. v. Webster, (1952) 1 L1.L.R. 179, the finding of the Court of first instance that the accused had no felonious intent and, that he honestly believed, that the property he took was abandoned property, was not disturbed.

Lord Goddard, C.J., pointed out at p.180 that if the property had been abandoned a person cannot be charged with stealing abandoned property, but it ought, of course, to be abandoned in the sense or under circumstances which would 3how that the owner had definitely abandoned it and did not intend to retrieve it. [*614]

However, it must be noted that the Court did not interfere with the facts as found by the Magistrate, although it emanates from the words used that the Court did not agree entirely with the findings of facts.

Lord Goddard concluded:

"The respondent was a very fortunate man, and I hope that other lightermen at Hull will not think that they are entitled to take up every— thing that they may choose to consider to be unconsidered trifles in the bottom of a lighter or ship, or they may very likely find, if they do, that they will be convicted of stealing. If the respondent had been convicted of. stealing in this case it certainly would not have been any surprise; the surprise is that he was acquitted".

In R. v. Woodman. (1974) 2 All E.R. 955, the accused took some scrap metal from a disused factory belonging to English China Clays. Originally there had been a substantial amount of scrap metal on the site. This had been sold to a company which removed the bulk of it but seme was too inaccessible to be removed in such a way as to be attractive to the company: it was left on the site for perhaps a couple of years until the accused took it away.

The Court of Appeal held that there was ample evidence that English China Clays were in control of the [*615] site and, therefore,

in control of articles which were on the site, in spite of the fact that they were not aware of the existence of the scrap.

Lord Widgery, C.J., said at p.957:

"The fact that it could not be shown that they were conscious of the existence of this or any particular scrap iron does not destroy the general principle that control of a site by excluding other from it is prima facie control of articles on the site as well".

In Williams v, Phillips. Roberts v, Phillips, (1957) 41 Cr.App.R. 5, dustmen employed by a corporation were convicted by justices of stealing goods from dustbins collected in the course of their duties. The Divisional Court held that refuse put in a bin was not abandoned. It was the householder’s property until it was taken away, when it became the corporation’s property.

In Hibbert v. Mckiernan. (1948)

2 K.B. 142, Hibbert made a practice of trespassing on golf-links looking for lost balls, which he appropriated. He knew that the golf club objected to this practice, and had put up notices forbidding it. It was held that he was guilty of larceny of the balls, and that the property in the balls could be laid in the indictment as being in either the golf club or persons unknown.

The principle is that if somebody steals from [*616]

someone it does not matter from whom he steals. The ownership of the goods is an immaterial averment. When the owner loses an article, he does not abandon it by giving up the search and giving up hope of ever finding it again. It is still his. Even if he buries a thing in his land, obviously not wanting any one to have it, he does not abandon it, (See R. v, Edwards, (1877) 13 Cox, 384).

The Accused in the present case took the iron bars quite openly in broad day light but this fact alone does not turn the property into an abandoned one. There is undisputed evidence that the works at the demolished houses were not over but the workers: left the site because they were ordered to go elsewhere. There is also in evidence that a number of iron bars were separated because they were usable and that the foreman after

discovering that the bars were missing enquired with the warehouse in order to investigate whether the iron bars had been transferred there.

This means that the iron bars that were missing were of some value and that they would have been taken t-o the warehouse for safe keeping when the time was right,

I accept the evidence of P.W.1 as true and I find that the Accused did take from the site at least some of the iron-bars which had been separated. This is also confirmed by the evidence of P.W.2.

But even if we were to accept that

the Accused did not touch the separated iron bars but he only cut and [*617] removed some of the iron bars which were

sunk in the concrete, again the Accused should be found guilty of stealing.

One can hardly consider the rubble of the demolished houses as abandoned property. There was sufficient evidence as to the property of the rubble. The Accused knew that some of the material was usable. But even the materials which had no touchable value, such as the debris, could not be considered as abandoned because they were to be used for levelling certain areas in the Limassol new port.

Any property which can be used and which is actually meant to be used, even for a humble levelling, to my mind, cannot be considered as abandoned in the sense that the owner had definitely abandoned it and did not intend to retrieve it.

The Accused also alleged that he believed in the owner's consent because in the past he took some iron bars from Turkish houses demolished by Government employees in their presence without any objection on their part. Again such allegation does not exonerate the Accused from any criminal liability. No authorised person was present when the Accused was taking the iron bars and, of course, the owner was not given the opportunity to express assent or dissent.

I believe that the allegation of the Accused boils down to the belief that the owner would have given [*618] his consent had he been asked. But the Accused must believe not only that the owner would have consented to the appropriation but that he would have consented to the appropriation in the particular circumstances. And what were the particular circumstances?

The works at the site were not completed, the useful materials were not removed. I doubt whether, under the circumstances, the owner or its employees would have consented to the appropriation.

For all the above reasons, I find that the property which the Accused removed from the demolished houses cannot be considered as abandoned and, therefore, the Prosecution proved beyond any doubt that the Accused committed the offence for which he is charged.

Therefore, I find the Accused guilty as charged.

Accused found guilty as charged.