Ajax v Hales - [2001] NTSC 70

Ajax v Hales [2001] NTSC 70
PARTIES:AJAX, Rankin

v
HALES, Peter William

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA EXERCISING TERRITORY JURISDICTION
FILE NO:JA 12 of 2001 (20019167)
DELIVERED:  17 August 2001
HEARING DATES:  28 May 2001
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:
APPEAL
Justices – appeal against conviction – stealing – rule of recent possession.
Justices Act 1928 (NT)
MacDonald (1983) A Crim R 248, distinguished.
Neave v Trenerry, unreported, Bailey J, 3 February 1999, distinguished.
Trainer v The King (1906) 4 CLR 126, applied.
REPRESENTATION:
Counsel:
Appellant:S Johns
Respondent:  R Wild QC
Solicitors:
Appellant:NAALAS
Respondent:  DPP
Judgment category classification:      B
Judgment ID Number:  mar0123
Number of pages:  6

mar0123
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Ajax v Hales [2001] NTSC 70
No. 12 of 2001

BETWEEN:
RANKIN AJAX

Appellant
AND:
PETER WILLIAM HALES

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 17 August 2001)

Appeal against conviction. The appellant pleaded not guilty to three charges which were dealt with before the Court of Summary Jurisdiction at Darwin on 12 February 2001. They arose from the same set of circumstances which occurred on 1 December 2000. The appellant was found not guilty of unlawfully damaging the front window of the Foodstore, Stuart Park, and of unlawfully entering the building with intent to steal. He was found guilty, however, of stealing four bottles of wine, the property of Foodstore, Stuart Park.

The critical evidence before his Worship fell within a small compass. Mr Bool, who lived above the shop, heard a window being smashed and rang the police. The police attended at the scene. Mr Bool was unable to identify the appellant as the person he had seen and who had probably broken the window. No one identified the person or persons who entered the shop and stole the bottles. The appellant was found within about twenty metres of the shop with the four bottles in his possession. His Worship was unable to make a finding as to the length of time between the smashing of the window and the arrival of the police. Mr Bool put it at about one and half hours, but his evidence was not consistent with his statement to police at the scene shortly after the arrest of the appellant. The police would put that period at a much shorter time, but the evidence was not satisfactory. At the most, one and a half hours had elapsed. The window of the shop had been smashed.
The bottles found in the appellant’s possession were cold, condensation had formed on the outside of them and they bore price tags showing they came from a Foodstore shop. The owner of the Stuart Park shop, Mr Kourounis identified them as his property with reference to the labels and that they were missing from the refrigerator in the shop. Other property, casks of wine, were also missing but had not been found.
The grounds of appeal are:
Ground 1 -that the learned Magistrate erred in finding the appellant’s conduct:
(a)evidenced an intention to unlawfully appropriate the goods;
(b)could not be explained by an innocent motive.
Ground 2 -that the learned Magistrate erred in finding that the property could not have belonged to anyone other than the Foodstore Stuart Park.
Ground 3 -that the learned Magistrate erred in failing to exclude the reasonable possibility that the appellant happened on the goods innocently.
As to ground 3, no reason has been shown as to why his Worship should have had reasonable doubt as to the ownership of the property. He found it was owned as alleged.
The appellant was intoxicated when apprehended and gave no statement to the police then or later as to how he came by the bottles. He did say on a number of occasions at the time of his arrest, however, something about “those other blokes”. No evidence was given by the appellant or anyone else in his defence at trial.
His Worship correctly noted that it was a circumstantial evidence case and posed the question of whether there was any hypothesis consistent with innocence before he proceeded to make the finding of guilt. The major attention in address and in his Worship’s reasons was directed to the law relating to appropriation as defined in s 209 of the Criminal Code, and in particular, the reference to a person who has come by the property without stealing, and the exclusion from the definition of “stealing” of appropriation of property by a person with a reasonable belief that the property has been lost and the owner cannot be discovered. It is put by the appellant that his Worship erred in the application of those provisions to the circumstances of this case. But in my opinion it is not necessary to decide whether his Worship erred, let alone fatally erred in his reasons as to the finding of guilt in that regard.
This was not a case to do with the finding of property. There is nothing to suggest, beyond speculation, that the appellant had found the bottles. His Worship did not find that the bottles had been found, that was a possibility referred to as was that he was handed them by another person in unknown circumstances. In my opinion, cases to which reference was made in argument, MacDonald (1983) 8 A Crim R 248 and Neave v Trenerry (unreported, Bailey J, 3 February 1999) are not to the point.
The real basis upon which the presumption of innocence stood to be disturbed arose from the rule of recent possession, a matter only touched upon both before his Worship and before this Court in argument. It is explained in Trainer v The King (1906) 4 CLR 126 per Griffiths CJ at p 132 and O’Connor J at p 138:
“The question is really one of circumstantial evidence.
In any indictment for larceny you must prove first of all that the property has been stolen, and you must then prove that the person who stole it was the prisoner, or that it was stolen by some other person, and received by the prisoner knowing it to have been stolen. It is a well known rule that recent possession of stolen property is evidence, either that the person in possession of it stole the property, or received it knowing it to have been stolen, according to the circumstances of the case. Prima facie, the presumption is that he stole it himself, but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it, knowing that someone else had stolen it.
…
Before the accused can be convicted of larceny all those ingredients of the offence must be proved. Sometimes, but very seldom, the offence is made out by the evidence of witnesses who saw the taking. More generally it is by circumstantial evidence, applying the rule of presumption as to a false account of stolen goods given by the person found in recent possession of them. The rule has been laid down by many authorities, in many cases, and always in the same way. For instance, in 2 Russell on Crimes, 6^th ed., pp. 287, 288, it is stated in this way: - “With regard to the evidence in cases of larceny it generally consists (unless the prisoner is detected in the fact) of proof of the felony having been committed, and of the goods stolen having been found shortly afterwards in the possession of the prisoner; and upon such proof the general rule will attach, that wherever the property of one man, which has been taken from him without his knowledge or consent, is found upon another, it is incumbent on that other to prove how he came by it, otherwise the presumption is, that he obtained it feloniously.” That presumption may be either that the accused himself stole the property, or that he received it knowing it to have been stolen according to the form of the indictment. Blackburn J in R v Langmead Le & Ca, 427, at p 441, laid down the rule in the same way. He said: - “When it has been shown that property has been stolen, and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to the circumstances”.”
See also Bruce v R (1987) 74 ALR 219; R v Wanganeen (1988) 50 SASR 433 at 436.
Here there was evidence of ownership of the property and of stealing and the appellant was found in possession of it shortly thereafter. The rule relating to recent possession arose, and the appellant gave no explanation. His possession of the property was a circumstance in which an inference of a guilty mind could be drawn and it was for the prosecution to exclude all hypotheses consistent with innocence, even in the absence of an explanation. Failure to proffer an explanation does not give rise to the inference, it arises from the unexplained fact of possession.
His Worship’s finding that the appellant had not been proved beyond reasonable doubt to have entered the shop is not a finding that it was impossible for him to have stolen the goods either directly or as an aider or abettor. The prima facie presumption prevails, and it was open for his Worship to find the appellant guilty on that basis.
As the law relating to recent possession had not been fully developed before this court in the course of argument, the parties were invited to make written submissions in that regard. They have done so and I have taken them into account.
I am of the opinion that the point raised in the appeal might be decided in favour of the appellant, but dismiss it considering that no substantial miscarriage of justice has actually occurred (Justices Act, s 177(2)(f)).
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