Attorney-General's Reference No 1 of 2002
[2003] TASSC 25
•6 May 2003
[2003] TASSC 25
CITATION: Attorney-General's Reference No 1 of 2002 [2003] TASSC 25
PARTIES: ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2002
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 99/2002
DELIVERED ON: 6 May 2003
DELIVERED AT: Hobart
HEARING DATES: 12 March 2003
JUDGMENT OF: Underwood, Slicer and Evans JJ
CATCHWORDS:
Criminal Law - Evidence - Matters relating to proof - Prima facie case or case to answer - Generally - Whether on the evidence there was a case to answer.
Doney v R (1990) 171 CLR 207; May v O'Sullivan (1955) 92 CLR 654, applied.
R v Prasad (1979) 23 SASR 161, followed.
Aust Dig Criminal Law [442]
REPRESENTATION:
Counsel:
Applicant: T J Ellis SC
Respondent: R W Pearce
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Douglas & Collins
Judgment Number: [2003] TASSC 25
Number of Paragraphs: 37
Serial No 25/2003
File No CCA 99/2002
ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2002
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
SLICER J (DISSENTING)
EVANS J
6 May 2003
Order of the Court
Question referred for determination:
"Was the learned trial judge wrong in law in holding that the evidence was not sufficient to enable the jury to find that the accused was in possession of the stolen property?"
Answer:
"Yes"
Serial No 25/2003
File No CCA 99/2002
ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2002
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
6 May 2003
The issue
Pursuant to the provisions of the Criminal Code, s388AA, the Attorney-General for the State of Tasmania has referred the following question to this Court for determination:
"Was the learned trial judge wrong in law in holding that the evidence was not sufficient to enable the jury to find that the accused was in possession of the stolen property?"
The trial
Nathan Henry John Riley ("the accused") was charged with receiving stolen property contrary to the Code, s258(1), in that at Newnham on or about 15 May 2001, he did receive or have in his possession stolen property, namely two Stihl chainsaws, a quantity of Richmond Football Club clothing, a number of compact discs, a toiletry bag, three travel bags and confectionery, knowing it to be stolen.
The proceedings at trial took an unusual course. After the accused had pleaded not guilty, counsel told his Honour that it was proposed to put before the jury some agreed facts and a short video recorded interview between the police and the accused. It was then proposed to seek a ruling in the absence of the jury as to whether:
· the Crown can lead evidence that within the preceding three years the accused had been convicted of aggravated burglary (2), burglary (1) and stealing (3); and
· there was a case for the accused to answer.
The learned trial judge acceded to counsel's proposal and the trial commenced before the jury. The following statement of agreed facts was given:
"… it is an agreed fact that Dale Woodworth left his home at 7 am on the 15th May 2001. At that time his house was locked and secure. At approximately 3.20 pm on the same day, the 15th May 2001, Dale Woodworth returned to his home at Reatta Road, Trevallyn. Persons unknown had unlawfully gained entry to his home by removing a window screen in the kitchen. The house had been ransacked. The following items were stolen: 41 compact discs, 1 men's coat, 1 Richmond football jacket, 1 pair of Richmond football boxer shorts, 1 Richmond polo shirt, 1 floral overnight bag, 2 Richmond caps, assorted coins, a Richmond cool bag, Richmond stubby holder, a small blue pottery pot, a crystal lamp and 2 chainsaws, and the value of that property is one thousand eight hundred and twenty dollars.
At approximately 12.40 pm on the 15th May 2001 police were driving along Alanvale Road from George Town Road towards Thompson's Lane. Police observed a red Gemini sedan and attempted to intercept the vehicle whereupon the vehicle suddenly veered right and drove up a driveway at a house in 32 Alanvale Road. The accused who had been driving got out of the driver's seat and two males, Biden Bennett and Neil Hunter got out of the rear doors, a fourth man, later found to be a man by the surname Burgess, got out of the passenger side. All four males decamped the scene. The police inspected the vehicle. The vehicle was registered to the accused's girlfriend. Inside the Gemini the following items were found: the Richmond Football Club clothing, a number of compact discs, a toiletry bag, 3 travel bags, confectionery, and money amounting to about ten dollars as well as 2 Stihl chainsaws which were located in the boot of the car.
The accused, Riley, was apprehended a short distance away and arrested. Burgess was also arrested. Riley and Burgess were conveyed to the Launceston Police Station; the other two men could not be found. Riley participated in a video recorded interview following which he was charged and detained for court.
It's also an agreed fact that on or about the 30th October 2000 the accused had in his possession a stolen Yamaha motorbike, some binoculars, 2 Canon cameras and some firearms [and that] Dale Woodworth subsequently identified the property found in the Gemini as his."
The video-taped interview was played to the jury, who were then sent away while the learned trial judge heard legal argument. The next day, the learned trial judge ruled:
· the Crown cannot lead evidence that the accused had the specified prior convictions; and
· the accused had no case to answer.
The accused was duly acquitted by the jury on the direction of the learned trial judge. Relevant to this reference, the accused told the police during his interview:
· that he picked up the three men who were in his car when it was stopped by the police, "and they had bags and shit" (inferentially, a reference to the stolen property);
· he was offered $50 to drive the three men to Mayfield; and
· he knew the property that the three men had with them was stolen property because he knew they were "criminals".
The ruling by the learned trial judge
Overnight, the learned trial judge produced written reasons for the rulings that he made. See R v Riley [2002] TASSC 86. In those reasons, the learned trial judge referred to the definition of possession in the Code, s1, and said, at par6:
"… I hold that the evidence cannot support a finding of fact that the property was under his control. It was certainly in the actual possession and custody of the three passengers and in my view it was under their control and not his, notwithstanding that in a sense he had some power to control where it might be."
His Honour then discussed some authorities, including Moors v Burke (1919) 26 CLR 265, and Lowe v Goodluck 9/1985, and concluded at par13:
"In my view the evidence only supports a conclusion that possession remained with the passengers and that it had not passed to the accused. If manual control of the property had been handed over to the accused and say, he then carried it in the car without the passengers being present, he would undoubtedly have been in possession, but it is my opinion that the evidence that he transported the passengers with their stolen property from near the Trevallyn Bridge with the intention of carrying them, at their request, to Mayfield, did not amount to evidence that he either received the goods or that he had possession of them."
The reference
The first ruling that the learned trial judge was required to give concerned the admission of evidence. Although the Code, s258(3)(b), permitted evidence to be given of the accused's prior convictions for burglary and stealing, the admission of such evidence was subject to the conditions precedent prescribed by s258(4), viz:
"(a)7 days' notice in writing has been given to the accused of the intention to prove such fact; and
(b)evidence has previously been given that the stolen property in respect of which the accused is charged was found or had been in his possession."
It was common ground that the requisite notice had been given, but counsel for the accused submitted that the agreed facts and the video-taped interview of the accused did not constitute "evidence … that the stolen property in respect of which the accused is charged was found or had been in his possession".
To determine the admissibility of evidence of the accused's previous convictions, the learned trial judge was required to consider all the evidence, decide upon the credibility of that evidence and ask himself if it was more probable than not that the evidence given to the jury was evidence that the property set out in the particulars, or some of it, was found or had been in his possession. See Wendo v R (1963) 109 CLR 559, R v Hagan [1966] Qd R 219.
The second ruling that the learned trial judge was required to give involved a different question of law. If his first ruling was that the evidence was inadmissible because he was not satisfied on the whole of the evidence that it was more probable than not that it was evidence of the accused having been in possession of the stolen property, it would not necessarily follow that the second ruling must be that the accused had no case to answer.
To determine whether the accused had a case to answer, the learned trial judge was required to consider all of the evidence, and ask himself whether, as a matter of law, there existed a "defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty", per the Court, Doney v R (1990) 171 CLR 207 at 215. See also May v O'Sullivan (1955) 92 CLR 654; R v Prasad (1979) 23 SASR 161. With respect to a case in which the evidence is wholly, or substantially, circumstantial, King CJ put the matter this way in R v Bilick (1984) 36 SASR 321 at 337:
"On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?"
The learned trial judge did not articulate whether he gave different considerations to the two issues he had to determine. His reasons for judgment concluded:
"For these reasons the Crown will not be permitted to lead evidence under s258(3)(b) of the accused's prior convictions. Having regard to the discussion I had with counsel yesterday afternoon, in the course of their submissions, I also conclude that I should hold that the accused has no case to answer because a jury properly instructed could not reasonably find that he was in possession of the property."
The learned trial judge's ruling was based upon the proposition that the stolen property only came to be in the car because the other three men carried it there themselves in the circumstances that the accused explained to the police. In his reasons, the learned trial judge accepted that property could be in the joint possession of two or more persons, if such persons all had that property under their control. However, he concluded that there was no evidence that the accused had any control over the stolen property other than a right to exclude it from the car, or to require it to be put in a certain place in the car. He held that this right was not sufficient to constitute possession within the meaning of the Code, s258(1).
The terms of the reference are such that this Court is not required to consider the admissibility of evidence issue. With respect to the no case to answer issue, I am of the opinion that the learned trial judge fell into error. Upon this issue the learned trial judge was required to consider the Crown case at its highest. It was quite open for the jury to disregard everything that the accused said to the police except his admission that he knew the property was stolen. In such a circumstance, the circumstantial evidence that the jury could have accepted constituted, in summary form:
· the stolen property was in a vehicle that was registered in the name of the accused's girlfriend;
· the property had been stolen the same day as it was found in this vehicle;
· the accused was the driver of the vehicle;
· the accused drove the vehicle up a driveway when the police tried to intercept it and ran off;
· the accused acknowledged knowing the property was stolen;
· the accused had been in possession of other stolen property six and a half months prior to the occurrence of these events.
It seems to me that the foregoing was evidence from which a reasonable jury could have concluded that the only rational inference to be drawn was that the accused was in possession of the stolen property. In these circumstances, it is unnecessary to investigate and express any view upon the sometimes vexed question as to what constitutes possession in law. I would answer the reference by saying that the learned trial judge was wrong in law in holding that the evidence was not sufficient to enable the jury to find that the defendant was in possession of the stolen property.
File No CCA 99/2002
ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2002
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
6 May 2003
The reference originally made by the Attorney-General was in the following terms:
"Was the learned trial judge wrong in law in holding that the evidence was not sufficient to enable the jury to find that the accused was in possession of the stolen property?"
During the course of the hearing of the reference, it was refined to state whether:
"The learned trial judge was wrong in law in holding that the evidence was not sufficient to enable the jury to find that the accused was in possession of the stolen property?"
The difference in the formulation of the questions illustrates the difficulty in discerning what general principle of law the Attorney seeks to have clarified or determined.
Nathan Riley had been indicted for the crime of receiving stolen property contrary to the Criminal Code, s258(1). By agreement of the parties, a statement of agreed facts was read to the jury. The statement given was:
"… it is an agreed fact that Dale Woodworth left his home at 7 am on the 15th May 2001. At that time his house was locked and secure. At approximately 3.20 pm on the same day, the 15th May 2001, Dale Woodworth returned to his home at Reatta Road, Trevallyn. Persons unknown had unlawfully gained entry to his home by removing a window screen in the kitchen. The house had been ransacked. The following items were stolen: 41 compact discs, 1 men's coat, 1 Richmond football jacket, 1 pair of Richmond football boxer shorts, 1 Richmond polo shirt, 1 floral overnight bag, 2 Richmond caps, assorted coins, a Richmond cool bag, Richmond stubby holder, a small blue pottery pot, a crystal lamp and 2 chainsaws, and the value of that property is one thousand eight hundred and twenty dollars.
At approximately 12.40 pm on the 15th May 2001 police were driving along Alanvale Road from George Town Road towards Thompson's Lane. Police observed a red Gemini sedan and attempted to intercept the vehicle whereupon the vehicle suddenly veered right and drove up a driveway at a house in 32 Alanvale Road. The accused who had been driving got out of the driver's seat and two males, Biden Bennett and Neil Hunter got out of the rear doors, a fourth man, later found to be a man by the surname Burgess, got out of the passenger side. All four males decamped the scene. The police inspected the vehicle. The vehicle was registered to the accused's girlfriend. Inside the Gemini the following items were found: the Richmond Football Club clothing, a number of compact discs, a toiletry bag, 3 travel bags, confectionery, and money amounting to about ten dollars as well as 2 Stihl chainsaws which were located in the boot of the car.
The accused, Riley, was apprehended a short distance away and arrested. Burgess was also arrested. Riley and Burgess were conveyed to the Launceston Police Station; the other two men could not be found. Riley participated in a video recorded interview following which he was charged and detained for court.
It's also an agreed fact that on or about the 30th October 2000 the accused had in his possession a stolen Yamaha motorbike, some binoculars, 2 Canon cameras and some firearms [and that] Dale Woodworth subsequently identified the property found in the Gemini as his."
In addition, the jury saw and heard a videotaped recording of the interview between the accused and investigating police. During that interview, Riley claimed that he had been driving his vehicle at about 1pm when he:
"… just picked a few blokes up and they had bags and shit??? Just giving them a lift somewhere
…and went through town, past the college and along the highway past Macca's??? and youse were there."
He claimed that he did not know the identity of the three men he had picked up but that he had fled the car upon interception because he was a disqualified driver.
In response to questions concerning knowledge of the status of the property and motive, he said:
"Yeah I knew??? They had stuff???"
and
"… they just said, pulled up and said, one put his head through the door and said give you $50 bucks for taking me??? to Mayfield."
He told police that the men were carrying bags but had not seen the contents although he had seen the chainsaws which had been placed in the boot of his vehicle. He further claimed that none of the men had told him that the items had been stolen, responding:
"They didn't say nothing about stolen stuff."
He altered his original denial that he knew the identity of the passengers and admitted to knowing two, but in response to the question:
"… And those people have all been involved somewhere along the line, to your knowledge, in burglaries and stealings and so forth, somewhere along the line"
stated:
"No, I don't think so."
The following exchanges represent the crux of the Crown's case (apart from the surrounding circumstances of presence, flight, etc) as to knowledge:
"… Now you said before you knew this was stolen stuff
??? I was what?
You knew this was stolen property. There was stolen property in your car, you said you
Yeah, I know it was stolen
Well, how did you know it was stolen
I didn't know it was stolen. But I just assumed that there was shit and they're crims, so
Right, so it was shit and they are crims, is that you what you're saying? So you knew they were criminals
Yeah
What do you class as a criminal
Um, Chris steals stuff I think"
The learned trial judge was asked to rule on two questions, namely whether:
(1)The Crown could lead evidence that within the preceding three years the accused had been convicted of crimes of burglary and stealing.
(2)The accused had a case to answer.
The two questions were interlinked. The prosecution was relying on the provisions of the Code, s258, for the admission of the evidence of prior convictions. That section relevantly provides:
"258 ¾ (1) …
(2) …
(3) In any proceedings under this section ¾
(a) the fact that the accused had in his possession other stolen property which had been obtained as aforesaid within 12 months preceding the date of his alleged crime; and
(b) the fact that within 3 years preceding his being charged with the crime the accused had been convicted of a crime under any of the provisions of chapters XXIV to XXVII or of this chapter,
may be given in evidence against the accused in support of the averment of guilty knowledge.
(4) The facts mentioned in paragraph (b)of subsection (3)shall not be admissible unless ¾
(a) 7 days' notice in writing has been given to the accused of the intention to prove such fact; and
(b) evidence has previously been given that the stolen property in respect of which the accused is charged was found or had been in his possession."
The learned trial judge was required, before admitting the evidence, to determine whether the stolen property was:
"found or had been in [the accused's] possession."
The Attorney-General does not seek an answer to the question of whether the learned trial judge was correct in his determination of the first question. Yet a finding that as a matter of fact the accused was not in possession of the property might impact on the second question, namely whether there was a case to answer. This issue is not encompassed in the reference.
The learned judge dealt with the two questions in the one ruling. He determined that:
"… the evidence cannot support a finding of fact that the property was under his control. It was certainly in the actual possession and custody of the three passengers and in my view it was under their control and not his, notwithstanding that in a sense he had some power to control where it might be.
…In my view the evidence only supports a conclusion that possession remained with the passengers and that it had not passed to the accused. If manual control of the property had been handed over to the accused and say, he then carried it in the car without the passengers being present, he would undoubtedly have been in possession, but it is my opinion that the evidence that he transported the passengers with their stolen property from near the Trevallyn Bridge with the intention of carrying them, at their request, to Mayfield, did not amount to evidence that he either received the goods or that he had possession of them."
The questions were different. That concerning the admissibility of the evidence required him to assess the evidence and decide whether, on the balance of probabilities, it was more probable than not that the evidence established that the accused had been in possession (Wendo v R (1963) 109 CLR 559). He did not so find, and declined to admit the evidence. The second question was whether the remaining evidence could, as a matter of law, properly sustain a conviction (May v O'Sullivan (1955) 92 CLR 654; R v Prasad (1979) 23 SASR 161; Ling v R [1981] Tas SR 250).
His Honour, in answering the two questions, considered the questions of control, joint control and common intention, relying on cases such as Lowe v Goodluck 9/1985; Moors v Burke (1919) 26 CLR 265; Weston v Smith [1963] Tas SR 27 and R v Wiley [1850] 2 Dea 37: 169 ER 408. I suspect that it is this issue, namely the ambit of joint possession, which the Attorney seeks to raise in the reference.
The Code, s388AA, permits the Attorney-General to:
"… refer any question of law that has arisen at the trial to the Court of Criminal Appeal for determination by that Court."
The terms of the reference do not themselves identify the precise questions to be determined and their reformulation as already stated, illustrates the problem.
As originally formulated, the point of law to be determined was whether the learned trial judge was entitled to hold that the accused was not in possession of the stolen property. In relation to the question of admissibility of evidence, it is likely that he was so entitled as he was both the fact-finder and determiner of the issue raised by the operation of the Code, s258(4)(b).
The question as reformulated has a number of components which can be identified as:
(1)Whether a finding of fact made on a voir dire has any import on a concurrent "no case" application.
(2)Whether the learned trial judge was wrong in not addressing different tests governing the separate application and the issues raised by those applications.
(3)Whether his analysis of the remaining evidence permitted a "no case" direction.
(4)Whether a finding that "taken at its highest" the evidence is not capable of sustaining a verdict of guilty is itself a finding only susceptible to review if such a finding was not open to the trial judge.
(5)Whether the learned trial judge applied the wrong test in his determination of the issue of joint control.
(6)Whether, if he was correct in his determination of the third question, he was correct in directing the jury to return a verdict of not guilty.
The question as posed requires determination of a variety of issues not sufficiently identified and argued at trial. If the second question is posed, the likely answer is that his Honour did not fully address the issue. If the fifth issue is answered in the affirmative, then the answer to the reference would be that there had been error.
In my opinion, no sufficient question of law is raised in the reference so as to permit proper determination by the Court of Criminal Appeal.
File No CCA 99/2002
ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2002
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
6 May 2003
I agree with the reasons for judgment of Underwood J and the answer he proposes.
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