Audsley v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0041

IAN DAVID AUDSLEY	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE JA, KAYE and LASRY AJJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 February 2013
DATE OF JUDGMENT	7 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 41
JUDGMENT APPEALED FROM	DPP v Audsley (Unreported, County Court of Victoria, Judge Bourke, 14 October 2011)

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CRIMINAL LAW − Handling stolen goods − Appellant convicted of five counts of handling stolen furniture items − Allegedly stolen items disposed of before trial − Whether convictions unsafe because of unavailability of furniture − Whether trial judge failed to properly direct jury as to the elements of handling − Whether the trial judge was required to direct the jury that the appellant have exclusive possession of the furniture − Whether trial miscarried by the introduction, in re-examination, of evidence earlier ruled to be inadmissible − Whether verdicts unsafe and unsatisfactory − Crimes Act 1958 (Vic) s 88.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr G J Traczyk	Simon Parsons & Co
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

For the reasons given by Kaye AJA, I agree that the appeal should be dismissed.

KAYE AJA:

The appellant was convicted, by a jury in the County Court, of four counts of handling stolen goods, contrary to s 88(1) of the Crimes Act 1958. He was sentenced, on each count, to a community corrections order. He appeals, by leave, against the convictions.

At the time of the offences, in 2008, the appellant resided, with his long time partner, in a house at the rear of a five acre property at 95 Noaki Street, Pearcedale. His son, Brett Audsley, and his family, lived in a house near the front of that property. A large shed was located on the property close to the house in which the appellant resided, and it contained a number of items including machinery and furniture. Both the appellant and his son had access to the shed.

Shortly after 7.00 am on 3 March 2008, members of Victoria Police executed two search warrants at the property. One search warrant was directed at the appellant, and one at Brett Audsley. Various items of furniture and property were seized in the course of the search. The items, which were relevant to the counts upon which the appellant was convicted, were located in the appellant’s home, in the shed, and on the tray of a truck parked in the driveway near the appellant’s house.

The police took the items, which had been seized, to the Frankston Police Station. Having observed the label on an item of furniture, the informant contacted Saywell Group Pty Ltd (‘Saywell’). Mr David Kelly, the managing director of that company, went to the police station and inspected the items. He formed the view that the furniture had been imported by Saywell. Mr Kelly then returned to Saywell’s offices, and made inquiries, which led him to consider that at least some of

the items, which he had observed at the police station, had been stolen from the Saywell warehouse.

Ten days later, Mr Kelly, by arrangement with the police, collected the furniture which had been identified by him, and conveyed it to Saywell’s warehouse. He made a list of the items, which he collected from the police, and reviewed electronic stock records kept by Saywell.

Subsequently, in December 2009, Saywell went into liquidation. The liquidator took possession of all of the records of the company. They were not available for production at the trial. In addition, the liquidator sold the seized furniture, and it was also not available at the trial. As a result, at trial, the prosecution was substantially, if not totally, reliant on the evidence of Mr Kelly to establish the ownership by Saywell of the property, which was the subject of the counts on which the appellant was convicted, and also to establish that that property had not been lawfully acquired from Saywell at the time at which that property was located at the Pearcedale property.

The appellant was charged with 15 counts of handling stolen goods, and with six counts of dealing with the proceeds of crime. The proceedings were commenced in the summary stream of the Frankston Magistrates’ Court. The appellant elected to have the matters heard in the County Court. At the trial, the appellant did not dispute that the police had found the goods at various locations at the Noaki Street property. The principal issues at trial were, first, whether the goods were stolen, secondly, whether the appellant had handled them, and, thirdly, if the appellant had handled the goods, whether he knew or believed them to be stolen.

At the conclusion of the prosecution case, the trial judge directed that the appellant be acquitted on ten of the counts of handling stolen property, and on all six counts of dealing with the proceeds of crime. The appellant elected not to give evidence. The jury returned a verdict of not guilty on count 11, and verdicts of guilty on counts 5, 13, 14 and 15.

The items, in respect of which the appellant was convicted, were:

•Count 5 – a sofa, located in the living room of the appellant’s home;
•Count 13 – a sofa, wrapped in plastic, located in the shed near the appellant’s home;
•Count 14 – a wooden sideboard/cabinet, located in the same shed near the appellant’s home;
•Count 15 – thirteen boxes of assorted furniture, located on the back of a truck parked in the driveway at the appellant’s home.

Grounds of appeal

The notice of appeal contains five grounds of appeal. A sixth ground (contained in the notice of application for leave to appeal against conviction) was not pursued on appeal. The five grounds were:

(1)The appellant was denied the right to a fair trial by the loss or destruction of, or failure to retain, the property the subject of the counts. That ground of appeal was only pursued in relation to the appellant’s conviction on counts 5 and 14.
(2)The trial judge failed to properly direct the jury as to the elements of handling.
(3)The trial judge failed to adequately relate the law to the evidence. This ground was abandoned on the hearing of the appeal.
(4)The trial miscarried by the introduction of inadmissible evidence.[1]
(5)The verdicts are unsafe and unsatisfactory.
[1]Leave to appeal in respect of Ground 4 had been confined to Counts 5 and 14; but the same arguments were applicable to Counts 13 and 15.

The course of the trial

At the trial, the prosecution called four police witnesses (including the informant) who were involved in the search of the Noaki Street property, and Mr Kelly. The appellant did not give evidence, or call any evidence on his behalf.

The police evidence may be summarised shortly. Detective Sergeant Wells was part of the team which had executed the search warrant at the appellant’s home. He described the property as a rural property of about five acres, with two or three dwellings, and some machinery sheds on it. On an aerial photograph, he identified the driveway, and described the position of the flat tray truck in the driveway near the appellant’s dwelling. A book of photographs, taken of the items which were seized, was tendered in evidence as exhibit B. (Each photograph was numbered so as to correspond with the number of the charge to which it related). Sergeant Wells gave some evidence concerning the modular lounge, which was the subject of charge 5.

Detective Senior Sergeant McKenzie also gave evidence as to the seizure of the lounge suite (the subject of charge 5) from the lounge room of the appellant’s house. In cross examination, he agreed that, normally, items, which are seized, are retained for trial. In the past, on occasions, goods would be returned to an owner, but that was not the normal procedure. Sergeant McKenzie did not see the ‘Saywell’ logo on any of the items which he located.

Detective Senior Constable Mark Patrick also gave evidence concerning the search. He identified the Isuzu truck, which had a number of packaged items on its tray. He agreed that some areas of the property were accessible by other people on the property, for example, the appellant’s son. He agreed that the large shed was heavily stocked.

The informant, Detective Senior Constable Bernard Dowling, identified the white Isuzu truck and the boxed furniture on the aerial photograph. He stated that, apart from the house in which the appellant resided, there were two other houses on the property. One appeared to be empty and in a state of partial renovation. Senior Constable Dowling stated that he believed that the lounge suite, found in the interior of the appellant’s house, was lifted in his presence, and he saw a label under it. He confirmed that all the items, found at the search, were taken to the Frankston Police Station, and that they were returned to Saywell on 13 March. He said that it was common to return such items.

In cross-examination, Senior Constable Dowling stated that he had, on previous occasions, returned items, that were the subject of handling charges, before trial. However, he could not recall on how many occasions he had done so. He agreed that, in this case, when he had returned the items to Saywell, he had not taken a statement from Mr Kelly, and he had not made a note of what Mr Kelly had said to him. He returned the items, because he was satisfied that Mr Kelly owned them. Senior Constable Dowling was unable to explain why there were no photographs of labels which he saw on the furniture. He disagreed with the proposition, put to him in cross-examination, that there were no such labels on the furniture. He agreed that he did not make any note of the labels at the time. He said he had charged the appellant on 3 March 2008, and Mr Kelly’s first formal statement was taken in February 2009. He said that he asked Mr Kelly for the electronic records on more than one occasion, and he was told that they would be supplied to him.

Evidence of David Kelly

The evidence of David Kelly was critical to the three principal issues in the trial. It is necessary to summarise his evidence in a little detail.

Mr Kelly stated that Saywell imported furniture and distributed it to about 500 retailers in Australia. Saywell maintained an Attache accounting system to record the transactions of the business. When stock was delivered to Saywell’s premises, it was recorded on that system. When a retailer placed an order with Saywell for the stock, the order was entered into the accounting system, which generated a picking slip. That slip was used by the warehouse to collect and deliver the goods to the dispatch area. It was also used to generate an invoice and an adhesive shipping label, which was stuck on the goods which were sold. When items of furniture were sold, they were covered in plastic wrapping.

Mr Kelly stated that on 3 March 2008 he was contacted by the police. He attended Frankston Police Station, and formed the view that the furniture, which he inspected there, had been imported by Saywell. He described the items of furniture, which he observed at the police premises. He said that he looked at the labels underneath the sofas, and that he had no doubt that the items, which he saw at the police station, had been imported by Saywell. He stated that Saywell had the exclusive right to import, from China, the items which it sold.

Subsequently, by arrangement with the police, Mr Kelly collected the furniture and took it to the Saywell premises. There it was unloaded and unwrapped. Mr Kelly made a record of the items, which he received back from the police.

The item, which was the subject of charge number 5, was a cream coloured lounge chair. On his list, Mr Kelly described it as ‘2206 sofa, 10/42 putty’. He explained that the first set of numbers (2206) referred to the model, the number 10 referred to the quality of the leather, and the number 42 referred to the colour of the furniture, which was very uncommon. Mr Kelly said that the item was second hand, having been returned to Saywell under a warranty claim. The sofa was a design which was exclusive to Saywell. It was a ‘one off’ design, being the subject of a special order from the Harvey Norman store in Bundall on the Gold Coast. Mr Kelly referred to the Saywell return authority (exhibit C), which evidenced the return of the furniture, from Harvey Norman to Saywell, on 28 June 2007. He said that that document related to the sofa, which was depicted in the photograph, which was taken of the item at the police station.

Mr Kelly stated that the sofa could be disassembled into three pieces. Saywell already had one section of the couch in its warehouse. An extensive search had been undertaken for the missing two sections, and they could not be located. When the couch (consisting of two sections) was returned by the police to Saywell, it matched the single piece which was already in the warehouse. Mr Kelly indicated that the match was significant, first, because the item was a ‘one off’ in terms of its colour, and also because it had been returned under warranty, and the wear and tear to it was consistent in each of the three pieces.

Mr Kelly stated that Saywell conducted two warehouse sales each year, one in June, and one in early January. Harvey Norman had returned the couch on 28 June 2007, after the mid year sale. It was possible that the couch could have been sold in the January 2008 sale, but it would not have been sold without the third piece. If that had occurred, Mr Kelly would have been told.

The subject of count 13 was a two piece lounge suite. The model number was 2796. The other identifying number was 1033, the number 10 denoting leather, and the number 33 denoting the colour (cream). The couch was a three seater, in two pieces. It was depicted in photograph number 13.

Mr Kelly produced an invoice, which showed that Saywell had sold the sofa to Robertsons Furniture in Horsham on 14 August 2007. He produced a credit adjustment, which indicated that the same sofa had been returned to Saywell, as a warranty claim, on 31 January 2008. On its return, the letter ‘Z’ was inserted in front of the model number. The return authority indicated that the item had been returned, because the top coat had come away. Mr Kelly stated that Saywell had only ever sold one piece of that particular sofa, and that it was a one off. He said the writing on the plastic wrapper around the sofa, as depicted in photograph 13, demonstrated that the sofa was the item which had been returned from Robertsons Furniture at Horsham. The particular photograph (photograph 13.1) had the product number on it, and Saywell had only sold one such item.

Count 14 related to a Henley sideboard, which was a two door, three drawer wooden cabinet. Mr Kelly stated that the Henley sideboard had been a popular model, but that Saywell had discontinued the line about twelve months before March 2008. After it was discontinued, Saywell still had three Henley sideboards in the warehouse. They were a bit of a ‘celebrity item’, because Saywell was unable to sell them. At the stock take in December 2007, there were still three of them, and Mr Kelly saw them there. After 3 March 2008, Mr Kelly checked how many Henley sideboards were in stock, and there were only two. If, between December 2007 and March 2008, a Henley sideboard had been sold, it would have been brought to his attention, because it would have been a cause for celebration.

Charge 15 related to a boxed Castle Cove bed set. Mr Kelly said that Saywell had started to trade the Castle Cove line in January 2008, and the first shipment of it was received at the warehouse on 25 January 2008.

The Castle Cove items, inspected by Mr Kelly, were contained in boxes. There were no shipping labels on any of those boxes, and there was no evidence of labels ever having been fixed to them. If the items from the boxes had been sold, such a label would have been put on them. Mr Kelly gave some detailed evidence about each of the items. He said that there were pieces of granite in one of the boxes (depicted in photograph 15.10), which were a part of the Henley style sideboard. Photographs 15.11 and 15.12 related to two pieces, which made up the Arctic television stand. Saywell received its first shipment of goods from the Arctic range on 28 February 2008. Mr Kelly referred to a document entitled ‘Supply of Goods Received Note’, which recorded that the Arctic TV unit was first received at the warehouse on that date. He stated that no sale of any Arctic television stand had been made by Saywell, after it arrived and before 3 March 2008. Saywell had the exclusive right to import, and sell, the Arctic television unit.

Mr Kelly stated that he would have expected that there would have been sales of the Castle Cove items, which were imported in January 2008, before 3 March 2008. However, the Castle Cove items, which were seized, were the whole range of the furniture, which was imported by Saywell and sold in the Castle Cove range. It would have been very unusual for a complete set of a new line to have been sold, and if that had occurred, it would have been drawn to his attention. He said that the last items in charge 15 (five outdoor cushions) had labels describing them as Saywell products.

Mr Kelly was cross-examined at length, and in detail. I shall return to some aspects of the cross-examination later, when considering the first ground of appeal. However, the following summary of the cross-examination is sufficient for present purposes.

Mr Kelly stated that Decoro of China was the main supplier of furniture to Saywell until 2008. Saywell had the exclusive right to import the Decoro products. The items, which were the subject of counts 5 and 13, were Decoro products. When Mr Kelly inspected the products at the police station, each of those items had the Decoro label on them.

Mr Kelly stated that Saywell kept very detailed accounting records of all stock, including sales records, and a stock ledger. He agreed that Saywell had had a great volume of accounting records, which would have established conclusively whether the items, which were the subject of the charges, were in Saywell’s warehouse, and whether they had left the warehouse for a legitimate reason. Mr Kelly stated that Saywell did a physical stock take every six months to reconcile the stock ledger. The records of Saywell would have demonstrated when a particular item came into the warehouse, and when it went out of the warehouse. Some of those records had been tendered, but some were not available, because they were kept on a file server which had been sold after Saywell went into liquidation.

Mr Kelly stated that after the police asked him whether he was satisfied that the stock, at the police station, was missing from Saywell’s warehouse, he did the appropriate checks and was satisfied that they were. At that time, he did not download hard copies of the relevant accounting documents, because the accounting systems were in place. When the business went into liquidation in December 2009, the case against the appellant was not at the forefront of Mr Kelly’s mind, and he did not think to print them off. Before the furniture was returned by the police, Mr Kelly did some checking of the records of the company. When the furniture was returned, Mr Kelly compiled a list of the furniture so returned. He used that list to reconcile whether the items, returned by the police, had been missing from Saywell’s stock. Mr Kelly stated that the items, returned by the police, were each distinctive, and he recognised them as Saywell products. After they were returned to Saywell’s premises, he checked them, and satisfied himself that they had not been sold by Saywell.

Mr Kelly was then cross-examined about each of the items, which were the subject of the charges. In respect of the item, which was the subject of count number 5 (the three piece cream coloured leather lounge suite), he said that under each piece of the lounge suite was a label with the number 2206. He said he saw the label when the furniture was returned by the police. He confirmed that, in his evidence, he had referred to the number 2206 as the model number, and the number 1042 as denoting that it was leather and that it was a particular colour. He agreed that, on a previous occasion (on a voir dire), he had stated that the number 2206 denoted the leather quality and the colour. He said that when he gave that evidence on the voir dire, he was confused by the cross-examination. Mr Kelly was cross-examined at some length concerning that inconsistency, and concerning the description of the colour of the furniture (putty) and the code which was used to denote that colour. He confirmed that the item at the police station (which consisted of two of the three pieces of the furniture) belonged to Saywell, because the third piece (which was still at Saywell’s premises) fitted those two pieces perfectly. He agreed that, in the Saywell return authority document (exhibit C), the item, returned from Harvey Norman in Bundall, was described as a four piece couch. However, he said that that was not an uncommon error in the trade. He said that the description was probably given by an employee of Harvey Norman to an employee of Saywell on the telephone.

Mr Kelly was cross-examined about some differences between the description of the item in exhibit C, and the item depicted in photograph number 5. He was also cross-examined about another document (a Harvey Norman credit claim) which contained a different description of the item returned by Harvey Norman to Saywell. Mr Kelly stated that the item was returned to Saywell by Harvey Norman on 28 June 2007. However, the records, which would have demonstrated that the items were still there in December 2007, no longer existed. In February 2008, two of Saywell’s employees told Mr Kelly that two pieces of the three piece item were missing. He said that that had not previously occurred at Saywell. Mr Kelly did not inform the police that two pieces were missing. He was cross-examined, at some length, concerning that aspect of his evidence.

Mr Kelly was cross-examined about the items, which are the subject of charge 13 (the lounge suite returned from Robertsons Furniture in Horsham). He stated that the documents, tendered to the court (exhibit D), showed that the furniture was sold to Robertsons Furniture on 14 August 2007. The credit note adjustment (in respect of the subsequent return of the item) was dated 31 January 2008. The product code on that document referred to the same couch. The prefix letter ‘Z’ denoted that the item was a ‘second’. Mr Kelly stated that the item could not have been sold in the January warehouse sale, because it had arrived back at Saywell’s premises after that sale had taken place. He was then shown the Robertsons Furniture return form dated 28 November 2007 (which was tendered as exhibit 7), which suggested that the item was returned in November 2007. Mr Kelly said that, nevertheless, he knew that the item was not sold in the January sale, because it was still listed in Saywell’s stock records when the item was returned by the police in March 2008.

Mr Kelly stated that each item, which was listed on the reconciliation which he performed at the time the goods were returned by the police, was missing according to the Saywell stock records. In other words, there was a discrepancy between what should have been in stock, and what was actually in stock. He said that when the goods were sold to Robertsons Furniture, the item was removed from the stock records. When they were returned, they were re-entered into the stock record with the ‘Z’ prefix. He explained that the delay between the physical return of the item, and the issue of the credit note, was probably because Saywell had not resolved the warranty claim with the customer until January 2008.

Mr Kelly was next cross-examined about the item in count number 14 (the Henley sideboard). He said that the item, depicted in photograph 14, was distinctively a Henley sideboard. It had distinctive handles and a distinctive pattern of paint, and there were some distinguishing manufacturing or design features. Mr Kelly stated that when the Henley sideboard was returned by the police, he had compared it with the other two Henley sideboards still in stock, and they were identical. Mr Kelly said that Saywell carried out stock takes twice each year, and that the last stock take was in December 2007.

Finally, Mr Kelly was cross-examined about the items, which are the subject of charge 15 (the Castle Cove bed set). In particular, he was cross-examined about one part of that item, the outdoor cushions, which were depicted in photograph 15.13. He said that the cushions were definitely stocked by Saywell. However, he agreed that there could be thousands of cushions of that type in Victoria at any time, and that it is the sort of cushion which could be brought in almost any shop.

In re-examination, Mr Kelly stated that when the police returned the items to Saywell, he checked the records in the computer system against the physical stock in the warehouse, to determine whether any of the items, matched any items which were missing in the warehouse. He said that in respect of each of the items returned by the police (except for the cushions, which were part of the items in count 15) he found a discrepancy, which correlated to the items returned to Saywell by the police.

Ground 1: The applicant was denied the right to a fair trial by the loss, destruction or failure to retain the property the subject of each of the counts

As I stated, the first ground of appeal was confined to the appellant’s convictions on counts 5 and 14.

The ground of appeal, under consideration, raises the issue whether the unavailability of the property, which was the subject of the counts on which the appellant was convicted, had such an effect as to result in a miscarriage of justice, in that the appellant was deprived of his right to a fair trial.

The cases, which are relevant to that issue, include decisions relating to whether an accused should have been granted a stay on the basis of the ‘missing’ evidence. When a trial judge considers an application for a stay on that basis, the judge is required to predict the potential likely effect of the missing evidence on the accused’s right to a fair trial. On the other hand, in this case – as is in cases involving appeals from the refusal of a stay – the court has the ability to consider the question in hindsight, namely, whether in the context of the trial which was conducted, the absence of the evidence which was unavailable resulted in a miscarriage of justice.

It is well established by the authorities that, in order that the appellant succeed on ground 1, he must demonstrate substantially more than the fact that the ‘missing evidence’ might have assisted him in his defence. In particular, the ‘missing’ evidence must be of such a nature that its absence, or unavailability, was likely to have had a significant impact on the fairness of the trial in which the appellant was convicted.

In Penny v R,[2] the appellant was convicted of the attempted murder of his wife. It was alleged that he had set fire to a rag, which he stuck into the petrol tank filler of the car driven by his wife. After the fire was extinguished, police officers found various tins, in one of which a spent match was floating, and a bottle containing a small quantity of methylated spirits. Those items were disposed of before trial. No tests were conducted by the police on the appellant’s clothing. It was alleged by the appellant that the photographs of the scene and the vehicle were inadequate. On appeal to the High Court, the appellant contended that the jury’s verdict was unsafe and unsatisfactory, because of the unfairness and incompetence with which the police had conducted their investigation. The High Court dismissed the appeal. In doing so, Callinan J (with whom McHugh, Gummow, Kirby and Hayne JJ agreed) stated:
[2][1998] HCA 51.

[17]There is no doubt that the police investigation was unsatisfactory in some respects. However these defects were fully exposed to the jury in cross-examination and the address to the jury by the appellant’s counsel. There was some reinforcement of the criticism of these defects by the accurate summary of the defence submissions to the jury by the trial judge.
[18]The appellant’s submissions on these contentions failed at the threshold. They failed because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a re-trial. But that will all depend on the facts of the particular case. …

…
…
[20]The submission (for the appellant) here fails for the further reason that there were numerous factual matters (apart from anything that may or may not have been learnt from a better investigation), which the jury were entitled to take into account to reach a guilty verdict. It could not be put by the appellant that had the investigation been conducted better there was a likelihood that evidence that might have exculpated the appellant would have been available.

A brief review of the authorities illustrates the principles stated by Callinan J in Penny’s case.

In R v Lord & Fraser,[3] the appellants were charged, on indictment, on one count of conspiracy to defraud and six counts of corruption. The case on the first count was that the appellants had conspired to defraud Lord’s employers by falsely inflating the price of compressors supplied by Fraser’s company to Lord’s employers, and by supplying compressors which were in a poor mechanical condition. There was a substantial delay between the commencement of the police investigation and the date on which the appellants were charged. In the course of the investigation, the police engaged an independent consulting engineer to examine the compressors and report on their condition. After doing so, the compressors were left exposed to the elements. As a result, they deteriorated to such an extent that it was not possible for a consulting engineer, engaged by the appellants, to make any useful examination of them. At trial, Judge Walker, of the Leeds Crown Court, stayed the first charge on the indictment, based on the delay in the prosecution, and the deterioration of the compressors, both of which had rendered a fair trial impossible.
[3][1983] Crim LR 191.

From the brief account of the judge’s decision in Lord v Fraser, in the Criminal Law Review, it is clear that the expert, called by the Crown, would have been central to the prosecution case, and that, without having had the opportunity to inspect the compressors, the appellants would not have been able to contest that evidence, or to adduce evidence to the contrary. As such, the deterioration in the condition of the compressors was likely to have had a significant effect in depriving the appellants of a fair trial.

In Duncombe-Wall v Police,[4] the appellant had been charged on information that he threatened to cause harm to his former wife. The prosecution case was supported by the evidence of the former wife and the son of the appellant. They gave evidence that, in the course of the incident, the son made one 000 call to police headquarters, during which the appellant grabbed the telephone out of his hand and spoke. On the other hand, the appellant’s evidence was that he made two calls to the 000 number, during the first of which his son interrupted him. After the appellant was charged, his solicitors requested the prosecution to supply them with the tapes of the telephone calls. Notwithstanding that request, the recordings of the telephone calls were deleted, when the tape, on which they were recorded, was re-used. The appellant unsuccessfully applied to the magistrate for a stay of proceedings and he was convicted. He successfully appealed to the Supreme Court of South Australia, which ordered that the proceedings against the appellant be permanently stayed.
[4][1998] SASC 6754.

In Duncombe-Wall, the prosecution case had depended almost entirely on the magistrate being satisfied as to the credibility of the wife and her son. The issue concerning the 000 calls was important evidence on the question of credibility of the wife and the son. If that evidence had been available, it would have had the potential to corroborate the appellant’s account of the telephone calls to the police. If his evidence had been corroborated on that matter, it would have meant that the evidence of the former wife and the son must be rejected. In that way, the ‘missing’ evidence fulfilled the tests postulated by Callinan J in Penny, namely, it was of such a character that it was likely that it might have exculpated the appellant, if it had been available.

In Wyatt v R,[5] the appellant was charged with digital rape. The doctor, who examined the appellant, gave evidence that, because of the state of the victim, traces of her blood could be expected to have remained under the nails of the appellant’s fingers, if he had performed the alleged act of sexual intercourse. On appeal to the Full Court of the Australian Capital Territory, it was contended that the convictions were unsafe and unsatisfactory, because of the failure of the police to cause material to be removed from the appellant’s fingers, and his fingernails, for scientific examination. That ground of appeal was rejected. Jenkinson J (with whom Wilcox J and Myles J agreed) held that there was no sufficient evidence as to what information might have been derived, had the doctor removed material from near and under the appellant’s nails. Nor was there any evidence as to whether such material might have remained on the appellant’s hands after he had washed them.[6]
[5](1990) 28 FCR 61.
[6]Ibid, 64– 65.

In Aydin v R,[7] the Court of Appeal reinforced the proposition that it is insufficient that the missing evidence might, or could, have assisted the accused; rather, it must be demonstrated that the fact of the missing evidence would result in a miscarriage of justice, by depriving the accused of a fair trial.
[7][2010] VSCA 190.

In that case, the accused was charged, in 2006, with an attempted rape which took place in September 1982. On that day, the complainant had stopped her motor vehicle, in order to assist another motorist. That motorist, rather than requiring assistance, forcibly pushed down the window of the complainant’s vehicle, entered the vehicle, threatened her with a knife, and attempted to rape her. She escaped. Fingerprints were found on the top of the driver’s window of the complainant’s vehicle. They were photographed and the image was retained. A police file was opened. The complainant made a statement. However, in 2002 the file was destroyed. Subsequently, the photographed fingerprints were matched, by a computer, with those of the applicant. The applicant unsuccessfully applied to the trial judge for a stay of the proceeding. The Court of Appeal dismissed the appellant’s interlocutory appeal. In doing so, Harper JA (with whom Buchanan JA and Redlich JA agreed) noted that what was important was the effect of the unavailability of the police file on the fairness of the trial. His Honour referred to the decision of the High Court in R v Edwards,[8] and stated:

In Edwards the Court thus stressed that it is not sufficient that the loss of relevant material could or might result in injustice or unacceptable lack of fairness; it must be shown that that would be the result. And the Court further stated that a permanent stay must not be granted unless the Court before which the application is made is ‘satisfied that the continuation of the proceedings constituted an abuse in an exceptional or extreme case’.[9]

[8][2009] HCA 20; (2009) 83 ALJR 717.

[9]Ibid [17].

The foregoing review of the authorities establishes the following propositions relevant to this appeal:

(1)In order for ground 1 to succeed, the appellant must demonstrate that the absence of the property, which was the subject of the charges on which he was convicted, was likely to have had a significant effect on his right to a fair trial.
(2)It is insufficient for the appellant to demonstrate that the evidence, if available, might have resulted in his acquittal on any of the charges.
(3)The effect, of the missing evidence, is not to be assessed in a vacuum or in isolation. Rather, it must be viewed in the context of the evidence which was in fact adduced, and in particular by considering whether, in light of both that evidence, and the missing evidence, the trial of the accused was fair.[10]

[10]See also R v Williams (2001) 1 Qd R 212, [7]; Thwaites v Western Australia [2004] WASCA 197, [64]–[66] (Templeman J).

Bearing those principles in mind, I return to the question posed by the first ground of appeal, namely, whether the unavailability of the furniture items, which were the subject of counts 5 and 14, had the effect that the trial of the appellant, on those counts, was unfair such as to constitute a miscarriage of justice. The principal submission on behalf of the appellant is that the failure, of the prosecution, to keep, or to properly identify the goods, deprived the appellant of the means to adequately challenge the evidence as to Saywell’s ownership of the items of furniture. Thus, in the context of the evidence which was available and which was led, the question is whether the appellant has established that it was likely that the furniture items, if available, had a significant effect on his right to a fair trial of the issue of Saywell’s ownership of the items, which were the subject of counts 5 and 14.

Before I attend to that question, I should emphasise that nothing in this judgment should be construed as my acceptance, or approval, of the fact that the furniture was returned by the police to Saywell, and became unavailable, in the manner in which it did in this case. At the time at which the furniture was returned to Saywell, the informant had not taken a statement from Mr Kelly, he had not taken any notes of what Mr Kelly stated to him, and he had not received copies of, or even sighted, the stock records of Saywell. The appellant had not made any admission to him in relation to any of the items of furniture.

Even if Mr Kelly had, by then, made a statement, and the police had received the stock records, it would have been inappropriate to return the furniture at that time. The furniture items were important exhibits in respect of criminal charges brought against Mr Kelly. As an accused facing criminal charges, the appellant and his legal advisers, were entitled to access to the exhibits for the purposes of inspection. He was also entitled to a trial in which the particular items, which were subject of the charges brought against him, were available as exhibits.

It must be acknowledged that the unavailability of the items of furniture was, to some extent at least, of some disadvantage to the appellant at trial. In particular, Mr Kelly gave evidence that at the police station he had checked the sofas, and had looked at the labels underneath them.[11] The fact that the sofas were not available, at least for inspection by the appellant and his legal advisers, meant that the appellant was unable to verify, or rebut, that assertion by Mr Kelly. However, to some extent at least, the disadvantage to the appellant, on that aspect of the case, was offset by the evidence of Detective Senior Sergeant McKenzie, in cross-examination, that he did not see the ‘Saywell’ logo on any of the items which he located at the Pearcedale property.
[11]T 488.

On the other hand, the disadvantage to the appellant, resulting from the unavailability of the furniture, was to a substantial extent balanced by corresponding disadvantage to the prosecution. If the furniture had supported Mr Kelly’s evidence, it would have been powerful evidence against the appellant. More importantly, the unavailability of the furniture items, and the absence of any stock records of Saywell, had the effect that the prosecution case was substantially, if not wholly, dependent on the credibility of Mr Kelly’s evidence, particularly as to the ownership by Saywell of the items of furniture. Unsurprisingly, counsel for the appellant, at trial, cross‑examined Kelly vigorously on his credit. On a number of occasions, he put to Mr Kelly that his evidence was self-serving and contrived, because Kelly knew he would be in difficulty, having disposed of the furniture items, if the prosecution case against the appellant did not succeed. It was put, on more than one occasion, that Mr Kelly was prevaricating as a witness, because he knew he had done the wrong thing by disposing of the furniture which had been returned to Saywell by the police. The informant, Mr Dowling, was also questioned vigorously, at the commencement of his cross-examination, on his decision to return the items of furniture to Saywell.

In addition, at trial, the absence of the furniture items did not leave defence counsel, at trial, empty handed in cross-examining Mr Kelly. In particular, counsel was able to attack Mr Kelly’s credit by comparing it with evidence which he had given, one month previously, on a voir dire, and also by comparing it with the three witness statements, which he had previously made to the police. Counsel had the photographs of each of the items in question, and there were some accounting documents available in relation to the items which were the subject of counts 5 and 13. The cross-examination of Mr Kelly at trial was lengthy, detailed and thorough. As I stated, the outcome of the case against the appellant was substantially dependent upon the jury accepting the credibility of Mr Kelly. Counsel for the appellant had much scope, which he properly exploited, to test the reliability of Mr Kelly’s evidence, both generally, and in relation to each of the charges brought against the appellant.

Further, in summarising counsel’s submissions in his directions to the jury, the trial judge outlined the central submissions made by counsel for the appellant in his final address as to the effect of the unavailability of the furniture. At the end of his charge, the trial judge gave specific directions to the jury as to the disadvantages to the accused resulting from the unavailability of the furniture. In particular, his Honour pointed out that the furniture could not be directly examined and identified as a Saywell product; that Mr Kelly could not be tested on his identification of the furniture in that way; that Mr Kelly could not be fully tested as to what he said the electronic records had stated; and that accordingly the prosecution case was heavily reliant on the credibility and reliability of Mr Kelly’s evidence. His Honour pointed out that the jury should take those matters into account, and that they should be considered in the light of the fact that there was no evidence of any specific burglary, theft or robbery involving any of those items. His Honour instructed the jury that it should carefully consider and scrutinise the evidence, particularly the evidence of David Kelly, taking into account the matters to which he referred.

Having made those general observations, I now turn to consider whether, as a result of the absence of the furniture, the appellant was deprived of a fair trial of the issue of the ownership of the furniture, in respect of the items which are the subject of counts 5 and 14.

In support of his submissions in respect of count 5, counsel for the appellant placed particular emphasis on some evidence given by Mr Kelly, in cross‑examination, in which, counsel submitted, Mr Kelly stated that the item seized by the police had the ‘Decoro’ label on it. Counsel submitted that the unavailability of the item, seized by the police, meant that Mr Kelly’s assertion could not be verified, or contradicted, by a physical examination of the item. However, on reading the transcript, I am satisfied that Mr Kelly did not state, in cross‑examination, that he had observed the Decoro label under the item which was the subject of count 5. Rather, in cross-examination, he stated that under each of the sections of the couch there would be a Decoro label, containing the model number, and the other details. However he said that he could not be sure whether the label had been removed or not. Further, and importantly, Mr Kelly did not rely on that fact in support of his claim that the item, the subject of count 5, was the property of Saywell.

Mr Kelly outlined two matters, on the basis of which he concluded that the lounge chair, the subject of count 5, was owned by Saywell. First, he was able to match the model number of that furniture (number 2206) and the colour and fabric code of it (1042) with the item which was the subject of return from Harvey Norman in Bundall, Queensland in June 2007. Mr Kelly stated that the sofa was a ‘one off’ in terms of its colour. He produced a copy of the original sales invoice to Harvey Norman, and the Saywell return authority. Pausing there, the absence of the item of furniture in question did not, in my view, unfairly disadvantage defence counsel in his ability to challenge that evidence. In particular counsel was able to, and did, cross-examine Mr Kelly concerning aspects of the documentation, and also as to different answers given by Mr Kelly on the voir dire in relation to the configuration of the model number and the colour and fabric code relating to the item in question.

The second aspect of Mr Kelly’s evidence, relating to the item which is the subject of count 5, was that the item, seized by the police, only consisted of two of the three pieces of the original item. Mr Kelly gave evidence that Saywell had in its possession the third piece, which matched the two pieces which were seized by the police from the appellant’s home. On this aspect of the evidence, the appellant suffered some disadvantage from the fact that his legal advisers and he were not able to inspect the third piece, retained by Saywell, to ascertain whether in fact it did match the item, consisting of two pieces, which had been seized from the appellant’s home. However, in the context of the prosecution case on the ownership of the furniture which was the subject of count 5, that disadvantage was not particularly significant. In particular, the absence of the items seized by the police, and indeed the absence of the piece which had been retained by Saywell, left the prosecution case dependent on the jury’s acceptance, beyond reasonable doubt, of the evidence of Mr Kelly. In that way the prosecution case was weakened, rather than strengthened, by the absence of the critical evidence. In the context of the manner in which the prosecution put its case in respect of the ownership of the items which are the subject of count 5, I am not satisfied that the appellant was deprived of a fair trial of the issue of the ownership of the item in question.

The evidence of Mr Kelly in respect of the Henley sideboard, which was the subject of charge 14, was in brief compass. Essentially, the prosecution case depended upon the evidence of Mr Kelly that Saywell had sold such sideboards, and that it had three left in its stock which it was unable to dispose of. As such, the prosecution case was, again, dependent upon the jury’s acceptance of Mr Kelly’s evidence. There was nothing about the way in which the prosecution put its case, on the ownership of the Henley sideboard, which placed the accused at a disadvantage arising out of the unavailability of that piece of furniture. Defence counsel cross‑examined Mr Kelly as to particular features of the item, as depicted on the photograph. On appeal, counsel submitted that, without access to the item itself, it was not possible to determine whether the sideboard, depicted in the photograph, was new or old, and whether it was a Saywell product.

In my view, it is a matter of conjecture as to whether the defence, or the prosecution, were at a disadvantage, in respect of that piece of cross-examination, arising out of the unavailability of the furniture. Certainly, the photograph of the sideboard is of good quality. However, in the context of the manner in which the prosecution put its case, I am not persuaded that the appellant was deprived of a fair trial in respect of the issue of the ownership of the item which was the subject of count 14.

For the foregoing reasons, the appellant has not established that the unavailability of the items of furniture, which were the subject of counts 5 and 14, was likely to have had a significant effect on his right to a fair trial of the issue of the ownership by Saywell of those items. It follows that ground 1 of the grounds of appeal fails.

Ground 2: trial judge’s directions on the elements of handling

The second ground of appeal is that the judge failed to properly direct the jury as to the elements of handling.

At trial, the prosecution’s case was that the ‘handling’, alleged against the appellant, was that he had come into possession of, and thus had received, the items which are the subject of the charges. On behalf of the appellant it is submitted that the trial judge was required to direct the jury that, in order to establish that form of handling, the prosecution was required to prove beyond reasonable doubt that the possession by the appellant of the items in question was to the exclusion of all others, save those acting in concert with the appellant. In support of that proposition, the appellant referred to Moors v Bourke,[12] R v Cottrell[13] and Kitchen v Cox.[14] The appellant submitted that the judge, in directing the jury on that element of handling, failed to direct the jury that the possession by the appellant of the items must have been to the exclusion of all others, and, in particular, of Brett Audsley.
[12](1919) 26 CLR 265.
[13][1983] 1 VR 143.
[14](1996) 85 A Crim R 828.

In response, it was submitted on behalf of the respondent that the appellant had not taken exception, at trial, to the aspect of the charge which is the subject of the second ground of appeal. Further, it was submitted that possession, for the purposes of s 88 of the Crimes Act 1958, need not be exclusive possession. The respondent further contended that the authorities, upon which the appellant relied, did not establish the proposition contended for by the appellant. It was submitted that, in R v Cottrell, the Court of Criminal Appeal approved the charge given by the trial judge in that case, to the effect that possession did not need to be exclusive, but that it may be shared with others. Counsel for the respondent sought to distinguish the decision of the High Court in Moors v Bourke and the decision of Hedigan J in Kitchen v Cox, on the basis that those cases were not concerned with the offence of handling, but, rather, with the summary offence of being in actual possession of property reasonably suspected of having been stolen. It was submitted that the element of ‘actual possession’, in the summary offence, is relevantly different to the requisite element of ‘possession’ in the offence of handling.

It is useful to determine, first, whether, and to what extent, the issue contained in the second ground of appeal was raised at trial, and, in particular, whether exception was taken on behalf of the appellant to the part of the judge’s charge, to which ground 2 is directed. For that purpose, it is necessary to set out, briefly, the course in which the matter of the relevant possession of the accused was raised in the course of the trial.

At the conclusion of the Crown case, it was submitted that there was no case to answer in respect of each of the charges on the indictment. In the course of that submission, defence counsel submitted that the concept of ‘possession’, in s 88, is the same as that considered by the High Court in Moors v Bourke. Thus, counsel submitted that, in order to prove possession of the items by the appellant, the prosecution must prove that at the relevant time the appellant had personal physical control of the items to the exclusion of all others.

The judge did not accept that submission. His Honour considered that possession, in the circumstances of the case, did not mean actual possession to the exclusion of all others, and that, on the facts of the case, the jury could conclude that the accused had the requisite access, custody and control of the goods to amount to possession of them.

At the conclusion of that ruling, counsel for the appellant sought clarification from the judge of the degree of control necessary to constitute possession. In particular, he submitted that the jury should be directed that if the evidence left open the possibility that someone, other than the accused – such as Brett Audsley – had placed the items on the truck or in the shed, the jury could not be satisfied beyond reasonable doubt that the appellant had sufficient control over the goods to be in possession of them. The judge, after some short discussion on that matter, stated that it might be better that it should be discussed further before addresses in the final charge. However, that does not seem to have had eventuated.

In directing the jury as to the elements of the charge of handling, his Honour stated:

The first element that the prosecution must prove is that the accused handled goods. It is in issue, this element is in issue in this case as you would realise. The word ‘handling’ is a technical, legal term which covers many different types of activities. In this case, it is alleged that the accused handled the goods by receiving them. A person receives goods if he or she takes them into his or her possession or under his or her control. A person receives … goods if he or she takes them into his or her possession or under his or her control. Thus, for this element to be met you must be satisfied beyond reasonable doubt that the accused took possession of the relevant items or goods or had control over the relevant item or items. Put another way, receive means obtain possession of them, of the good or item, in the sense that the accused either by himself or jointly with others acquired the capacity to control the goods and had an intention to exercise control over them. That is what possession means in the circumstances of this case, to receive means to take into possession in that way.

At the conclusion of the judge’s charge, defence counsel took a number of exceptions. One of the exceptions was that the judge had not stated to the jury, that there was no evidence as to who physically put the items on the truck or in the shed. The judge responded that it was clearly apparent to the jury that there was no such evidence, and that it would not be necessary for the jury to have that obvious point made to them. Counsel then stated that he took exception to the part of the judge’s charge, which dealt with the concept of possession. The judge referred to his earlier ruling. His Honour observed that the authorities on which the appellant had relied, and which contained a narrow definition of actual possession, were old authorities relating to a particular offence. Defence counsel responded that he wished to place on record his exception that the trial judge did not ‘clearly and unequivocally’ indicate to the jury that the prosecution was required to disprove, beyond reasonable doubt, that someone, other than the appellant (and in particular his son), had as much opportunity to deal with the goods in question. Counsel submitted that the judge should make it clear that, the jury could not convict the appellant, unless it could exclude, beyond reasonable doubt, the possibility that Brett Audsley put the items in the shed, or on the truck, without the knowledge of the appellant.

In those circumstances, it is clear that defence counsel did take an exception to the direction of the trial judge in respect of the degree and nature of the control over the furniture by the appellant which was necessary for the first element of the offence. It is, however, relevant to note the exception taken by defence counsel at trial was particularly directed to the proposition that the prosecution was required to exclude, beyond reasonable doubt, the possibility that some other person, in particular Brett Audsley, had possession or control of the items which were placed on the truck and in the shed. In particular, the point made by defence counsel was that the jury could not convict, unless it excluded the possibility that the appellant’s son had placed the furniture in the shed or on the truck.

The question, then, is whether the trial judge erred in not directing the jury, in express terms, that the first element of the offence of handling required the prosecution to prove that the accused had exclusive possession or control of the items of furniture.

In my view, the authorities, to which I shall refer, do not establish a universal requirement that, in each case, the jury must be directed that, in order to convict the accused, it must be satisfied that the accused had ‘exclusive possession’ of the property. Rather, in order to have received, and thus handled, the property, the accused must be proven to have been in possession or control of the property, either on his or her own, or jointly with some other person or persons. Where the evidence raises the possibility that some other person, or persons, may have had the capacity to take possession or control of the property, or to interfere with the accused’s possession or control of the property, it is necessary that the jury be instructed that, to convict the accused, it must be satisfied that the accused’s possession or control of the property was exclusive of that other person, or those other persons.

The appellant relied, principally, on the decision of the Full Court in R v Cottrell[15] in support of the proposition that the trial judge should have directed the jury that the prosecution was required to establish that the appellant’s possession of the items of furniture was to the exclusion of all others. In the leading judgment of the Court, Newton J (with whom Starke and Dunn JJ agreed) approved the direction by the trial judge to the jury that for the purposes of the first element of the offence of receiving stolen property, the possession of the property by the accused must consist of the ‘physical control of something coupled with an intention to exclude others from it’.[16]
[15][1983] 1 VR 143.
[16]Ibid, 147.

In Cottrell’s case, the issue was not whether Cottrell’s possession, or control, of the items, which had been stolen, was exclusive. In that case, the evidence established that Cottrell had caused the items, which had been stolen, to be left in the possession of one Sumner. On appeal, it was argued that the judge should have directed the jury that, in order that Cottrell have the requisite possession of the goods, he must be proven to have had a relationship with Sumner, which involved a high degree of control over Sumner, such as the relationship of master and servant. Newton J rejected that submission. In doing so, his Honour upheld the direction, given by the judge to the jury, that it was entitled to find that Cottrell was in possession of the stolen items, if it was satisfied that those items were in the actual possession of a person over whom Cottrell had control, so that the items would be forthcoming on Cottrell’s request.

Thus, the issue, which was determined by the Full Court in Cottrell, was not whether the possession or control of the property, by the accused, must be exclusive; rather, the issue on appeal was concerned with the control which the accused had of goods, which he had left in the physical possession of another person.

The other two authorities, relied on by the appellant, were the decision of the High Court in Moors v Bourke[17] and the decision of Hedigan J of the Supreme Court of Victoria in Kitchen v Cox.[18] In each case, the accused had been charged with the summary offence (which is now contained in s 26 of the Summary Offences Act 1996) of being found in possession of property reasonably suspected of being stolen. In Moors v Bourke, the High Court stated that, for the purposes of that summary offence, the prosecution must establish that the possession by the accused, of the property, was exclusive.[19] In Kitchen v Cox, Hedigan J followed that decision, and referred to the requirement that the prosecution prove that the accused’s possession of the goods in question was exclusive.[20]
[17](1919) 26 CLR 265.
[18][1983] 1 VR 143.
[19]270–271.
[20]332–3.

Those two cases may be readily distinguished from the present case. First, in each case, the statutory provision required that the accused be found in ‘actual possession’ of the property in question. In defining that phrase strictly, the court, in each case, took into account that the offence, with which the court was concerned, involved the summary arrest (or charging) of an accused based on the suspicion of a police officer, and that the offence involved a reversal of the onus of proof on the accused.[21]
[21]Moors v Bourke, 271; Kitchen v Cox, 330; see also R v Van Swol [1975] VR 61, 64–65.

Further, on the facts of each case, the question of the exclusivity of the accused’s possession, of the item in question, was necessarily relevant to determining whether the accused was in ‘actual possession’ of the item. In Moors v Bourke, at least one other person (a customs officer) had access, as of right, to the locker in which the property, suspected of being stolen, was placed.[22] In Kitchen v Cox, the goods were in a motor vehicle driven by the accused. The police officer formed the suspicion, that the goods had been stolen, after the accused had been arrested, handcuffed, and placed in the police vehicle. Thus, the issue was whether possession in the goods could exist in the accused, notwithstanding his situation in the police vehicle at the time at which the relevant suspicion was formed.[23]
[22]See also R v Maio [1989] VR 281, 286 (O’Bryan J).
[23]333.

It is clear from Cottrell’s case, and other authorities, that it is not necessary that an accused be in actual physical possession of the property. In such a case, the accused must be effectively in control of it. Conversely, the authorities, to which I shall shortly refer, make it clear that the fact that an accused has had a dealing with goods – such as by physically touching or lifting them – is not necessarily sufficient to constitute possession for the purposes of the offence. Those authorities shed some light on the degree to which the accused must have had a physical dealing with, or control of, the property, in order to have the requisite degree of possession for the purposes of s 88. As I have stated, a proper analysis of those authorities does not produce the consequence that, in each case, there is an inflexible rule that the accused must have had exclusive possession or control of the property. Rather, the cases, in which the requirement of exclusivity was considered to be necessary, involved factual circumstances in which some other particular person or persons had a degree of control, or possession, of the items in question.

The starting point is the decision of the Court of Exchequer in R v Wiley.[24] In that case, two thieves stole some poultry, which they placed in a sack. They then went, with the accused, into a stable belonging to the accused, and shut the door. The police entered the stable and found the sack on the floor. At trial, the two thieves were found guilty of stealing the poultry, and the accused Wiley was found guilty of receiving it. The Court of Exchequer (by a majority of eight, with four judges dissenting) held that the conviction was wrong, as there was no evidence that possession of the goods had passed from the thieves, as vendors, to the accused. Thus, Platt B stated:

It seems to me that the goods must have been in such a condition as to be under the dominion of the prisoner, and exclusive to that of the thief. If they are all deemed to be in joint possession of them, the possession of the thieves would be different in kind from that of the receiver … I think that the thieves here retained control and possession, and never intended to part with it until after their bargain was concluded.[25]

[24](1850) 2 Den 37; 157 ER 408.

[25]Ibid, 46; 411; see also at 50; 413 (Parke B).

The decision in Wiley has been cited, in textbooks, as authority for the proposition that the possession of the receiver must be exclusive. However, the decision did not establish that proposition as a universal requirement. Rather, on the facts of that case, the accused could only have had possession of the stolen property, if they had passed from the possession of the thieves, as the vendors of them, to the accused. It was in that sense that Platt B stated that the goods must be under the dominion of the prisoner ‘… exclusive of that of the thief’.

The same point emerges from a number of other authorities which relate to similar factual circumstances. In Seiga v R,[26] the accused was found with one Atherton in a van containing stolen goods. Atherton pleaded guilty to the theft of the goods. The accused was acquitted of that charge, but was convicted of receiving. The Court of Criminal Appeal of England noted that the acquittal of the accused, on the charge of theft, had the consequence that the jury had to determine whether, at some stage after the theft of the goods, the accused had come into the possession of them jointly with Atherton or on his own. The court held that the jury was not given adequate directions whether the goods were jointly in the possession of the accused and Atherton, or whether they had remained in the exclusive possession of Atherton.[27]
[26](1960) 41 Cr App R 26.
[27]Page 30.

In Hobson v Impett,[28] the accused had helped other persons to load stolen ingots into a motor vehicle by picking some of them up and carrying them to the car. The question before the English Court of Criminal Appeal, on a case stated, was whether the taking and carrying the ingots to the vehicle by the accused was sufficient possession to render the accused guilty of receiving stolen property. That question was answered by the court in the negative. The court emphasised that the critical question was whether the accused had taken the ingots ‘into his control’, or whether they remained under the control of the thief.[29]
[28](1957) 41 Cr App R 138.
[29]Ibid, 141.

In R v Riley,[30] the accused was intercepted driving a vehicle, which contained stolen property. There were three passengers in the vehicle. It was not the Crown case that the accused was a party to the burglary in which the property was stolen. Section 258(1) of the Tasmanian Criminal Code defined ‘possession’, for the purposes of the offence, as including having ‘under control in any place whatever … although another person has the actual possession or custody of the thing in question’. Crawford J held that the accused did not have a case to answer, because the jury could not reasonably conclude that the accused was in possession of the property, for the purposes of that provision. His Honour stated:

Although it can be said that there is evidence that the accused had some control over the stolen property in his car, in that he had the power to exclude it from his car or to require that if it was to be carried therein it was to be placed in a certain position, 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.[31]

[30][2002] TASSC 86.

[31]Ibid [6].

To the three authorities, to which I have just considered, may be added other decisions such as R v Watson,[32] R v Court,[33] R v Gleed[34] and R v Clark & Ryan.[35]
[32][1916] 2 QB 385, 388–9 (Lord Reading CJ).
[33](1960) 44 Cr App R 242, 245.
[34](1916) 12 Cr App R 32.
[35](1993) 31 A Crim R 295, 400–401.

In each of the cases, to which I have referred, the court focussed on the nature and extent of the alleged possession or control of the items, which were alleged to be received by the accused. Thus, where the alleged receiver was proven to deal with the goods in the company of the original thief, the receiver could only have the requisite possession or control if it had passed to the receiver from the thief. In that sense, the possession or control of the items in question must be exclusive of the thief.

Similarly, where, as in Cottrell’s case, the accused had caused the items in question to be placed with another, the accused must have control over the person to whom the items in question had been entrusted, so that the items would be forthcoming on the request of the accused. In that sense, the issue was not whether the receiver had an ‘exclusive’ control of the items; rather, the focus was on whether the relationship between the accused, and the person to whom the items have been entrusted, was such that the accused might, on request, recover possession of the items.

As a matter of common sense, the issue must necessarily also depend upon where the particular items in question are located, at the time at which it is alleged that the accused was in receipt of them. If the goods are in a public place, clearly the accused could not have the requisite degree of control or possession of them, unless he could in some way exclude others from taking possession of them (such as by locking them in a safe). On the other hand, if a farmer were to have stolen stock in his back paddock, the farmer would readily be understood to be in sufficient control or possession of the stock, notwithstanding that they could be removed, or escape, from the back paddock, if the fence with the farmer’s neighbour was breached.

In the present case, the items, which were the subject of count 5, were found in the appellant’s home, and the items, which were the subject of counts 13 and 14, were found in a shed close to his home at the rear of the block of land on which his home was located. The items, which were the subject of count 15, were on the tray of a truck parked close to the appellant’s home. It was not suggested in the evidence that any person had the ability to gain access to the shed, or the truck, other than the accused, and his son Brett Audsley. Thus, on the issue of possession or control, the critical question was whether the prosecution were able to exclude the reasonable possibility that Brett Audsley either placed the items in the shed or on the truck, or that it was he, and not the accused, who had control of the items in the shed or on the truck.

The directions given by the judge to the jury, on the first element for the offence of handling, must, therefore, be considered in light of that issue. In particular, the critical question is whether the trial judge sufficiently directed the jury that, in order to convict the accused, the jury must be satisfied beyond reasonable doubt that some other person, and in particular the accused’s son, did not have possession or control of the items which were the subject of the charges.

It is correct, as counsel for the appellant has submitted, that in the passage in which the judge specifically directed the jury as to the elements of the charge of handling, his Honour did not refer to that issue. However, shortly before giving those directions, the judge had given the jury extensive directions on the topic of inferences. His Honour reminded the jury that the case against the appellant was essentially circumstantial. He specifically directed the jury that, in order to convict the accused, the jury must exclude any reasonable hypothesis consistent with the accused’s innocence. His Honour then referred to the submission, on behalf of the accused, that the Crown had not excluded the explanation that someone else, for example the accused man’s son, had possessed the relevant items, and that, accordingly, the accused did not have the relevant items in his possession.[36] Having referred to that submission, and other arguments on the question of competing inferences, his Honour stated:[37]

It is raised (by the accused) that the relevant item or items were not received, that is, not taken into the accused’s possession, for example his son may have been in possession and not the accused in possession and that’s raised by the defence argument in relation to counts 11, 13, 14 and 15. Now, as to any or each such alternative explanation consistent with innocence raised, you do not need to be convinced that this was what happened, in order to find the accused not guilty. You must acquit the accused if you find that this explanation, the particular explanation, you are considering, to be reasonable in the light of the evidence. This is because the burden … on the prosecution to exclude all reasonable hypotheses which are inconsistent with the accused’s guilt. … If the prosecution cannot do so, you must give the accused the benefit of the doubt and find him not guilty.

[36]T 1401.

[37]T 1404.

In my view, the passage, which I have just set out, contained a sufficient direction to the jury in respect of the issue relating to the nature and extent of the possession or control of the items, the subject of the charges. Although it might have been preferable for the trial judge to have reinforced that direction, while directing the jury as to the elements of handling, the direction on inferences, which I have just set out, was given a short time before the judge directed the jury on the elements of handling. The adequacy of particular directions, by a judge to a jury, must be assessed in the context of the issues at trial, and in the light of the whole of the charge delivered by the judge to the jury. The directions given by the judge to the jury were sufficient, in this case, to make it clear to the jury that it could not be satisfied beyond reasonable doubt that the accused had the necessary possession or control of the items, if it were unable to exclude the reasonable possibility that some other person, and in particular the accused’s son, had possession or control of them.

In his submissions on the hearing of the appeal, counsel for the appellant focused particularly on one aspect of the direction given by the trial judge to the jury concerning the first element of the offence of handling, and which I have set out at paragraph 76 above, in which his Honour stated to the jury that ‘… receive means obtain possession of them, of the good or item, in the sense that the accused either by himself or jointly with others acquired the capacity to control the goods … ‘. Counsel pointed out that at trial the prosecution had not conducted the case on the basis that the accused had acted in concert, or jointly, with Brett Audsley, or with anyone else, in handling the goods. He submitted that the reference to the concept of the accused acting either ‘by himself or jointly with others’ undermined the effect of the direction earlier given to the jury, namely, that to convict the accused, it must exclude the reasonable possibility that the goods were in the possession of some other person, and in particular Brett Audsley.

I do not accept that submission. In giving the direction to the jury concerning the first element of the charge of handling, the judge was doing no more than referring to the fact that the property did not need to be in the sole possession of the accused. That direction was of particular moment in respect of count 5, because the sofa, in question, was in the house occupied by the accused and his partner, and indeed the prosecution tendered a photograph of both the accused and his partner seated on it. In that context, the use of the phrase ‘or jointly’, by the trial judge, must be viewed in the context of the issues in the trial. Further, and significantly, it must be viewed in the context of the clear direction given by the judge to the jury that in order to convict the accused, it must exclude the reasonable possibility that the goods in question were in the possession of some other person than the appellant, and in particular his son.

For those reasons, I reject ground 2 of the grounds of appeal.

Ground 3: Whether the judge adequately related the law to the evidence

The third ground of appeal is that the trial judge failed to adequately relate the law to the evidence. As I have stated, that ground was abandoned on the hearing of the appeal. In my view, counsel for the appellant was correct in not pursuing the ground. In his directions to the jury, the trial judge clearly and sufficiently related the law, and the issues, to the evidence.

Ground 4: Whether the trial miscarried by the introduction of inadmissible evidence

The fourth ground of appeal alleges that the trial miscarried by the introduction of inadmissible evidence. This ground of appeal is directed to evidence, which was led at trial, as to the contents of the stock records which had been maintained by Saywell, but which were no longer in existence at the time of trial.

Before empanelment of the jury, counsel for the appellant objected to the admissibility of that evidence. After some discussion, the prosecutor conceded that Mr Kelly was not a person, who had a position of responsibility in relation to keeping the computer records, for the purposes of s 171 of the Evidence Act 2008 (Vic). Accordingly, it was conceded that s 48(4) of the Act did not permit Mr Kelly to give oral evidence as to the contents of the computer records. Having received that concession, the judge ruled that the evidence, as to the contents of the stock ledger, should be excluded.

However, notwithstanding that ruling, defence counsel, on a number of occasions, cross-examined Mr Kelly as to the contents of the stock ledger. As a result, the prosecutor, in re-examination, adduced evidence from Mr Kelly that he had checked the computer records of Saywell to compare the stock, which was returned by the police, with the stock, which was still in the warehouse. In each case he noted that there was a relevant discrepancy between the computer records and the stock in the warehouse, which correlated with the items which were returned to Saywell by the police. The fourth ground of appeal is directed to that evidence.

In my view, the cross-examination, by defence counsel of Mr Kelly, made relevant and admissible the evidence which was adduced from Mr Kelly in re‑examination, and to which I have just referred. It is clear, from a number of exchanges between defence counsel and the trial judge, that counsel for the accused made a deliberate forensic decision, in cross-examination, to question Mr Kelly about the contents of the stock records, notwithstanding the earlier ruling excluding evidence as to those records.

Shortly after the commencement of cross-examination, defence counsel asked Mr Kelly whether the police had asked him to check the records of Saywell in respect of the furniture before it was returned by the police. Mr Kelly stated that it was understood that he would check those items against the records when the furniture was returned. Counsel then asked Mr Kelly ‘… what records were you going to check?’ Mr Kelly responded that Saywell kept ‘very detailed accounting records’ of all the stock. Counsel then asked what sort of stock records they were, to which Mr Kelly responded ‘… we had a stock ledger’. Shortly after that cross‑examination, the judge raised with counsel, in the absence of the jury, the cross-examination, to which I have just referred. In response, counsel stated, in effect, that he had made a forensic decision to pursue that line of cross-examination.

Subsequently, counsel further cross-examined Mr Kelly about the records, which Mr Kelly had stated were available to him, to establish the movement of the furniture, in question, through the Saywell warehouse. Counsel specifically asked Mr Kelly as to how the records were compiled. In particular, counsel put to Mr Kelly a series of propositions (with which he agreed) that the records would establish that the type of items, which were the subject of the charges, had been in the Saywell warehouse, and that the records would have enabled the jury to establish whether the items had remained in the warehouse or gone out of it, and, if so, on what date. Counsel also cross-examined Mr Kelly about the six monthly stock reconciliations which were undertaken by Saywell, which enabled Saywell to reconcile the product codes between the computer records and the physical stock. The cross-examination, on that aspect, was detailed. Again, shortly after that part of the cross-examination, the judge, in the absence of the jury, raised with counsel the cross-examination, on which he had embarked. Counsel agreed with the judge’s observation that he had

made a forensic decision to cross-examine about the stock records of Saywell. He said ‘I’ve no doubt I’ll be referring to those records again’.

In making those remarks, counsel was true to his word. He continued to ask Mr Kelly questions about checking of the stock records, in respect to the first count. Mr Kelly stated that he remembered checking the records in the computer system against the physical stock in the warehouse, and there was stock missing. Mr Kelly was subsequently asked whether he and the police had discussed whether the property was stolen, and whether he understood that someone should check if the goods were stolen. Mr Kelly responded that he had checked a number of matters, including the stock records, to form the view that the goods were stolen.

At the conclusion of cross-examination, the prosecutor raised a number of matters, which he wished to canvass in re-examination. Among those matters, she raised, as a matter of caution, that she intended to ask Mr Kelly whether, in respect of each of the items that was returned to his warehouse, he compared the stock records to what was in the warehouse. The trial judge responded that that question arose out of cross-examination. In response, defence counsel queried whether Mr Kelly had been cross-examined about checking each of the items (as distinct from some particular items) against the stock records. The judge responded that there had been a deal of cross-examination about the process undergone when the forty items of furniture were returned Saywell, and related cross-examination about the missing stock records. Defence counsel again maintained that he did not specifically ask Mr Kelly about the check of stock records which he had made in respect to some of the particular items, and in particular the items which are the subject of counts 6 and 7. But at that point, both the judge, and the prosecutor, pointed out that the prosecutor only intended to ask a general question in re-examination, as to whether Mr Kelly had compared every item with the stock records. To that defence counsel stated (accurately): ‘Hasn’t he already done that? … that’s already been canvassed in both evidence in chief and cross-examination hasn’t it?’

After some further interchanges, the judge noted that the re-examination would only be directed to how Mr Kelly identified the forty items of Saywell products, and that the re-examination would not ask about the contents of the records in relation to any particular item. Defence counsel responded ‘Let me perhaps see how the re-examination proceeds’. As a result the trial judge, in a short ruling, reserved to defence counsel the right to raise the matter by way of objection, but ruled that the matter arose out of cross-examination. Relevantly, when the prosecutor asked Mr Kelly, in re-examination, whether he made a check of the computer records compared to the stock in the warehouse, and whether, as a consequence, he noted a discrepancy, defence counsel did not object. It is not surprising that he did not do so.

In light of the matters to which I have just referred, it is clear that, in cross‑examination, defence counsel had made a forensic decision to adduce evidence concerning the nature and contents of the stock records. The cross-examination on those records was not confined to any item of furniture, but rather it was of a general nature. Indeed, later, when cross-examining Mr Dowling,[38] defence counsel, noting some reticence of the witness to respond to a particular question, stated ‘Well, forget about any prohibition about reference to stock records, because we’ve been referring to them until they come out of our ears … ‘.
[38]T 1076.

In those circumstances, it is clear that defence counsel, at trial, made a forensic decision to cross-examine Mr Kelly about the contents and nature of the stock records kept by Saywell, notwithstanding that the judge had, earlier, ruled that that evidence should be excluded. Thus, it was permissible for the prosecutor to adduce evidence, in re-examination, directed to the matters raised in cross-examination. The re-examination by the prosecutor did not travel beyond the matters raised in cross‑examination of Mr Kelly.

Accordingly, the appellant has not made out ground 4 of the grounds of appeal, and ground 4 should fail.

Ground 5: Whether the verdicts are unsafe and unsatisfactory

Ground 5 of the grounds of appeal alleges that the verdicts are unsafe and unsatisfactory because:

(a)There was no sufficient evidence to permit the jury to find that the property, the subject of each count, was stolen;
(b)There was no sufficient evidence to permit the jury to find that the appellant knew or believed, at the time he handled the property, that it was stolen;
(c)There was no sufficient evidence to enable the jury to find that the appellant handled the property.

The items, the subject of count 5, were found in the appellant’s home. Thus, the submission on behalf of the appellant focussed on the questions whether the items belonged to Saywell, and whether they were stolen from Saywell. In respect of those issues, counsel for the appellant relied on the inconsistent answers given by Mr Kelly as to the identifying numbers of the item of furniture. In addition, the police witnesses did not support the evidence of Mr Kelly that the couch had a Decoro label fixed to it. Further, it was submitted that, although Mr Kelly said he had taken a photograph of the matching third piece, which had remained on Saywell’s property, Mr Kelly had lost his camera which contained that photograph.

In respect of count 13, counsel for the appellant noted that, in order to establish that the couch was stolen, the prosecution had relied on Mr Kelly’s assertion that it was still in the stock records, when it was returned by the police, and that it had not been put on display after its return. In respect to the question whether the appellant had handled the items, counsel referred to the fact that the item was found in a shed on the property, on which there were three houses, one of which was occupied by the appellant’s son.

In respect of count 14, counsel pointed out that it was not known when the Henley sideboard first came into Saywell’s stock, but it was probably in 2006, after which it became part of a discontinued line.

In respect of count 15, counsel conceded that it was open to the jury to conclude that the items were stolen from Saywell. However there was no evidence as to when it was stolen, and there was no evidence as to who put the property on the truck, or when that was done.

In respect of each of the counts, counsel for the appellant further submitted that, assuming that the goods had been stolen from Saywell, and that the appellant was in possession of them, it was nevertheless not open to the jury to be satisfied, beyond reasonable doubt, that the accused knew or believed that they were stolen.

In determining ground 5, the question is whether the jury, acting reasonably, should have entertained a reasonable doubt about the guilt of the appellant.[39] In Libke v R,[40] Hayne J stated:

It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

[39]Whitehorn v R (1983) 152 CLR 657, 687-8 (Dawson J); Morris v R (1987) 163 CLR 454, 472 (Deane, Toohey and Gaudron JJ); M v R (1994) 181 CLR 487, 494.

[40](2007) 230 CLR 559, 596-7 [113]; see also R v Klamo [2008] VSCA 75; 18 VR 644, 653–4 [38]–[41] (Maxwell P); Slaveski v R [2013] VSCA 16, [68].

In performing that assessment, the Court of Appeal must take into account the fact that the jury had the advantage of observing and hearing the relevant witnesses.[41]
[41]M v R, 493; Chidiac v R (1991) 171 CLR 432, 453 (Dawson J).

Applying those principles, the appellant has not demonstrated that the verdicts of the jury were unsafe.

The prosecution was principally reliant on the evidence of Mr Kelly, as to Saywell’s ownership of the items in question, and as to the fact that they should have been, but were not, in Saywell’s warehouse, when the items were returned to Saywell by the police. In my view, none of the matters raised by the appellant, either at trial, or on appeal, are sufficient to disturb the finding of the jury based on the credibility of Mr Kelly in respect of those matters. None of them, either collectively or individually, persuade me that a reasonable jury should have entertained a reasonable doubt about the evidence of Kelly in respect of the items, which were the subject of the four counts on which the appellant was convicted.

The inconsistency by Mr Kelly as to the meaning of the serial numbers of the item, the subject of count 5, was a matter for the jury. It is not a sufficient basis upon which a jury, acting reasonably, must have rejected Kelly’s credibility. His evidence, in relation to the item, was supported by the fact that the item, returned by the police, only consisted of two out of three pieces. Mr Kelly’s evidence as to the fact that Saywell still had, in its stock, the third piece of such an item, which matched the item which was returned, was strong evidence on which the jury were entitled to act. Mr Kelly’s evidence also appears to have been supported by the documents relating to the return of the goods from the Harvey Norman store in Bundall to Saywell.

In those circumstances, it was open to the jury to be satisfied beyond reasonable doubt that the item of furniture, the subject of count 5, was owned by Saywell, and had been stolen from Saywell. The appellant did not contend, on appeal, that the jury could not reasonably have concluded that the appellant was in possession of that item; at the time it was seized, it was in the appellant’s home.

The more difficult question is whether it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant knew or believed that the piece of furniture, the subject of count 5, was stolen. The principal factor relied on by the prosecution was that the sofa, at the appellant’s premises, only consisted of two of its three constituent parts. The photographs, tendered in evidence, demonstrated, quite starkly, the incomplete and ‘unbalanced’ state of that item of furniture. While the prosecution case, on this aspect of count 5, was far from strong, nonetheless, based on that evidence, it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant knew or believed that the sofa was stolen.

In respect to the item the subject of count 13, there was sufficient evidence, upon which the jury was entitled to conclude that the item was owned by Saywell, and that it had been stolen from Saywell. In support of Mr Kelly’s evidence, the prosecution tendered a customer invoice to Robertsons Furniture, a return authority, and a credit adjustment note. Mr Kelly was able to explain the difference in dates between the return authority on the one hand, and the issue of the credit adjustment note. He was able to specifically recall that the item was not sold in the January 2008 sale, because he could recall that it was still listed in Saywell’s stock records when the item was returned by the police in March 2008. The sofa was a one off item, and Mr Kelly had sufficient reason to recollect that fact.

In respect of count 14, the jury was entitled to rely on the evidence of Mr Kelly that he was able to recall the details of the Henley sideboard, particularly that Saywell had been unable to sell the last three pieces of that item, and that when the item, the subject of count 14, was returned, he ascertained that one of them was missing from the warehouse.

The items, which were the subject of counts 13 and 14, were found in the shed, which was located near the appellant’s house, and at some distance from the other two dwellings on the property. It was open to the jury to find that, in light of their location, the items were in the appellant’s possession. The item, which was the subject of count 13 was still wrapped, and the appellant had a similar sofa in his house. The Henley sideboard, the subject of count 14, was found in the same shed. In light of those facts, I consider that it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant knew or believed that the two items had been stolen.

The items, which were the subject of count 15, were located on the back of the truck parked in the driveway outside the appellant’s home. They were in the clear view of the appellant’s house. On that basis, the conclusion by the jury that the appellant was knowingly in possession of those items was not unsafe. The number of the boxes on the truck, the manner in which they were packaged, and the fact that there were no shipping labels or documents (such as invoices) attached to the boxes, justify the conclusion by the jury that the accused knew or believed that the items had been stolen.

For those reasons, I reject ground 5 of the grounds of appeal.

Conclusion

Based on the foregoing, I reject each of the grounds of appeal relied on by the appellant. It follows that the appeal should be dismissed.

Before departing from the matter, I should observe that the appeal was well argued by counsel on both sides. I was assisted by their thorough submissions, and by the sensible manner in which they each presented them.

LASRY AJA:

I have had the advantage of reading in draft the reasons of Kaye AJA. I respectfully agree with his Honour’s analysis and with his conclusion that the appeal should be dismissed. I also agree with his Honour that the submissions of counsel, both written and oral, were of considerable assistance in dealing with the matter.

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[2013] VSCA 41

7 March 2013