Blum v The State of Western Australia
[2011] WASCA 73
•30 MARCH 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BLUM -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 73
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 25 FEBRUARY 2011
DELIVERED : 30 MARCH 2011
FILE NO/S: CACR 131 of 2010
BETWEEN: STEVEN JAMES BLUM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SWEENEY DCJ
File No :IND BUN 21 of 2010
Catchwords:
Criminal law - Leave to appeal against conviction - Receiving stolen property - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 27(1), s 27(2)
Criminal Code (WA), s 414, s 428
Criminal Investigation Act 2006 (WA), s 118, s 155
Criminal Procedure Act 2004 (WA), s 45(5), s 95(6), sch 1 cl 5(1)(c)(ii)
Result:
Leave refused in relation to grounds 1 - 9
Leave granted in relation to ground 10
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Jensen v The Queen (1991) 52 A Crim R 279
Robinson v The Queen (1991) 56 A Crim R 133
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
McLURE P: I agree with Mazza J.
BUSS JA: I agree with Mazza J.
MAZZA J: This is an application for leave to appeal against conviction. Leave to appeal is required on each ground of appeal: s 27(1) of the Criminal Appeals Act 2004 (WA). The court must not grant leave to appeal on a ground, unless it is satisfied that the ground has a reasonable prospect of succeeding: s 27(2) of the Criminal Appeals Act. To have a reasonable prospect of succeeding, a ground must have a rationale and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
On 6 August 2010, after a trial before Sweeney DCJ and a jury in the District Court at Bunbury, the appellant was convicted of one count of receiving. He was subsequently sentenced to 3 years' imprisonment.
Overview
Gregory and Diana Gell are a married couple, who owned and conducted a business called Australind Jewellers in shop premises in the south‑west town of Australind.
Some time between 12 and 14 September 2009, the premises of Australind Jewellers were broken into and a large quantity of jewellery was stolen. Evidence was led at the trial that at least some of the jewellery was the property of Mr and Mrs Gell.
At about 10.55 pm on 19 September 2009, the appellant was apprehended by Constables Venning and Nicholls in Busselton in connection with a traffic matter. The police searched the vehicle which the appellant had been driving and found in the boot a bag containing jewellery that was later identified by Mr and Mrs Gell as being some of the jewellery stolen from their shop. They each testified to the effect that the jewellery belonged mostly to them, although some of it belonged to others who had left their jewellery at the shop for repair.
The appellant gave evidence. He testified that earlier on 19 September 2009, he went fishing at Wonnerup Beach. As he returned to his vehicle after he had finished fishing, he said that he came across a plastic bag partially buried in the sand. He examined the bag and saw that it contained a quantity of jewellery. He said that when he found it he remembered seeing something on television about a burglary at Australind
Jewellers. He said in examination‑in‑chief 'I guess I ought to have known then what I now well know that it was stolen property': 5/8/2010, ts 87. In cross‑examination he said:
When I examined it back at the vehicle I saw some tags and stuff on the items. Anyone in their right state of mind would believe that that was probably stolen property (5/8/2010, ts 102).
A little later in cross‑examination he said:
After I obtained possession of the property I ought to have known that it was stolen property (5/8/2010, ts 103).
The appellant testified that his intention was at all times to take the jewellery to the Busselton police station, where he would report it and if it was ultimately unclaimed, he understood that it would be returned to him. However, before he had the opportunity to hand the jewellery in, he was arrested by the police.
At trial, the defence case was that the evidence led by the prosecution did not establish that Mr and Mrs Gell owned the jewellery found in the car. Further, the appellant did not have any dishonest intention with respect to the jewellery. His intention was to hand the jewellery over to the police for it to be dealt with properly.
Plainly, the jury by their verdict rejected this case.
The indictment
On 26 February 2010, an indictment was filed in the District Court, in Bunbury, which alleged two counts of burglary (the first indictment). The first count on that indictment is irrelevant for present purposes, but the second count alleged that the appellant had committed the burglary on Australind Jewellers.
Then, on or about 28 June 2010, the first indictment was discontinued and a new indictment was filed. It was this indictment that was put to the appellant at his trial. As originally framed, the indictment alleged:
On a date unknown between 11 September 2009 and 20 September 2009 at Australind [the appellant], received jewellery, the property of GJ & D Gell Pty Ltd trading as Australind Jewellery [sic], which had then lately been stolen, then well knowing the same to have been so stolen.
After Mr Gregory Gell gave his evidence on the first day of the trial, on 4 August 2010, her Honour, upon the application of the prosecutor and with the consent of defence counsel, amended the indictment to delete the abbreviation 'Pty Ltd'. The effect of this amendment was to allege that the property received by the appellant was the property of Mr and Mrs Gell.
Disclosure to the defence prior to trial
It is not clear exactly when the defence received disclosure in accordance with s 95(6) of the Criminal Procedure Act 2004 (WA), but a listing certificate filed by the prosecution for a status conference on 27 April 2010, certified that s 95(6) had been complied with. The listing certificate filed by the defence does not indicate anything to the contrary.
On 30 July 2010, just prior to the commencement of the trial, the prosecution made further disclosure to the defence. The documents that were disclosed were contained under cover of a document entitled 'Supplementary Index No 2'. Those materials were statements of Senior Constable Darryl Khng and Gregory Gell, photographs of a black onyx ring, a tax invoice for jewellery purchased by Australind Jewellers and a handwritten log of stolen jewellery signed by Gregory Gell. No application was made to adjourn the trial as a result of this late disclosure.
The alleged admission
The State called, as part of its case, one of the investigating officers, Detective Sergeant Darren Clifton.
Detective Sergeant Clifton said that he spoke to the appellant on the morning of 21 September 2009, at the Bunbury police station. Without objection from defence counsel, the prosecutor led the following evidence from the witness:
I advised him that I wished to speak with him regarding a burglary that had been committed at the Australind Jewellers as he'd been recently apprehended in possession of a large quantity of jewellery stolen during the burglary, and so I cautioned him, and by that I mean I told him he wasn't obliged to answer any questions if he didn't wish to, and then I asked him if he'd participate in a video-recorded interview. He said to me, 'I'm not doing any interview, I'll plead guilty to 428 but I didn't do any burglary' (5/8/2010, ts 80). (emphasis added)
Detective Sergeant Clifton was not asked to explain what '428' was and no explanation was provided by anyone else. It is apparent that the appellant's reference to '428' is a reference to the offence of possession of stolen or unlawfully obtained property contrary to s 428 of the Criminal Code.
The appellant's alleged admission was not recorded by audiovisual means. Arguably, the evidence was inadmissible pursuant to s 118 of the Criminal Investigation Act 2006 (WA). That section provides, in general terms, that where a person is charged with an indictable offence, evidence of any admission made by that person is inadmissible, unless the evidence is in the form of an audiovisual recording. If there is no audiovisual recording of the admission, it may be admissible, but only if the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for its absence, or the court permits its admission under s 155 of that Act.
The trial judge was clearly alive to the situation. Shortly after the evidence was led, her Honour asked the jury to retire for a few minutes and, in its absence, the following exchange took place between the trial judge and the prosecutor:
SWEENEY DCJ: You appreciate you needed the leave of the court to lead that evidence? Have you received it on some prior occasion?
WHITE, MS:No, I apologise. I didn't appreciate that.
SWEENEY DCJ: It's an admission of an accused not on video.
WHITE, MS:The counsel for the accused said that his client would admit that, and I apologise. I didn't appreciate that I needed the leave of the court to do so.
SWEENEY DCJ: It's a pretty significant admission. Are you going to lead any evidence explaining what it means or ---
WHITE, MS:No.
SWEENEY DCJ: I'm baffled, Ms White.
WHITE, MS:It was going to be an ---
SWEENEY DCJ: How were you going to use this evidence?
WHITE, MS:It was going to be an area of cross‑examination, your Honour.
SWEENEY DCJ: So you're not relying upon this admission. Is that what you're saying?
WHITE, MS:No.
SWEENEY DCJ: Right, so you won't be putting to the jury that they should draw anything from that? It's purely been led to open it to the defence for cross‑examination?
WHITE, MS:Yes.
SWEENEY DCJ: All right. Yes, it's a very unusual situation, but all right, we'll leave that as is (5/8/2010, ts 82 ‑ 83).
Defence counsel was not called upon to comment by her Honour, but made no application, either to seek a ruling from her Honour as to the admissibility of the evidence, or any direction from her Honour, or to discharge the jury.
Ultimately, nothing more was said in the trial about the admission. It was not the subject of comment by either counsel in their closing addresses, and it was not mentioned by her Honour in her summing up.
Proposed grounds of appeal
The appellant has represented himself in these proceedings. His proposed grounds of appeal number ten in total. There is no need to set them all out. They are, in many respects, unclear. However, after considering the written materials submitted by the appellant and his oral submissions, it is evident that his complaints are as follows:
1.As a result of an amendment to the indictment during the trial, the trial should have been adjourned. (Ground 1)
2.Her Honour erred when she instructed the jury that the place where the offence of receiving was allegedly committed was not a matter that the State had to establish beyond reasonable doubt. (Ground 1)
3.Her Honour erred by admitting into evidence material in the form of photographs, audiovisual tapes and DVDs, that were inadmissible because the makers of those things did not give evidence and they were apt to mislead the jury. (Ground 2)
4.The State prosecutor, in her opening address, referred to the doctrine of recent possession: 4/8/2010, ts 17 ‑ 18. Although no reference was made to this so‑called doctrine in her Honour's summing up, the appellant alleges that the prosecutor's reference to it 'may have misled the jury'. (Ground 3)
5.At the commencement of the trial, when the State prosecutor read to the jury panel the names of the witnesses that may be called by the State, she failed to refer to a police forensic officer, Darryl Raymond Khng. (Ground 4)
6.The trial should have been adjourned because on 30 July 2010, the State disclosed to the defence extra materials. The appellant alleges that he did not have sufficient time to deal with those materials. Further, the State did not, in any event, give full disclosure. (Ground 5)
7.Her Honour erred by allowing the prosecutor to show each of Mr and Mrs Gell photographs, of the jewellery allegedly found in the appellant's vehicle, before the police officer who took the photographs gave evidence. (Ground 6)
8.Her Honour erred in her summing up when she instructed the jury that they only needed to be satisfied that one item of property recovered from the bag found in the appellant's vehicle belonged to Mr and Mrs Gell. (Ground 7)
9.Her Honour erred by not leaving to the jury the alternative charge of possession of stolen or unlawfully obtained property. (Ground 8)
10.The verdict was unreasonable and could not be supported on the evidence, because Mr and Mrs Gells' insurers became the owners of the stolen (and unrecovered) jewellery after the trial. (Ground 9)
11.Her Honour erred by failing to rule as inadmissible, evidence of an alleged admission made by the appellant to a police officer, Detective Sergeant Clifton, because it was not recorded by audiovisual means, contrary to s 118(3) of the Criminal Investigation Act. (Ground 10)
Merits of the proposed grounds of appeal
In my opinion, none of the proposed grounds of appeal, save for the allegation that the evidence of the admission made by the appellant to Detective Sergeant Clifton was inadmissible, have a reasonable prospect of success and accordingly must be dismissed. My reasons for coming to this conclusion are as follows.
The amendment to the indictment
I have already mentioned, that during the course of the trial, an amendment was made to the indictment to change the identity of the owners of the allegedly received property from GJ & D Gell Pty Ltd to GJ & D Gell. The amended indictment reflected the unchallenged evidence of both Mr and Mrs Gell, that their business was a partnership which traded under the name of Australind Jewellers. The amendment to the indictment was not opposed and did not in any way prejudice the appellant. The appellant's trial counsel made no application to adjourn the trial. This complaint is without merit.
The place of the alleged offence need not be established beyond reasonable doubt
The formal requirements of an indictment are set out in sch 1 of the Criminal Procedure Act 2004 (WA) (the Act). Schedule 1 cl 5(1)(c)(ii) provides that an indictment must, with reasonable clarity, state where an alleged offence was committed. In this case, the indictment alleged that the offence was committed in Australind. The police found the appellant in possession of the jewellery in Busselton. The appellant's case was that he found the jewellery at Wonnerup Beach, which is near Busselton.
Her Honour directed the jury that details of date and place are included in the indictment so that the accused knows 'what … the case is about'. She also told the jury that the State did not have to prove beyond reasonable doubt that the appellant came into possession of the jewellery at Australind as opposed to anywhere else: 6/8/2010, ts 141. Her Honour's direction was correct. While there are some cases where the place at which an offence occurred may effectively be an element of the offence, for example, where jurisdiction may be an issue, the present case was not of this type. The place at which the appellant received the jewellery was not an element of the offence. It did not have to be proved beyond reasonable doubt.
Admission of photographs, audiovisual tapes and DVDs
During the trial, the prosecution tendered, amongst other things, photographs taken by Constable Venning of the jewellery that was seized from the appellant's vehicle: Exhibit D1‑18, and a DVD of the search that was conducted of the appellant's vehicle: Exhibit B. That DVD was recorded in Constable Venning's presence. The photographs and the DVD were tendered into evidence without objection from the appellant's trial counsel and the evidence was not challenged. In light of these facts, the submission that the items were inadmissible because the maker was not called, is unsustainable. It is plain that the photographs and the DVD were admissible. It is impossible to see how the evidence could have misled the jury.
Reference by State prosecutor to the doctrine of recent possession
In her opening address to the jury, the State prosecutor said:
Finally I wish to talk to you about a legal rule or doctrine. What it's called is the doctrine of recent possession; that is, the law says that when a person is discovered in possession of recently stolen goods and fails to give a credible explanation for possession in those circumstances, where it would be expected that he would have done so, you as the jury would be entitled to conclude that he was either the thief, which you remember the state is not asking you to decide that aspect, or he received those goods knowing that they were stolen (4/8/2010, ts 17 - 18).
That statement was the last that the jury heard about the so‑called doctrine of recent possession. The topic was not mentioned again in the presence of the jury by either counsel or her Honour.
Prior to counsel delivering their closing addresses, her Honour raised the matter. She told counsel that she did not intend to direct the jury in terms of the doctrine of recent possession. She told counsel that she intended to direct the jury on the basis that the case against the appellant was a circumstantial case. Ultimately, both counsel accepted this: 5/8/2010, ts 118 ‑ 119.
Her Honour, in her summing up, clearly instructed the jury that the law they had to apply was the law as she explained it: 6/8/2010, ts 11. Her Honour gave orthodox and accurate directions as to the drawing of inferences and circumstantial evidence: 6/8/2010, ts 14 ‑ 16, 22, 24 ‑ 25.
In these circumstances, there is no reasonable possibility that the jury would have been misled by the State prosecutor's opening.
Failure to refer to Darryl Khng
Darryl Khng was a forensic officer, who was involved in the investigation of the case against the appellant, but was not called to give evidence. There was no requirement for the prosecutor to mention Mr Khng to the jury panel.
Failure to adjourn because of alleged late disclosure and the allegation of a failure to disclose
The first complaint made by the appellant concerns the disclosure on 30 July 2010. Plainly, the documents in Supplementary Index No 2, were filed only a short time before the commencement of the trial. No application to adjourn the trial was made by the appellant's trial counsel on the basis of late disclosure. Accordingly, it can be inferred that nothing that was contained in Supplementary Index No 2 prejudiced the appellant in his preparation for the trial.
The appellant then complains that his counsel was not provided, prior to trial, with the draft witness statements of Constables Venning and Nicholls, or 'all the necessary' records of Australind Jewellers. After his conviction, the appellant obtained, pursuant to a Freedom of Information request, the draft witness statements of Constables Venning and Nicholls. He asserts that a comparison of each draft witness statement with the statements disclosed in the prosecution brief, reveals a different version of events on 19 September 2009. The differences are set out in Annexure B of the appellant's affidavit dated 13 October 2010, in connection with an application made by him in the course of this appeal. None of the alleged differences are of any significance. It is not clear what other records of Australind Jewellery the appellant asserts should have been disclosed and what purpose they had.
There is nothing to the appellant's complaints about disclosure.
Mr and Mrs Gell viewing the photographs before the photographer was called
Mr and Mrs Gell were the first two witnesses called by the State. During the course of their testimony, they were shown photographs which had been taken by Constable Venning of the allegedly received jewellery, for the purpose of identifying the jewellery. The photographs were first shown to Mr Gell, and were marked for identification as MFI 1: 4/8/2010, ts 26. Those photographs were shown to Mrs Gell: 4/8/2010, ts 44. After Mr and Mrs Gell gave evidence, the State prosecutor called Constable Venning. She testified that she took the photographs. The photographs, which comprised MFI 1, were tendered through Constable Venning as Exhibit D1‑18: 4/8/2010, ts 66. The procedure adopted by the State prosecutor of showing the photographs to each of Mr and Mrs Gell, marking them for identification and then tendering them through Constable Venning was entirely proper.
Judge's direction that the State only needed to prove that one item of jewellery belonged to Mr and Mrs Gell
Her Honour directed the jury that:
The state could have, if it had wanted to, written its charge so that it did include the customers' jewellery but it didn't. You need to be satisfied that at least one item of jewellery recovered did belong to Mr and Mrs Gell specifically. You don't need to draw a distinction between their property that they were hoping to sell in their business and their property that they planned to keep. They didn't operate as a company, so the property of the business was in fact their property and that includes their personal items.
If you come to be satisfied that at least one item found in the accused's boot or on the accused's finger did belong to Mr and Mrs Gell or one of them and was to be sold in the shop or was a personal piece of jewellery, that would be sufficient to prove this element of ownership by the Gells (6/8/2010, ts 18 - 19).
The State's case was that a total of 366 items were found in the appellant's possession. Mr and Mrs Gell testified that some of these items belonged to customers, but the bulk of the items belonged to them either as stock in the shop or personally. Each of them, in the course of their testimony, identified numerous items as belonging to them.
The indictment alleged that the appellant 'received jewellery, the property of GJ & D Gell trading as Australind Jewellery'. The State did not in the indictment, nor during the trial, quantify the precise amount of jewellery belonging to Mr and Mrs Gell, which the appellant received. The State do not have to specify and then prove the precise amount of jewellery allegedly owned by Mr and Mrs Gell that the appellant received. It is, as a matter of law, sufficient if the State proves that at least one of the items found in the appellant's possession belonged to Mr and Mrs Gell. Her Honour's direction on this point was correct.
The failure to put the alternative charge
The appellant contends that her Honour should have directed the jury as to the alternative charge of possession of stolen or unlawfully obtained property, contrary to s 428 of the Criminal Code. Section 414 of the Criminal Code provides that one of the alternative offences to receiving is an offence under s 428.
The indictment did not allege the alternative offence of s 428 of the Criminal Code. The State did not put its case on the basis that the appellant may have been guilty of an offence under s 428, nor did the appellant's counsel raise the matter at trial. Her Honour did not leave the alternative offence for the jury's consideration.
In cases which do not involve homicide, there is no general rule that a trial judge is obliged to leave an alternative verdict to a jury. Whether a judge does so is a matter for the discretion of the trial judge, depending on the particular circumstances of the case: Jensen v The Queen (1991) 52 A Crim R 279, 285; and Robinson v The Queen (1991) 56 A Crim R 133, 136 ‑ 137.
Her Honour was not asked to exercise her discretion to leave the alternative count to the jury. In any event, the jury were plainly satisfied that all of the elements of the offence of receiving had been made out. I cannot see how any miscarriage of justice has arisen because of the failure to leave the alternative verdict to the jury.
The verdict was unreasonable because the jewellery was allegedly owned by the insurers
The appellant contended that there was evidence before the jury to the effect that Mr and Mrs Gell made a claim to their insurers relating to the stolen goods that were unrecovered. Defence counsel asked some questions of Mrs Gell in cross‑examination to the effect that their insurers may acquire title to those missing goods, once a payout had been made: 4/8/2010, ts 54.
None of this had any relevance to the appellant's trial. Her Honour correctly instructed the jury, during her summing up, that the trial had nothing to do with the jewellery which had not been recovered: 6/8/2010, ts 19. This point has no merit.
Evidence of Detective Sergeant Clifton
This ground of appeal has reasonable prospects of success. It may encounter difficulties, having regard to the proviso, but that is something that should be dealt with at the substantive hearing: Samuels v The State of Western Australia [56]. Leave should be given in respect of this ground (ground 10).
Conclusion
Grounds 1 to 9 are not reasonably arguable and should be dismissed. I would grant leave in relation to ground 10.
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