Connolly v The Queen

[1991] HCATrans 150

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B42 of 1990

B e t w e e n -

LESLIE CONNOLLY

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 24 JUNE 1991, AT 2.17 PM

Copyright in the High Court of Australia

Connolly 1 24/6/91

MS C.E. HOLMES:  May it please the Court, I appear with my

learned friend, MR A. BOE, for the applicant.

(instructed by Boe & Company Solicitors)

MR B.J. BUTLER:  May it please the Court, I appear with my

learned friend, MR D.R. LYNCH, for the respondent.

(instructed by the Director of Prosecutions)

BRENNAN J:	Ms Holmes.
MS HOLMES:	May it please the Court, I read the application

for special leave filed on 26 October 1990.

BRENNAN J:  I think you can take it the Court has read the necessary papers.

MS HOLMES:  Thank you. I hand up summaries of argument for

the applicant.

BRENNAN J: Yes, Ms Holmes.

MS HOLMES:  Thank you, Your Honour. The appeal turns around

recent possession and whether bare recent

possession can ever found a conviction for armed

robbery where that is the only count brought.
I had proposed to say that it warranted the

granting of special leave because this Court had
not considered recent possession or the entrances

available from it in any detail but I have been

provided this morning with a copy of Gilson which

was handed down last Thursday.

The distinction, however, between this case

and Gilson is that Gilson examined the proper

approach where there were alternative charges

joined. This case is the extension from there

because in this instance there was only one charge

brought. So, it becomes necessary to consider what

the proper approach is, how Chamberlain affects

that approach, because it is after all a case of

circumstantial evidence, and it is submitted here	that a jury to convict on a single count of armed
robbery would have to be able to exclude a
reasonable hypothesis consistent with innocence which is that the goods were received.
It is not the comfortable situation where the jury had to alternatives to choose from and it thus
has not been canvassed in Gilson.

DAWSON J: But there is no doubt about it from what Gilson

says, is there? If there is only one charge and

that is of robbery and the jury are in some doubt

as to whether the accused was the receiver, he must

be acquitted.

Connolly 2 HOLMES 24/6/91

MS HOLMES:  That would seem to be the logical extension of the direction.

DAWSON J: Well, there is no other conclusion available, is

there?

MS HOLMES: Well, that certainly would be my submission,

that on that direction a jury would have to be told

that, if the evidence was equivocal, they would

have to acquit on the more serious charge. Now, it

is certainly is unarguable here that armed robbery

is the more serious charge and there - - -

DAWSON J:	We are only concerned with one charge here.
MS HOLMES:	Yes, and the logical result is an acquittal.

But, with respect, the Court did not go so far as

to say that in so many words in Gilson and that is

why, in my submission, special leave is needed here

because the Court has not given that approach, it

is imprimatur.

DAWSON J: Well, I would have thought anyone with a modicum

of intelligence could have deduced it.

MS HOLMES:  Yes, Your Honour, but the other aspect of this

is, of course, that this is the only avenue of

redress for the applicant because, of course,

Gilson was only decided last week. A retrial has

already been ordered so that he will have denied to

him his possible relief simply because of the

sequence of events where the decision was given

last week if this Court is of the view that there

simply has to be an acquittal where the evidence is

equivocal and there_ is only one count joined.

McHUGH J:  But it has got to be more than equivocal. You

could only have the case taken away from the jury

if the evidence was equally consistent with robbery

and receiving and surely it is a question for the

jury whether they think the evidence established

robber. beyond reasonable doubt that your client was the

MS HOLMES: But, with respect, my submission is that where

you have no more than bare possession and an

explanation rejected by the jury which is

consistent with either, then one can never say that

the evidence is anything other than equally

consistent, as an abstract concept.

McHUGH J: Well, Trainer, decided in this Court 80 years ago

decides that the presumption is of stealing rather

than of receiving. So you begin with a presumption

that there was stealing.

Connolly 24/6/91

MS HOLMES: With respect, that seems to be at odds with the

majority decision in Gilson because that decision
prescribes that a jury should approach the question

not from a presumption of stealing but from the

situation where either is available, the less

serious is the one on which they should return a

verdict. There is no suggestion in the majority

judgment that they can presume stealing at first

instance because if that was the case it would not

be necessary then to give them a direction to

convict on the less serious offence.

McHUGH J: That is only an evidentiary presumption, it is

not a conclusive presumption. It is just

evidentiary. That is ordinary presumption: you

find somebody in possession of stealing stolen

property, well you presume he stole it. My

judgment is a minority judgment in Gilson but I

said in that case there is always more than the

bare fact of possession.

MS HOLMES: With respect, the evidentiary presumption that

was suggested in Trainer cannot sit with the

majority judgment in Gilson, in my submission,

because if one started from that presumption where

that was the evidence there would be no need for

the sort of direction suggested in Gilson because

one would start from a preferred basis of stealing.

DAWSON J: But you are not dealing with presumptions in

Gilson when you come to apply it, you are dealing

with the particular case, and dealing with this
particular case and looking at the goods which are

involved which are cheques made out to the

Queensland Turf Club, which are highly a

transmissible item very easily, one could quite

easily conclude that it is robbery rather than

receiving. They are not the sort of item that one

receives.

MS HOLMES:  The difficulty here was that the Crown did not lead evidence of precisely what was found. All

that was produced was one bag, a photograph of a bag and photographs of the contents of the bags.

So that one could not say whether the entire

proceeds of the robbery were there, or some, or

all.

DAWSON J: Well, there were cheques made out to the

Queensland Turf Club, were there not, and that was the bulk of the goods that were concerned?

MS HOLMES:  But that was entirely consistent - - -

DAWSON J: Is that right?

Connolly	4	24/6/91
MS HOLMES:	Yes.	I am sorry, I am not sure if I can go so

far as to say it was the bulk. There certainly

were cheques. There was mail. But that was just

as consistent with somebody having received the

entirety of the proceeds of the robbery, in other

words, having the lot handed on to him.

DAWSON J: Well, you assert that but for my own part it

would seem not to be so.

MS HOLMES:  Your Honours, Mr Justice Williams in the Court

of Criminal Appeal relied on Reg v Smythe to take

that approach but, in my submission, if there is

nothing distinctive about the items and if they may
well constitute simply the entire proceeds of the

robbery, to say that one should approach it on the

basis that it looks a little more like stealing

than receiving is to adopt a balance of

probabilities approach.

BRENNAN J: Could you articulate the hypothesis that is

consistent with innocence?

MS HOLMES:  The hypothesis consistent with innocence is

receiving.

BRENNAN J: But in what circumstances?

MS HOLMES:  It is not really necessary to define that it may

have been a receiving for value, in other words, an

exchange of money or a receiving simply to take the

goods off the hands of somebody who was concerned

about being pursued by the police which was

certainly very much open here because there was

evidence of a man called Hudson who may well have

been involved.

BRENNAN J: But if we take the former of those it seems an

unlikely hypothesis, does it not?

MS HOLMES: With respect, no.

BRENNAN J:  Can you imagine somebody coming along with a

cheque made out to the Queensland Turf Club, and

being an acquaintance of the accused, and saying to

him, "Would you give me some cash in exchange for

this cheque?"

MS HOLMES:	No, but one can imagine the situation where somebody might come along and say, "Here are the
two bags I got from a robbery today. What will you
give me for them and their contents?" So that it
is much too slight, even if it is available, an
approach to say that the jury could then exclude
the hypothesis of receiving altogether, because it is not simply a matter of preference of one charge
Connolly	24/6/91

over the other, the jury has to actually be able to

exclude receiving.

BRENNAN J: Is not the proposition that the evidence of

recent possession is capable of supporting a

conviction on either charge?

MS HOLMES:  The difficulty is that it was not an "either

charge" situation.

BRENNAN J:  I appreciate that but if it is capable of

supporting a verdict on either charge, can you say

that the evidence was insufficient to support the

verdict of stealing, that being the relevant

element here?

MS HOLMES:  Yes, because the jury, to reach a verdict beyond

a reasonable doubt, first had to go through the

process of excluding the hypothesis of receiving.

It was not enough to consider whether there was

evidence - there is this additional question,

because it was circumstantial evidence, as to
whether they could exclude a reasonable hypothesis.

One has to examine the circumstances to say whether

receiving was a reasonable hypothesis, and in this

sort of situation where it is bare possession, it

is a reasonable hypothesis.

DAWSON J: But the applicant gave evidence, did he not?

MS HOLMES:	Yes, he did, and he gave an account which the jury, if it had accepted, would have acquitted.
DAWSON J: Yes.	He did not say anything about receiving,

did he?

MS HOLMES:	No, but he did not say anything to point to stealing either. His account indicated a guilty
knowledge but it did not indicate specifically
guilty knowledge in relation to receiving or in
relation to stealing. So, it does not assist to
determine which charge. It simply indicates, if not accepted, a guilty knowledge and nothing more.
TOOHEY J:	Ms Holmes, I am just having some trouble with the idea that the jury had to exclude receiving before
they could convict, bearing in mind that there was
only one offence with which the applicant was
charged.
MS HOLMES:	Yes, that is
TOOHEY J:	It was not the case of having to make a selection

between charges which had been joined.

MS HOLMES:  No, it was not.

Connolly 6 24/6/91

TOOHEY J: If the evidence was capable, as the presiding

Judge suggested to you a moment ago, of supporting

an inference of stealing, whether or not it was

capable of supporting an inference of receiving,

why does the jury have to go through the exercise

of excluding receiving in order to be satisfied
beyond reasonable doubt that the accused was guilty

of robbery?

MS HOLMES:  Because of the prescription in Chamberlain and

other cases as far back as Peacock, that there may

be evidence to support stealing but if there is

also evidence to support receiving, it is purely a

circumstantial case. The jury must be able to

exclude the hypothesis which is consistent with

innocence of the charge before them, that is, armed
robbery. Consequently, they have to be able to

exclude receiving as a reasonable hypothesis.

In a case where you have nothing but recent

possession and an account which can go either way

which does not demonstrate in favour of either

position, then the jury can never rule out the

receiving hypothesis as a reasonable hypothesis.

They do not have to find one as opposed to the

other but they have to be able to exclude receiving

as a hypothesis available on the evidence.

TOOHEY J:  Is that proposition based on the premise that the

evidence goes no further than to demonstrate recent

possession?

MS HOLMES:  Yes, that is so and recent possession,

obviously, is circumstantial evidence. Therefore,

one must go through that process.

BRENNAN J:	I think we have displayed the problem.
MS HOLMES:	Yes, thank you, Your Honour.
BRENNAN J:	Have you any further submissions you wish to

propound?

MS HOLMES: Well, another basis for arguing for special

leave here was that the Court of Criminal Appeal is

actually in conflict with its own earlier approach

in Davis, (1989) Qd R 171, because Davis was a

mirror image of this situation: only receiving was

charged. In that case, the accused had been found

with stolen property in his possession - that was

packets of tobacco - and the Crown proved the theft

and his possession shortly after it.

Mr Justice Carter, who was in the majority,

considered the failure of the Crown to join the
charges of stealing and receiving and went on to

say at page 172, line 37 and onwards:

Connolly 24/6/91

Therefore having charged the offence of

receiving only, it was incumbent upon the

Crown to establish by evidence to the

satisfaction of the jury beyond reasonable doubt that the appellant did not steal the property, only that he received it.

And at page 173 at line 18 he expressed himself

unable to:

identify any facts or circumstances in the

case, other than the fact of possession, which

themselves support or from which an inference

can be drawn to support a finding beyond

reasonable doubt that the appellant was a

receiver of the packets of tobacco in his

possession rather than the person who stole

those packets.

BRENNAN J: But is this not the very problem that

Justice Dawson was putting to you before, namely,

there you had goods which passed and which might be

expected to pass from hand to hand.

MS HOLMES:	Yes.
BRENNAN J:	And here you have got goods which were stolen

which are invested with the dignity of a bill of

exchange, and it is not the kind of thing which one

finds to be the subject of criminal commercial

activity.

MS HOLMES:  The proceeds of a robbery as a whole though may

very well be the subject of criminal commercial

activity, and here the evidence was open that

everything that had been stolen may have been

passed to the accused because it was not lead by

the Crown precisely what had been passed. One

simply had this position where what was stolen gets

moved on. The fact that it involved cheques really

does not take one very much further at all.

McHUGH J: But it did involve more than cheques. It

involved the bags. Now, whatever you might say

about somebody negotiating the cheques, you would

hardly be expecting a thief to be selling the bags

as well as the cheques, would you?

MS HOLMES:  One might very well expect the thief just to

hand the lot over in the containers they came in.

It is not as if somebody had carefully gone and selected a distinctive bag and passed it on. Here

it is just what was taken. The bags happen to be

the means by which these things were being conveyed and they have been passed on holus-bolus or that is

certainly an available inference.

Connolly 24/6/91

McHUGH J: Well, what about the accused's denial that he had

ever seen the bags while he occupied the flat?

MS HOLMES: That is equally consistent with receiving and

stealing.

In my submission, the logic in Davis is equally applicable here, that the jury could

not - or that they should in that case have been

directed that if they could not be satisfied beyond
reasonable doubt that the appellant received the

property rather than that he stole it, a verdict of

not guilty of receiving ought to have been

returned. And he then went on to conclude that in view of the facts and circumstances of the case, a finding of receiving beyond reasonable could not be

supported.

Here, we have the converse which is that a

finding of stealing beyond reasonable doubt could not be supported because equally the evidence was

open to both and they could not be satisfied beyond

reasonable doubt it was not a receiving. So that the court had its own decision in Davis which, if applied to these facts, gave the identical result

that the stealing could not be made out.

There is reference also in my outline to Bruce

and Ugle. They become less significant because in

each of those there were alternative counts and

given the decision in Gilson, the approach in that

situation is now made clearer, that is, that if a

jury is unable to say which, a verdict of not
guilty on the more serious charge should be

entered. But if one applies the sort of direction

that was suggested or prescribed in Gilson here, a

trial judge would be in the position of having to

tell the jury that if they could not say which was

the situation, they would have to acquit of the

more serious charge. But there is no less serious

charge so the result is an acquittal of armed

robbery which, of course, carries life as opposed
to receiving which carries 14 years.	So that if

Gilson resolves the situation here, that is the way

it resolves it, that there must be an acquittal

when a decision cannot be made between the two

charges.

To try and resolve the matter by applying

Smythe, as His Honour Mr Justice Williams did, is

to try and resolve the question on the balance of

probabilities which is not the proper approach, in

my submission, on the majority judgment in Gilson.

It is also the case that Ghys v Crafter, which

was the original decision giving rise to the line

of authority on which the directions in Gilson were

Connolly 9 24/6/91

based, His Honour Mr Justice Napier suggested that

although it might be possible to act on the balance of probabilities in a case where both verdicts were

open, one could not go that further step and say,

when there was only the one charge, that the
prosecution could invite the jury to act upon the

balance of probability. That is at page 31:

it is taking a long step to say that the

prosecution can discharge the onus of proof by

showing that the accused has been guilty,

either of that offence or another, and that the jury are then at liberty - within those

limits - to act upon the balance of

probability.

He goes on to say:

I am unable to see where we ought to stop, if

it is once conceded that the prosecution need

not prove the charge, as it is laid, or beyond

the balance of probability.

Well, that is just what the prosecution could never

do here, in my submission, that is, to make out

armed robbery in company beyond the balance of

probability.

Consequently, that being the situation, the reasoning or the approach in DPP for Nauru v Fowler

should have been adopted because the evidence was

not sufficiently cogent to warrant a conviction at the first trial of armed robbery because receiving could not be excluded.

BRENNAN J:  You do not really need to go into that, do you,

because if the evidence was incapable of

supporting the verdict, you are entitled to a

verdict of acquittal?

MS HOLMES: Yes, that is so.

BRENNAN J: If, on the other hand, the evidence was capable

of supporting the verdict, then your application

must be dismissed.

MS HOLMES: Yes, that is so, except for another complicating

factor which is Fallon. Now, in my submission,

Fallon suffers from the same defect as some of the

other English authorities which is that it really

adopts a kind of balance of probabilities approach:

which one is slightly to be preferred, stealing or

receiving? But Fallon also involves a
consideration of whether recent possession can ever
support a charge of armed robbery in company for

the reason that the recent possessiqn may indicate

a taking but it is no evidence that there is an

Connolly 10 24/6/91

agreement to the use of violence. So, there is

also that qualification on the whole thing:

whether, in any event, one could ever have come to

a conviction of armed robbery in company on no more

than recent possession. That is an aspect that

needs to be addressed too.

BRENNAN J:  But that is not the only evidence that was here.

Here you had the evidence of two employees who were

robbed.

MS HOLMES:  I am sorry, I did not mean to say that there was

not evidence of the robbery itself.

BRENNAN J:  What else is necessary?

MS HOLMES: There is the aggravating circumstance of the use

of violence and whether the accused was a party to

it is the issue which arises. Now, in Fallon there

was no question but that there had been an armed

robbery with violence in company but because the
only evidence against the accused was recent

possession - in that case it was a matter of hours

later - the court held that that amounted to no

evidence of the aggravating circumstances. He may

have been a party to the taking but it did not

follow that he was party to the use of violence and

one could not find that aggravating circumstance on

bare recent possession.

DAWSON J: In this case though, even assuming that the

recent possession was only evidence of the theft,

there was only one theft here and that was in

circumstances where the two persons concerned

evidently acted in concert and in the absence of

any other evidence, that is the only inference you

could draw.

MS HOLMES: Certainly, the English Court of Criminal Appeal

acted on facts almost identical to what Your Honour

has just outlined there, that there was a recent

possession, much more recent than here; that there

was only one robbery and it was by a number of

people and it was with violence. But still the

conclusion was there was no evidence that the

accused - - -

DAWSON J:  E~ch case must depend on its own facts but in

this particular case there really is not any other

inference available that if your client were

involved in a theft he was involved robbery with

violence.

MS HOLMES:  I suppose it depends whether there is a

distinction to be drawn between his being a party

to the taking and an actual participant in the

Connolly 11 24/6/91

robbery and whether that latter possibility is open

on recent possession.

I simply draw the Court's attention to Fallon,

in any event, as a secondary factor because my primary submission is that because there was a

reasonable hypothesis consistent with innocence,

which is receiving, there should have been no

conviction on the taking. But there is the added

complication that Fallon suggests that one could
not do more than find a taking without the

aggravating circumstances. If this Court was

minded to follow the approach in Fallon, then that

would be the result, that there could only be a

conviction on stealing rather than armed robbery,

but that is very much a secondary submission.

My primary submission stands that, as a

circumstantial case, the jury would have to rule

out receiving. It simply is not possible on recent possession alone. If the jury received a direction

in accordance with Gilson, it would have to be

directed, if it could not be satisfied which, it

would have to acquit on the more serious offence
and the same result is achieved, whichever

direction one comes from, the Chamberlain direction

or the direction prescribed in Gilson. Either way,

there would have to be an acquittal. Those are my

submissions unless there is anything further.

BRENNAN J: Thank you. We need not trouble you, Mr Butler.

The Court is of the opinion that there is not

sufficient doubt attendant upon the judgment of the

Court of Criminal Appeal to justify the grant of

special leave in this case. Accordingly, special

leave will be refused.

AT 2.43 PM THE MATTER WAS ADJOURNED SINE DIE

Connolly 12 24/6/91