David Verban v SA Police No. SCGRG 93/1549 Judgment No. 4283 Number of Pages 6 Criminal Law and Procedure

[1993] SASC 4283

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law and procedure - particular offences offences against property - receiving - appeal against conviction by a Magistrate on a charge of receiving a quantity of fishing tackle stolen from a locked shed - theft took place the night before a day on which the appellant sold some of the items to a secondhand dealer - appellant's brother sold other items - remaining, unsold items found in the appellant's bedroom of a house at which the appellant had resided for some three weeks before - confusing and unsatisfactory evidence by the two brothers as to how the fishing tackle came to be in the house and the circumstances in which some of it was sold - held on the facts that the learned Magistrate was justified in concluding that the appellant was in possession of the property, and further in concluding that he must have realised that it was stolen - appeal dismissed. Criminal Law Consolidation Act s. 196. Fallon (1981) 28 SASR 394 and Stafford (1976) 13 SASR 392, considered.

HRNG ADELAIDE, 15 September 1993 #DATE 29:11:1993
Counsel for appellant:     Mr R. Lempens
Solicitors for appellant:    Camatta Lempens Pty Ltd
Counsel for respondent:     Ms H.E. Nichols
Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 PERRY J The appellant appeals against a conviction by a Magistrate constituting the Port Adelaide Magistrates Court of a charge that on 13 November 1992 at Port Adelaide he received one echo-sounder, one chromascope, three fishing rod ugly sticks, four fishing reels, two fishing tackle boxes and fishing tackle, together of the value of about $2,500, knowing it to have been stolen, contrary to s.196 of the Criminal Law Consolidation Act 1935. The appellant had been jointly charged on an information which also alleged that he had on the same day broken into a shed and stolen the items of property the subject of the receiving charge, but that charge was dismissed. 2. The grounds of appeal are:
    "1. The learned Magistrate erred in finding that the
    defendant was in possession of the goods.
    2. The learned Magistrate erred by admitting into evidence
    the record of interview of Isaac Verban.
    3. The learned Magistrate erred in making findings not
    supported by the evidence." 3. At the hearing, the informant called a Mr Wormald, who was the assistant manager of Timber Transporters, a firm carrying on business at Francis Street, Port Adelaide, a Mr Newell, who conducts a pawnbroking and secondhand dealers business in the name Peters Disposals at Vincent Street, Port Adelaide, and two police officers, namely, Detectives McInerney and Presgrave. 4. Mr Wormald's evidence was that the items the subject of the charges were stored in a boat in a shed at the rear of Timber Transporters premises. The shed was secured at about 5 pm on the evening of Thursday 12 November 1992, and at 8.30 am on the following morning he found that the shed had been broken into and the goods in question missing. The side door of the shed, which had been secured with a padlock, had been smashed open. 5. Several days later, namely, on 16 November 1992, he accompanied police officers to the premises of Peters Disposals where he found amongst the stock of the business, three rods and two reels which he identified as his, and which had been amongst the items stolen. Later at Port Adelaide Police Station he identified the remaining items, with the exception of one of the tackle boxes which has still not been recovered. 6. Pausing there, there is no doubt from the evidence of Mr Wormald, which was accepted by the learned Magistrate, that the property in question was stolen. The only issue in the case was as to whether or not the appellant received it knowing it to have been stolen. 7. Mr Newell's evidence was that the accused's brother, Isaac Verban, brought to him a fishing reel described as an Abu reel at 11.25 am on 13 November 1992. Newell bought the reel for $30 and made an appropriate entry in the secondhand dealer's book, which was signed by Isaac Verban. Isaac produced a signed health care card, for the purpose of identifying himself. 8. Mr Newell's evidence was that later in the day, at 3.42 pm, the accused came to the shop, together with his brother Isaac, and that the accused produced the three rods and two reels. He sold them to Newell for $80. The appellant produced his own identification, in the form of a social security card. Newell maintained in his evidence that it was David Verban and not his brother who conducted the negotiations which led to the sale. 9. It appears that Newell was in the habit of sending to the Port Adelaide CIB by facsimile machine towards the end of each day's business, a photostat of the relevant page or pages of his secondhand dealer's book which contained the entries relating to the transactions conducted on that day. The officers responsible for monitoring the transactions with pawnbrokers were made aware, after receiving the faxed copy of Mr Newell's secondhand dealer's book entries relating to the sale of the items in question, that the description corresponded with the description given to them of the items taken from Timber Transporters overnight. 10. Having received that information, Detectives McInerney and Presgrave attended at an address at Victoria Street, Queenstown, on the afternoon of 17 November 1992. Those premises were said in evidence to be owned by another brother of the appellant, Danny Verban. When the detectives arrived, they found the appellant inside the house. The appellant identified a room as his bedroom. A search of the room revealed inside a bedside cupboard another fishing reel, on the floor the fishing tackle box, and under the bed the chromoscope and echo-sounder was located. 11. The appellant was arrested and interviewed at Port Adelaide Police Station. The record of interview was tendered before the learned Magistrate. During the course of the interview, he said that Isaac had come to him with the property which was disposed of at Peters Disposals, and asked him to bring his "ID" with him so that he, Isaac, could sell the items. He said that Isaac had brought the items to the house that afternoon, before they went to the pawnshop. When asked whether he was aware that Isaac had sold a reel to Peters Disposals the same morning, the appellant answered: "Isaac said that he sold him the reel, but he wouldn't let him sell anything else because he had no ID." That evidence was, of course, inconsistent with the evidence of Newell as to Isaac having produced identification during the course of the morning's transaction. 12. The appellant went on to admit that he slept in the bedroom in which the remaining items were found, but asserted that he had no possessions in there, "just papers". 13. He admitted to having used the room as his bedroom for about three weeks. He denied any knowledge of how the items had come into his bedroom, and said that he had only noticed them there when the police told him about it. This was with the exception of the reel, which he said he had noticed being in his bedroom for "a couple of days, I don't know, I don't really take much notice." 14. Detective Presgrave gave evidence confirmatory of the evidence which had been given by Detective McInerney. He confirmed the record of the conversation with the appellant, and confirmed the detail of what was found in the appellant's bedroom at the premises at Victoria Street. 15. During the course of the informant's case a handwritten record of interview between Detective Presgrave and Isaac Verban was tendered. It had been signed by Isaac Verban. It was the intention of the informant that the Magistrate rely on it only as identification of Isaac Verban's signature, which in turn corresponded with his signature in Newell's dealer's book. The significance of that evidence was to prove that Isaac Verban had satisfactorily established his identity in the course of the morning transaction, and that this should have supported a conclusion that he had no need to introduce his brother into the afternoon transaction. 16. At the conclusion of the informant's case, the Magistrate dismissed a submission that there was no case to answer. 17. The appellant then gave evidence, and called his brother Isaac. The appellant admitted in evidence to having occupied the room in the house at Victoria Street since about 22 October. He said that the door of the bedroom was normally unlocked, and that he only used it to sleep in. When asked by his counsel:
    "Q. The items that were found in the room by the
    detective, had you ever seen them before."
    A. I don't spend time in there. I go there and sleep.
    I am stoned when I go to bed anyway. I don't take much
    notice. I am not sure but I don't even know if the room
    had a light globe in it, you know." 18. He denied breaking into Mr Wormald's premises and stealing the items, or that he had received them. He maintained the account which he had given in his record of interview as to how he came to have been involved in the transaction with Newell. 19. Isaac Verban's evidence was that he had bought the property in question from "some guy named Joe" at a pub not far away from the house at Victoria Street. He said that he was living at his mother's house at the time, but went down to the Victoria Street house which he described as "David's house", and put the items into the bedroom where they were later found. He says he did not know why he picked that particular room in which to put them. 20. During the course of his cross-examination, Isaac Verban was asked a series of questions designed to elicit when it was that he bought the equipment. The relevant passage in his evidence reads:
    "Q. How long before that date did you buy the items.
    A. I am not sure, I don't know.
    Q. Was it a month before, 6 weeks before the 13th November.
    A. I can't recall when it was.
    Q. You remember when you bought the property from the person
    Joe, and you remember I think in a pub, you remember those two
    things. How long was it before the day that you received
    the $80.
    A. Might have been that night for all I know.
    Q. Why do you find that difficult to remember.
    A. My head is not too good." 21. Isaac Verban admitted the transaction in the morning of 13 November involving one reel, and he admitted to having accompanied his brother to Newell's shop in the afternoon when the other items the subject of the transaction which then took place, were sold. Surprisingly, he said that he had bought the property for $100 and sold it for only $80. He said that he had conducted the sale, and that he taken his brother only to provide identification. In contrast with the appellant's denial of the presence of the property in his bedroom, or of any knowledge of where it had come from, Isaac Verban's evidence was that he had told the appellant that he had "bought the stuff". 22. The learned Special Magistrate reserved his decision and subsequently gave short written reasons for the acquittal of the appellant on the first count, and for the appellant's conviction on the receiving charge. 23. During the course of his reasons, the learned Magistrate made the following observations and findings:
    "Given the fact and timing of the break, I cannot believe
    Isaac Verban's evidence as to how it was that he came to get
    possession of the goods. When the prosecutor started to probe
    with any precision Isaac Verban's assertion, Isaac Verban
    manifested an unaccountable memory collapse, as well as a most
    unbecoming hostility. If his assertions were true, why should
    this have been the case? For that matter, the same observations
    and questions could be made and put with equal vigour regarding
    the manner with which this defendant gave his evidence. It is
    clear that the goods in question, apart from the three rods and
    three reels, were recovered by the police from a bedroom in a
    house at 66 Victoria Street, Queenstown. It was the defendant's
    assertion that although he occasionally slept in that room he
    did not inhabit it, nor was he aware of the property's presence
    in the room. Yet Isaac, in his testimony, was frank enough to
    say that at the time he put the goods in the room the defendant
    was "living" there, even though he did not know for how long
    that was the case. Moreover, Isaac said in evidence that he had
    told the defendant that he had bought the goods and told him in
    general terms what the goods were, yet the defendant's evidence
    was pitched at all times as to both his utter ignorance of the
    presence of the goods in the bedroom and as to their nature. It
    was also clear that Isaac Verban told the police in an interview
    certain things which departed radically from his evidence in
    court - for example as to where and when he had obtained the
    goods. Frankly, both Isaac Verban and this defendant
    unashamedly went about the business of attempting to conceal the
    truth from both the police and this Court. Their demeanour in
    the witness box not only conveyed the hostility to which I have
    referred earlier, but also the overwhelming desire to ensure
    that the court would not learn the truth. Both were utterly
    unsatisfactory witnesses. I find that neither could be
    believed." 24. The learned Magistrate went on to find that he preferred Newell's version of what happened during the course of the afternoon transaction, and that it was the appellant and not his brother who negotiated the sale of the three rods and the two reels. He concluded that it was the appellant who had assumed possession of those goods. He found also, given that Isaac Verban had produced satisfactory identification to support the transaction which took place in the morning, that his suggestion that he needed to bring his brother to the shop in order to conclude the transaction in the afternoon was not worthy of belief. He concluded:
    "The whole story is an utter fabrication. What was put on
    foot was an attempt to dilute the effect of their respective
    presences at Peters Disposals and to divert suspicion from
either one of them." 25. He went on to find that in his opinion, the appellant had attempted to conceal from the Court the true state of his knowledge of the presence in his bedroom of the items in question. 26. In my opinion, none of the grounds of appeal has been made out. In reviewing the evidence, given that both the appellant and his brother gave evidence before the learned Special Magistrate, it would be wrong for me to do other than accept the learned Magistrate's finding as to their credibility. But even without the benefit of seeing them in the witness box, their accounts are so inconsistent, both internally and in comparison with each other, that they can be given no credence. 27. The events in question occurred over a very small period of time, in that the subject goods were stolen overnight, and in part brought to Newell's shop for sale the next morning. Whatever the degree of attachment by the appellant to the bedroom, it is clear that he had slept in it for at least three weeks. In my opinion, the Magistrate was clearly right in finding that it was the appellant and not his brother who effected the sale in the afternoon to Mr Newell. Furthermore, having regard to the whole of the evidence, the learned Magistrate was fully justified in rejecting as implausible the appellant's denial of any knowledge of the presence of the equipment in his bedroom, and in finding that he was in possession of the goods. 28. In my opinion, given the nature of the explanations offered by the appellant with respect to his involvement with the items in question, it was also open to the learned Special Magistrate to conclude, as he did, that the appellant must be taken to have known that the goods were stolen. Although the precise dealings between the appellant and his brother Isaac were not proved, and the identify of the thief was not established, Isaac's assertion that he bought the goods from a man in a pub, given the vagueness of when that is said to have occurred and the short interval of time between the breaking and entering and the sale by Isaac of the reel on the following morning, cannot be believed. All that the prosecution must prove is that the accused "must have realised" that the property was stolen, not that he had actual knowledge of the theft (see Fallon (1981) 28 SASR 394 per Sangster J at 396). 29. Furthermore, the necessary guilty knowledge may be inferred in circumstances where the accused has not offered an explanation to account for his possession of the property, or if the Court is satisfied beyond reasonable doubt that the explanation which has been proffered is untrue (see Stafford
(1976) 13 SASR 392). 30. During the course of the argument on the appeal, Mr Lempens of counsel for the appellant submitted that the learned Magistrate may well have made improper use of the statement given to the police by Isaac Verban, which as I have indicated, was tendered in evidence for a somewhat limited purpose. Certainly the passage in the learned Magistrate's reasons: "It was also clear that Isaac Verban told the police in an interview certain things which departed radically from his evidence in Court - for example, as to where and when he had obtained the goods." does indicate that the learned Magistrate went beyond using the record of interview simply for the purpose of identifying Isaac Verban's signature in Mr Newell's secondhand dealer's book. The circumstances of the out of court statement by Isaac Verban to the police were not such as to render it admissible , at least in the course of the case for the informant, for any other purpose. 31. Howevaer, in my review of the evidence, I have excluded any reliance upon the content of Isaac Verban's statement. Even allowing for that, however, the evidence pointed overwhelmingly towards the appellant's guilt on the receiving charge. In my opinion, the appeal should be dismissed.