Gilson v The Queen

[1991] HCA 24

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

GILSON v. THE QUEEN

(1991) 172 CLR 353

20 June 1991

Criminal Law

Criminal Law—Alternative charges—Stealing and receiving—Evidence consistent with either—Proper direction to jury where satisfied of guilt of one or other offence but unable to say which.

Decisions

MASON C.J., DEANE, DAWSON AND TOOHEY JJ. The applicant was charged in the alternative with one count of shopbreaking and larceny and one count of receiving goods stolen from the shop. Under s.196 of the Criminal Law Consolidation Act 1935 (S.A.) charges of stealing any property and of feloniously receiving that property may be included in separate counts on the same information and may be tried together as alternative counts.

2. The prosecution case was that a shop had been broken into on 30 August 1988 and on 3 September 1988 property stolen from the shop was found in an unoccupied house owned by the applicant's grandfather, who was overseas at the time. On 6 September 1988 the police searched the applicant's flat and found property answering the description of some of the goods stolen from the shop. The applicant denied any knowledge of the theft or that the property found was stolen. The prosecution relied upon the doctrine of recent possession in relation to both counts. The applicant was convicted of receiving.

3. The trial judge directed the jury as follows:

"Now, you may find the accused guilty of either of those matters charged against him depending on the view that you take of the evidence but you will clearly understand that you cannot find him guilty of both.

I should point out to you that if you reach the stage that you are satisfied beyond reasonable doubt that the accused is guilty of either of those two offences, one or other of them, that you are satisfied either that he broke and entered and stole or that he received the goods knowing them to have been stolen, then you must determine on the balance of probabilities which of those offences it is which he has committed. Of course, I should add that you may find him not guilty of either charge, again depending upon the view you take of the evidence which has been given."

4. The applicant contends that this direction, although supported by authority in South Australia, was wrong. He submits that it is inconsistent with authority elsewhere and with the principle that the onus remains upon the prosecution throughout a criminal trial to prove the elements of an offence beyond reasonable doubt. He points out that, if a jury were to act upon such a direction, an accused might be convicted of an offence which the jury found to have been committed only on the balance of probabilities, notwithstanding their satisfaction beyond reasonable doubt that the accused committed one or other of the offences charged.

5. The line of authority upon which the prosecution relies commences in South Australia with the decision in Ghys v. Crafter (1934) SASR 28, which is in turn based upon the English decision of the Court for Crown Cases Reserved in Reg. v. Langmead (1864) Le and Ca 427 (169 ER 1459). In Ghys v. Crafter, the defendant was charged with larceny only and the point arose concerning the proper inference to be drawn from the fact of recent possession. Napier J., at pp 30-31, said:

"There is no doubt about the law up to a point. 'When it is shewn that property has been stolen, and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver, according to the circumstances' (per Blackburn J. in R. v. Langmead, ... at p 441). If the indictment charges both offences, it is sufficient if the jury are convinced that the prisoner is guilty of one or the other. If they are in doubt, as to which, it is their duty to act upon the probabilities of the case, and to return their verdict upon the charge, which - they think - is the more likely to be true. I have no doubt that the same principle applies whenever an accused person is lawfully presented for trial upon two or more charges, whether they are specified in the indictment or implied by law. See R. v. Rudge, (1874) 31 LT 590. But in these proceedings the only charge before the Court was that of larceny, and it is taking a long step to say that the prosecution can discharge the onus of proof by shewing 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. The Crown Solicitor has been unable to find any authority to that effect. Such authority, as I am aware of, points in the other direction (e.g. per Mellor J. in R. v. Langmead (supra), at p 442, and R. v. Densley, (1834) 6 C and P at p 399), and 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."

6. Ghys v. Crafter was followed in Reg. v. Dawson (1964) SASR 256 and the passage which we have cited from it was referred to by Cox J. in Reg. v. Harper (1984) 117 LSJS 116, at pp 118-119. He observed, however, that the House of Lords subsequently made its pronouncement in Woolmington v. The Director of Public Prosecutions (1935) AC 462 establishing that the onus remains upon the prosecution throughout a trial of proving all the elements of a crime beyond reasonable doubt. Subsequently, in Buckingham v. The Queen (unreported, Court of Criminal Appeal of South Australia, 12 February 1990) King C.J., with whom Cox and Perry JJ. agreed, cited the same passage from Ghys v. Crafter with approval in reaching his conclusion, but without reference to Woolmington. In the present case, the Court of Criminal Appeal refused to reconsider its decision in Buckingham v. The Queen. The judgment of the Court (King C.J., Cox and Mullighan JJ.) was delivered by Cox J. He expressed the view that Ghys v. Crafter was supported by the decision in Reg. v. Langmead and that the course which it sanctioned could be justified upon the ground of practical necessity. He was of the opinion that, if it were necessary to create or recognize another exception to the principle laid down in Woolmington, then that should be done to overcome the problem presented in this case.

7. Cox J. referred to s.196 of the Criminal Law Consolidation Act and pointed out that its source appears to have been an English statute of 1848, 11 and 12 Vict. c.46, entitled "An Act for the Removal of Defects in the Administration of Criminal Justice". Section 3 of that Act, after reciting that it had not been permissible to join in the same indictment a count of stealing and a count of receiving, provided that in the future such a joinder could be made and that "it shall be lawful for the jury who shall try the same to find a verdict of guilty, either of stealing the property or of receiving it knowing it to have been stolen". This provision, and its successors, including s.196 of the Criminal Law Consolidation Act, may, Cox J. suggested, be seen as supporting a direction based upon Reg. v. Langmead and as "constituting a statutory exception to the golden thread that was recognized in Woolmington".

8. Cox J. pointed to the decision of this Court in Thompson v. The Queen (1989) 169 CLR 1 in which it was held that an issue of territorial jurisdiction in a criminal trial is to be determined by the trial judge on the balance of probabilities. He suggested that "(o)ne possible view of the policy that underlies that decision is that it acknowledges a practical difficulty which may not be resolved by applying Woolmington inexorably to every factual issue that arises in a criminal trial".

9. In Reg. v. Langmead the accused was charged with stealing a number of sheep and, in the alternative, with receiving them. The main point of the case was whether evidence of recent possession could support the charge of receiving as well as that of stealing. It was held that it could, and the following comments appear in the judgment of Pollock C.B., at pp 439-440 (pp 1463-1464 of ER):

"If no other person is involved in the transaction forming the subject of the inquiry, and the whole of the case against the prisoner is that he was found in the possession of the stolen property, the evidence would, no doubt, point to a case of stealing rather than a case of receiving; but in every case, except, indeed, where the possession is so recent that it is impossible for any one else to have committed the theft, it becomes a mere question for the jury whether the person found in possession of the stolen property stole it himself or received it from some one else. If, as I have said, there is no other evidence, the jury will probably consider with reason that the prisoner stole the property; but, if there is other evidence which is consistent either with his having stolen the property, or with his having received it from some one else, it will be for the jury to say which appears to them to be the more probable solution."

Blackburn J., who concurred, said at p 441 (p 1464 of ER):

"When it has been shewn that property has been stolen, and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to the circumstances. If he had been seen near the place where the property was kept before it was stolen, they may fairly suppose that he was the thief. If other circumstances shew that it is more probable that he was not the thief, the presumption would be that he was the receiver. The jury should not convict the prisoner of receiving, unless they are satisfied that he is not the actual thief."

Martin B. and Byles and Mellor JJ. also concurred.

10. Reg. v. Langmead was recently considered by the Judicial Committee of the Privy Council upon appeal from the Court of Appeal of Hong Kong in Attorney-General of Hong Kong v. Yip Kai-foon (1988) AC 642. In the latter case the defendant was charged upon two counts of robbery for which a statutory alternative in Hong Kong was handling stolen goods. The prosecution case was that the defendant was found in possession, not only of goods stolen in the two robberies, but also of pistols which could be linked by ballistic evidence to weapons fired during the course of the two robberies. The trial judge directed the jury that, if the only reasonable inference was that the defendant was guilty of either robbery or handling, he should be convicted of one or the other according to which was the more probable or likely in the circumstances. The Privy Council held that this was a misdirection. In delivering the judgment, Lord Ackner rejected the submission that Reg. v. Langmead constituted support for a direction of that kind. The comments of Pollock CB and the other judges in that case were, he said, no more than speculation about how the jury might have arrived at their verdict. He continued, at p 656:

"Their Lordships are firmly of the opinion that not only was such a direction quite uncalled for in this case for the reasons already given but that such a direction is wrong in law. It detracts, or may be thought to detract, from the obligation of the jury to be satisfied beyond reasonable doubt that the accused is guilty of the particular offence, before they enter such a verdict."

11. It is true, as Lord Ackner observed, that there is no reflection in subsequent English authorities of "the more probable solution" which appears in the passage cited from the judgment of Pollock C.B. in Reg. v. Langmead. However, it may be said that the English courts have not really faced up to the problem that, logically, in a case based upon recent possession in which the accused is charged in the alternative with theft and receiving (or handling), apart from some such solution as is to be found in that passage, the accused may escape conviction entirely, notwithstanding that he is guilty beyond reasonable doubt of one or other of the offences: see Seymour (1954) 38 Cr App R 68; Plain (1966) 51 Cr App R 91; Stapylton v. O'Callaghan (1973) 2 All ER 782; Shelton (1986) 83 Cr App R 379. Indeed, that is inevitable when the prosecution evidence is that of recent possession which is consistent with both theft and receiving and the accused calls no evidence. Since the two offences are mutually exclusive and, if left to the jury, each is, ex hypothesi, open on the evidence, there must be a reasonable doubt about each of them even though there may be no doubt that the accused committed one or other of them.

12. The current edition of Archbold: Pleading, Evidence and Practice in Criminal Cases, 43rd ed. (1988), suggests that in the situation which we have just outlined it is the judge's duty to spell out to the jury that they must acquit: par.18-5b-d. The 40th edition (1979) of the same work suggested a different answer in par.1496:

"It is submitted that in the great majority of cases where the only evidence of burglary is recent possession it will be impossible to exclude the possibility that the defendant was merely a receiver of the stolen property, and accordingly, that in such cases a count of burglary ought not to be left to the jury. Where, however, there are alternative charges of burglary and handling the proper course would be for the judge to wait until the conclusion of the evidence and then, if it is still the case that the only evidence against the defendant is recent possession, to invite the jury not to consider the count alleging burglary: see R. v. Christ (1951) 35 Cr App R 76, C.C.A, and R. v. Plain (1966) 51 Cr App R 91, C.A.".

13. We doubt whether the cases cited support the course there suggested, which appears to be that, where there is evidence to support the two alternative charges, the jury should be invited, if they convict at all, to convict upon the lesser charge, assuming that to be handling. At all events, the suggestion is abandoned in later editions, as is shown by the view expressed in the current edition.

14. In Attorney-General of Hong Kong v. Yip Kai-foon the Privy Council appears to have considered that the problem might be averted by requiring the jury to deal with alternative counts of theft and handling successively, proceeding from theft to handling only when satisfied that the theft had not been proved beyond reasonable doubt. Thus, at p 656, the following approach was approved:

"The jury were required to approach the matter by two stages. First, they had to ask themselves whether they were satisfied beyond reasonable doubt that the defendant was guilty of robbery. This would involve rejecting the defendant's evidence and then being satisfied, so that they felt sure, that the ballistic evidence linked the defendant with the robberies or either of them. If they were not so satisfied, they would then proceed to the second stage, and ask themselves whether the prosecution had satisfied them in relation to each of the ingredients of the alternative offences of handling, which the judge had spelt out".

15. But such an approach ignores the underlying problem and, by leaving the matter to the jury without any guidance other than their common sense, it fails to recognize that, if the evidence relied upon is that of recent possession which is consistent with both larceny and handling, the jury, if they are to convict at all, will be compelled to choose between the two offences according to which they consider to be the more probable or, if they take a lenient view, according to which they consider to be the lesser offence. Thus, even if the jury are instructed to consider the charges in two stages, they may be unable to say beyond reasonable doubt which of the two offences was committed by the accused, being at the same time convinced beyond reasonable doubt that he committed one or other of them. In other words, they may be unable to conclude on the criminal standard of proof that the accused was the thief and yet, having disposed of the charge of theft on that basis, nevertheless be of the view that the accused was possibly, or even probably, the thief. If they then proceed to consider the charge of handling, they cannot, if there is no further evidence, be satisfied beyond reasonable doubt that the accused is guilty of that charge, because to do so would be to disregard the possibility that the accused was the thief rather than a handler.

16. The suggestion made by the Privy Council to overcome that dilemma was that the jury might disregard the charge of theft once they were not satisfied beyond reasonable doubt that the accused was guilty upon that count. We should note before setting out the passage in which this suggestion is made that the words in the definition of handling in s.24 of the Theft Ordinance (Laws of Hong Kong, 1986 rev., c.210) which excludes acts done in the course of stealing appear in parenthesis. The terms of the Ordinance are identical to s.22 of the English Theft Act 1968. The relevant passage is at p 658:

"In this case, the result of the jury acquitting the defendant of the robberies was to make the issue of whether or not he was the thief of the watches and the other goods no longer a live issue. The presumption that he was innocent of the theft of the goods, which existed when he went into the dock, was thus never rebutted. Accordingly, there was no necessity for the judge to make any but a passing reference to the parenthesis. It called for no specific direction."

With the greatest of respect, it is difficult to understand that passage. The prosecution case in Attorney-General of Hong Kong v. Yip Kai-foon was that the defendant was guilty of two counts of robbery. Handling was merely a statutory alternative. Even if the jury were not satisfied beyond reasonable doubt that the defendant had committed the robberies, they may nevertheless have thought it possible or probable that he did so. In that event, the jury could not have been satisfied beyond reasonable doubt that the acts relied upon as handling occurred otherwise than in the course of the stealing constituted by the robberies. Allowing that the prosecution failed to rebut the presumption that the defendant was innocent of the theft of the goods, that did not mean that the jury may not have entertained a doubt about it. Thus the acquittal of the defendant upon the robbery charges did nothing to avoid the problem which clearly called for some guidance from the trial judge.

17. In New Zealand the view has been taken that Reg. v. Langmead is authority for the proposition that the choice between theft and receiving, when the evidence is consistent with either, is one to be made upon the balance of probabilities: see Devereaux v. Police, an unreported decision of Macarthur J. cited in Adams, Criminal Law and Practice in New Zealand, (1971), par.1731; cf. Reg. v. Keenan (1967) NZLR 608. In Canada, an opposite view has prevailed. In Reg. v. Kowlyk (1988) 2 SCR 59; (1988) 43 CCC (3d) 1, McIntyre J., with whom Dickson C.J., Le Dain and La Forest JJ. concurred, said, at p 74; p 12 of CCC, in the context of recent possession pointing to both theft and unlawful possession: "Where a jury is unsure as to the guilt of an accused on one or other of two alternative offences, it cannot be satisfied beyond a reasonable doubt on either offence and an acquittal will result".

18. In Victoria in Reg. v. Bruce (1988) VR 579, at p 601, Gray J., with the concurrence of the other members of the court, expressed his agreement with the view now propounded in Archbold that, where an accused is charged in the alternative with theft or handling and the evidence is consistent with either count, he should be acquitted altogether.

19. On the other hand, in Queensland and Western Australia the Criminal Codes provide that where stealing and receiving property are charged in the alternative and the jury find specially that the accused either stole the property or received it knowing it to be stolen, but are unable to say which of those offences was committed, the accused is not entitled to be acquitted, but the court shall enter a conviction of the offence for which the lesser punishment is provided: The Criminal Code (Q.), s.568(4); The Criminal Code (W.A.), s.586(4).

20. The Code provisions provide a satisfactory solution to the problem. It is clearly unsatisfactory to require a jury to acquit an accused entirely when they are convinced beyond reasonable doubt that he was guilty of either theft or receiving, merely because, as a result of being required to apply the same standard of proof, they cannot determine which offence he committed. The law must surely be brought into disrepute if it is so bereft of answers that an accused who is clearly guilty of one offence or the other is allowed to escape conviction altogether.

21. Notwithstanding the observations of the Privy Council in Attorney-General of Hong Kong v. Yip Kai-foon, we are of the view that Reg. v. Langmead did posit "the more probable solution" as the test to be applied in order to avoid a quite unsatisfactory result. Napier J. in Ghys v. Crafter was correct in regarding it as having done so. It may be accepted that Woolmington requires re-examination of "the more probable solution" laid down in Reg. v. Langmead, but that by no means leads to a complete abandonment of the approach adopted in the latter case. If the jury conclude beyond reasonable doubt that the accused committed one or other of the offences charged, the only criticism that could be made, in the light of Woolmington, of allowing the jury to choose the more probable offence is that, if the more probable offence carries the greater penalty in the circumstances of the particular case, the accused may be subjected to that penalty upon the balance of probabilities. The way in which that criticism may be met is suggested by the Code provisions in Queensland and Western Australia. The trial judge, rather than directing the jury to return a verdict of guilty of the offence which they consider to have been the more probable, should direct them that, if they are satisfied beyond reasonable doubt that the accused either stole the property or received it knowing it to have been stolen, but they are unable to say which, then they should return a verdict of guilty of the less serious offence.

22. The trial judge should also direct the jury which of the offences they should regard as the less serious. Prima facie the seriousness of the offence will be measured by the maximum penalty which the law attaches to it. But the circumstances of the case may displace this prima facie approach: see Glanville Williams, Textbook of Criminal Law, 2nd ed. (1983), pp 858-859; cf. Shelton, at p 385; Stapylton v. O'Callaghan, at p 784. On occasions the offence of receiving (or handling) may be the more serious offence warranting a heavier penalty. That may well be the case if the evidence discloses that the offence was committed in the course of dealing in the receipt of stolen goods: see Balogh v. The Queen (1954) 72 WN(N.S.W.) 108, at p 111. Such activity can only result in the encouragement of the crime of theft. But on other occasions, probably more commonly, the offence of receiving may amount to no more than an isolated instance and the theft will be the more serious offence. But if anyone is in a position to decide which, in the circumstances of the particular case, is the more serious offence, it is the trial judge to whom the determination of the penalty, if any, must eventually fall (although at the time of sentencing the judge will ordinarily have access to information regarding the offender which was not available at trial). Where, as here, the offences with which an accused is charged carry the same maximum penalty and professional receiving is not involved, the starting point may be that an offence involving actual larceny has traditionally been regarded as more serious than mere receiving. An appropriate direction does not require the judge to anticipate the actual sentence to be imposed in the event that the accused is found guilty of one or other offence. He or she is required to do no more than direct the jury which, upon the evidence, is the less serious offence so as to avoid the accused's being convicted of the more serious offence upon the balance of probabilities.

23. We have been able to reach our conclusion without reference to either s.196 of the Criminal Law Consolidation Act or the decision of this Court in Thompson v. The Queen. However, there is obvious force in the observation of Cox J. that the intention of s.196 would be likely to be thwarted in many cases if the submission of the applicant were to be accepted. Clearly the intention which lies behind the section is that, should the evidence warrant a conviction upon one or other of the alternative charges of stealing and receiving, the jury should be entitled to return a verdict of guilty of the appropriate one. And in Thompson v. The Queen it was demonstrated that, within the general principle laid down by Woolmington, it may be necessary to determine a particular issue in such a way as to ensure that an undoubted wrongdoer does not escape conviction entirely.

24. Whilst the trial judge in this case directed the jury that they might decide between the alternative counts on the balance of probabilities rather than by selecting the lesser offence, no substantial miscarriage of justice can have resulted from his so doing. The applicant was convicted of receiving which was, in the circumstances, clearly the lesser offence.

25. We would grant special leave but dismiss the appeal.

BRENNAN J. The applicant was charged before the District Court of South Australia on an indictment containing two counts in the alternative: shopbreaking and larceny under s.170 of the Criminal Law Consolidation Act 1935 (S.A.) ("the Act") and receiving under s.196 of the Act. The circumstances of the case are set out in the judgment of the majority. The prosecution case depended upon proof of recent possession by the applicant of goods which had been stolen from the shop. There was no doubt but that the thief had broken and entered the shop and there committed the larceny. Therefore, if the jury drew from the evidence of recent possession the inference that the applicant was the thief, they would have been entitled to find that the applicant was guilty on the first count. However, the jury convicted the applicant on the second count. The maximum penalties prescribed by ss.170 and 196 of the Act for the respective offences are the same: imprisonment for a term not exceeding 8 years. The question is whether the learned trial judge was correct in directing the jury that, if the jury were "satisfied beyond reasonable doubt that the accused is guilty of either of those two offences, one or other of them, (if they were) satisfied either that he broke and entered and stole or that he received the goods knowing them to have been stolen, then (they) must determine on the balance of probabilities which of those offences it is which he has committed."

2. When an indictment charges larceny and receiving as alternative counts and the prosecution case depends on proof of recent possession of the stolen goods, the jury may convict of either offence provided they are satisfied beyond reasonable doubt that the accused is guilty of one or other of them. In Reg. v. Langmead (1864) Le and Ca 427, at p 441 (169 ER 1459, at p 1464), Blackburn J. said:
"When it has been shewn that property has been stolen, and
has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to the circumstances." This general proposition is subject to a qualification which is dictated by the principle that no-one should be in peril of his liberty in a trial on indictment except upon an adverse verdict of the jury and that, as a corollary, the limits of the sentencing power are determined by the jury's verdict: see Reg. v. De Simoni (1981) 147 CLR 383, at pp 392,395-396,405; Kingswell v. The Queen (1985) 159 CLR 264, at pp 288-289. Therefore when a conviction for larceny would expose the accused to a greater maximum penalty than a conviction for receiving, or vice versa, the jury cannot convict the accused of the offence attracting the greater maximum penalty unless they are satisfied beyond reasonable doubt that the accused has committed that offence. Thus, in a case in which an accused is charged in the alternative with simple larceny under s.131 of the Act and with receiving property knowing it to have been stolen under s.196(1) of the Act, the accused cannot be convicted of receiving (for which the maximum penalty is 8 years' imprisonment) rather than simple larceny (for which the maximum penalty is 5 years' imprisonment) unless the jury are satisfied beyond reasonable doubt that the accused is guilty of receiving.

3. The principle in Woolmington v. The Director of Public Prosecutions (1935) AC 462, properly understood, is calculated to ensure that an accused's liability to punishment depends wholly on the jury's verdict and that liability to punishment is established beyond reasonable doubt. In the usual case, that principle imposes on the prosecution the duty of proving to the jury's satisfaction beyond reasonable doubt every element of the offence charged or of any other offence of which the accused may be convicted on the indictment, apart from insanity and statutory exceptions. But, where larceny and receiving are charged in the alternative and the maximum penalty for each of those offences is the same, it does no violence to the principle in Woolmington to direct the jury that, provided they are satisfied beyond reasonable doubt that the accused is guilty either of larceny or of receiving, they should convict of that offence which they find on the balance of probabilities to have been committed. Given that the evidence supports a conviction for either offence, the choice between conviction for one offence and conviction for the other can be made on the balance of probabilities. The principle in Woolmington is practical and protective; it is not a device for permitting the guilty to escape by raising a dilemma of proof between offences when the accused has been proved beyond reasonable doubt to have committed one or other of them and a conviction for one exposes him to no greater punishment than conviction for the other.

4. The sufficiency of evidence of recent possession to support a conviction for either offence has long been acknowledged, as Reg. v. Langmead shows. In Trainer v. The King (1906) 4 CLR 126, Griffith C.J. said (at pp 132-133):
"It is a well known rule that recent possession of stolen
property is evidence, either that the person in possession of it stole the property, or received it knowing it to have been stolen, according to the circumstances of the case. Prim facie, the presumption is that he stole it himself, but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it, knowing that someone else had stolen it. This is only an illustration of the rule as to circumstantial evidence."

5. Although it is clear enough that evidence of recent possession of stolen goods is sufficient to support a conviction for either larceny or receiving, the reference by Griffith C.J. to a "presumption" may be taken to suggest that some evidential onus passes to the accused and that, prima facie, that onus is to rebut a presumption of larceny. To understand what his Honour said in that way is to mistake the true effect of evidence of recent possession. It is merely circumstantial evidence which is capable of supporting an inference of either larceny or receiving according to all the circumstances of the case but it raises no presumption of guilt and the jury are bound to acquit if, on the whole of the evidence, they entertain a reasonable doubt. The cogency of evidence of recent possession was considered in reference to a conviction for receiving by a strong Court of Criminal Appeal in Schama and Abramovitch (1914) 11 Cr App R 45, at p 49:
" Where the prisoner is charged with receiving recently
stolen property, when the prosecution has proved the possession by the prisoner, and that the goods had been recently stolen, the jury should be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But if an explanation is given which may be true, it is for the jury to say on the whole evidence whether the accused is guilty or not; that is to say, if the jury think that the explanation may reasonably be true, though they are not convinced that it is true, the prisoner is entitled to an acquittal, because the Crown has not discharged the onus of proof imposed upon it of satisfying the jury beyond reasonable doubt of the prisoner's guilt. That onus never changes, it always rests on the prosecution."

6. In Woolmington, this case was explained by Viscount Sankey L.C. as follows (at p 481):
"... while the prosecution must prove the guilt of the
prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.

This is the real result of the perplexing case of Rex v. Abramovitch, which lays down the same proposition, although perhaps in somewhat involved language. Juries are always told that, if conviction there is to be, the prosecution must prove the case beyond reasonable doubt. This statement cannot mean that in order to be acquitted the prisoner must 'satisfy' the jury."

The so-called "doctrine" of recent possession is no more than a particular and familiar example of the sufficiency of circumstantial evidence to establish to the required standard of proof elements of an offence. Evidence of this kind does not itself establish all the elements of offences which include the elements of larceny or receiving. Axiomatically, proof of ownership of the goods found in the accused's possession must be given. Again, when stolen goods found in an accused's possession have been stolen in circumstances of aggravation and the accused is charged on alternative counts of receiving and aggravated larceny - armed robbery, for example - the accused cannot be convicted of the aggravated offence unless the circumstances of aggravation are proved by other evidence to the jury's satisfaction beyond reasonable doubt. Thus, in the present case, the breaking and entering of the shop by the thief had to be proved beyond reasonable doubt by evidence other than the recent possession. But if it be proved that the thief broke and entered, proof that the accused was found shortly afterwards in possession of goods stolen on the occasion of the breaking and entering is a sufficient foundation for the inference that he was the thief. It is also a sufficient foundation for the inference that he was the receiver, not the thief, and, subject to the qualification earlier stated with reference to alternative offences carrying different maximum penalties, it is for the jury to determine on the balance of probabilities which (if either) of the guilty inferences should be drawn. I respectfully agree with the reasons which their Honours in the majority state for rejecting the contrary view expressed in Attorney-General of Hong Kong v. Yip Kai-foon (1988) AC 642.

7. However, for the reasons I have given, the choice between guilty inferences can be made on the balance of probabilities only when the jury are satisfied beyond reasonable doubt that the accused is guilty of either one or other of two offences carrying the same maximum penalty, the one containing the elements of larceny, the other the elements of receiving. That choice may have to be made when the two offences are charged alternatively in an indictment or where they are alternative offences open to the jury on an indictment charging other offences. Where the two offences carry different penalties, the jury should be directed that they cannot convict of the more serious offence unless they are satisfied beyond reasonable doubt in the circumstances of the case that the correct inference to draw is guilt of the more serious offence. If they are not so satisfied, the remaining inference of guilt open to them is guilt of the less serious offence. In such a situation, there is a logical asymmetry in the approach to be taken by the jury to the two offences, but it does no violence to the principle that the verdict determines the scope of the sentencing power. In such cases, the jury should first be directed, in accordance with Schama and Abramovitch (usefully explained in Garth (1949) 33 Cr App R 100), to consider whether they are satisfied beyond reasonable doubt that the accused, having been found in recent possession of stolen goods, is guilty of one or other of the two offences. Next, they should determine whether they are satisfied beyond reasonable doubt that the accused was the thief or the receiver, as the case may be (depending on the element in the more serious offence). If they are so satisfied, they will convict of the more serious offence. If they are not so satisfied, they must acquit of the more serious offence and, having rejected the more serious inference, they are entitled as a matter of law to conclude that the accused was the receiver or the thief (depending on the element in the less serious offence). If they are not satisfied beyond reasonable doubt that the accused was either the receiver or the thief, they must acquit of both offences.

8. I am respectfully unable to agree with their Honours in the majority that the more serious offence is to be determined as a preliminary exercise of the sentencing discretion by the trial judge. It is contrary to principle and to practice to permit or require a trial judge to give a jury a direction, being a direction on a matter of fact, as to which offence is likely to be visited with a more severe or less severe sentence. Nor do I foresee any practical prospect of the judge forming such a view with any confidence before he or she is acquainted with details of the accused's antecedents and other facts that are usually and properly withheld from the judge until after conviction, if conviction there be.

9. In the present case, as the offences charged in the indictment carried the same maximum penalty, the balance of probabilities direction was correct.

10. I would grant special leave to appeal but dismiss the appeal.

GAUDRON J. The facts and the relevant legislative provisions are set out in the joint judgment of Mason C.J., Deane, Dawson and Toohey JJ. I agree with their Honours, substantially for the reasons that they give, that, where a person is charged in the alternative with stealing and receiving stolen goods and the evidence is consistent with either, the jury should be instructed that, if they are satisfied beyond reasonable doubt that the accused is guilty of one or other of the offences but are unable to say which, they should return a verdict of guilty of the less serious offence.

2. I do not regard the problem in the present case as one touching the duty of the prosecution to prove guilt beyond reasonable doubt. As I see it, it is a problem of selecting the order in which the jury should consider the offences charged. In the situation under contemplation there are only two possibilities: the accused is guilty of one offence or he is guilty of the other. And exclusion of guilt of one offence will necessarily involve proof of guilt of the other. Because the jury is unable at the stage presently under contemplation to say of which offence the accused is guilty, it follows that guilt will be excluded with respect to whichever offence is first considered and that will, without more, establish guilt of the other. In that situation, the accused is not disadvantaged if the jury is instructed that the more serious offence should be considered first, or, which is the same thing in effect, that they should return a verdict of guilty of the less serious offence.

3. Special leave to appeal should be granted. The appeal should be dismissed.

McHUGH J. The applicant seeks special leave to appeal against a conviction of receiving which is made an offence by s.196(1) of the Criminal Law Consolidation Act 1935 (S.A.) ("the Act"). The applicant was acquitted of shopbreaking and larceny in respect of the same property. Under s.196(2) of the Act, charges of stealing property and of feloniously receiving the same property or part of it may be included in separate counts of the same information and tried together.

2. The question in the application is whether the trial judge erred in law in directing the jury that, if they were satisfied beyond reasonable doubt that the accused was guilty of one or other of the two offences, "then you must determine on the balance of probabilities which of those offences it is which he has committed". The direction of the learned judge was in accordance with authority in South Australia: Ghys v. Crafter (1934) SASR 28, at p 31; Reg. v. Dawson (1964) SASR 256, at p 260; Buckingham v. The Queen (unreported, Court of Criminal Appeal of South Australia, 12 February 1990). The origin of the direction is the remarks of Pollock CB in the Court for Crown Cases Reserved in Reg. v. Langmead (1864) Le and Ca 427 (169 ER 1459); 9 Cox CC 464.

3. The Crown defended the direction on the ground that, without it, an accused person would have to be acquitted of both charges in cases where the Crown has to rely on the doctrine of possession of recently stolen property to prove its case and the accused has given no explanation of how he or she came into possession of the stolen property. The Crown contended that the accused would have to be acquitted of both charges because, if there was no other evidence, possession of recently stolen property would be consistent with both stealing and receiving. Consequently, the jury would have to have a reasonable doubt in respect of each charge.

4. If the direction is correct, and has been acted on by juries in South Australia in reaching their verdicts, it means, of course, that persons in that State have been found guilty of criminal offences on the balance of probabilities. It also means that, although ex hypothesi the jury have a reasonable doubt about each offence, they must still convict the accused of one of the offences. Exceptionally, if evidence of possession of recently stolen property is, in the circumstances of the case, equally consistent with both stealing and receiving, the direction would implicitly require the acquittal of the accused even though the jury were convinced beyond reasonable doubt that the accused was guilty of one or other of the offences.

5. In my opinion, the direction proceeds on an erroneous basis as to the way in which a jury should be directed in a case where the accused is charged with alternative counts of stealing (or burglary or robbery) and receiving. Both charges require proof that property has been stolen. If the property was not stolen, the accused must be acquitted on both counts. But the count of stealing requires proof that the accused stole the property while the count of receiving requires proof that someone other than the accused stole the property. If there is no evidence capable of proving one of these alternatives, the count requiring proof of that alternative cannot be left to the jury. The hypothesis upon which s.196(2) proceeds, therefore, is that the evidence, if accepted, is capable of supporting beyond reasonable doubt an inference that the accused was the thief and an inference that he or she was not the thief. Given the hypothesis, it seems unlikely that it was the intention of the legislature that the jury should consider both charges together and that, unless they were convinced beyond reasonable doubt of one of the two inferences, the accused should be acquitted of both charges. If that was the intention of the legislature, s.196(2) would have no substantive effect. Yet the history of the section shows that it was intended to have a substantive effect.

6. The origin of s.196(2) is the Imperial enactment - 11 and 12 Vict. c.46, s.3. That Act was headed "An Act for the Removal of Defects in the Administration of Criminal Justice". After reciting that the present practice of courts of criminal jurisdiction did not permit counts of stealing and receiving to be tried together and that "justice is hereby often defeated", s.3 empowered the joinder of such counts and declared that "the prosecutor shall not be put to his election, but it shall be lawful for the jury who shall try the same to find a verdict of guilty, either of stealing the property or of receiving it knowing it to have been stolen". But it can hardly have been intended that the jury should reach their verdict arbitrarily. Nor is there anything in that legislation, or s.196(2) for that matter, which supports the view that the legislature intended that the jury should reach their verdict on the balance of probabilities or find the accused guilty of the less serious offence. How then are the jury to approach their task?

7. Charges of stealing and receiving are true alternatives. The accused can be guilty of one charge but not both. Possession of recently stolen property raises a presumption that the accused stole the property, but if the proper conclusion is that he or she did not steal it, the inference can be drawn that he or she received it, knowing that someone else stole it: Trainer v. The King (1906) 4 CLR 126, at pp 132-133. Proof in a stealing case, however, always goes beyond any presumption arising from the bare fact of possession of recently stolen property. Even in cases where there is no direct evidence as to who stole the property, inferences can always be drawn from the nature and place of the accused's possession, the value and type of property, and the length of time between the theft and discovery of the accused's possession. In some cases, the circumstances may confirm or strengthen the presumption that the accused stole the property; in other cases, the circumstances may negative that presumption. Once the presumption that the accused stole the property is negatived or, to put it more accurately, once the Crown has failed to prove beyond reasonable doubt that the accused stole the property, the alternative inference arises: the accused received the property knowing that some other person had stolen it. Nevertheless, once the accused is acquitted of stealing the property, it seems most unlikely that, having permitted counts of stealing and receiving to be tried together, the legislature intended that, to obtain a conviction on the receiving charge, the Crown should then have to prove beyond reasonable doubt that the accused had not stolen the property.

8. I think the starting point must be that, although possession of recently stolen property can be evidence of stealing or receiving, the presumption is that the possessor of that property has stolen it. The jury, therefore, should begin with the issue whether the accused is guilty of stealing. Consequently, they should be directed that they must begin by determining whether the accused is guilty on the stealing count. This raises two questions: Was the property stolen? And was the accused the person who stole the property? If the jury are persuaded beyond reasonable doubt that the property was stolen and that the accused was the thief, the charge of receiving becomes irrelevant. If, on the other hand, the jury are unable to conclude beyond reasonable doubt that the accused stole the property, they must acquit him or her of the charge of stealing. But this conclusion has consequences for the receiving charge: in considering that charge, the jury have to be directed that they must determine the receiving charge on the basis that the accused is innocent of the charge of stealing and that some other person has stolen the property. As I have already indicated, it is not to be supposed that the legislature intended that, after acquitting the accused of the stealing charge, the jury had then to be satisfied beyond reasonable doubt that the accused was not the person who stole the property before they could find him or her guilty of the alternative charge of receiving. As between the Crown and the accused, the acquittal of the accused on the stealing charge establishes that, for the purpose of the receiving charge, the accused was not the person who stole the property. Any doubt about that issue is resolved when the jury acquit him or her on the stealing count. Thus, after the acquittal on the stealing charge, the issue on the receiving charge is whether the accused received the stolen property knowing at the time that it was stolen. The Crown must prove that issue beyond reasonable doubt.

9. I do not think that in practice the foregoing procedure will cause any problems for the jury when they consider the receiving charge. Once the jury find that the accused has possession of stolen property, the only real issue is that person's state of mind when he or she received the property. If the jury can make a finding as to the time and circumstances in which the accused received the property, no question of the accused being the thief will trouble them. If they cannot make a finding about the time and circumstances, they must rely as to the accused's state of mind on inferences drawn from such matters as the nature and place of the accused's possession, the value and type of property, the length of time between theft and discovery of possession and the finding that the accused is not the thief. Any thoughts that the jury may previously have had about the accused being the thief, therefore, should not affect their deliberations as to whether the accused knew the property was stolen when he or she took possession of it.

10. If the jury are directed to approach the matter in the foregoing way, they will reach their verdict in accordance with the principle that no matter "what the charge or where the trial" the prosecution must prove the guilt of the accused beyond reasonable doubt. This is the "golden thread" which runs throughout "the web of the English Criminal Law": Woolmington v. The Director of Public Prosecutions (1935) AC 462, at p 481. If the charges are approached in the manner I have suggested, no question of deciding the case on the balance of probabilities arises. This approach is also preferable to directing the jury that, if they are convinced beyond reasonable doubt that the accused is guilty of one of the charges but cannot decide which, they should convict him or her of the less serious charge. In every case where the jury convict only because of the "less serious charge" direction, it means that the jury convict the accused in respect of a charge about which they have a reasonable doubt, since, ex hypothesi, they have not been convinced beyond reasonable doubt of his or her guilt on that charge. Moreover, unless the penalties set by the legislature are the criteria for determining which is the less serious charge, there will often be real difficulty in determining that issue. Evidence which is admissible on sentence but not at the trial of the offences may show that the offence for which the accused was convicted was the more serious offence. On the other hand, to use the legislative penalties as the criteria for determining the less serious charge means that the accused may be convicted of the charge which, in the circumstances of that case, is the more serious charge.

11. The decision in Langmead does not justify the direction which was given in this case. The question reserved for the Court for Crown Cases Reserved in that case was "(w)hether, upon the whole case, the jury should have been directed that they could not lawfully find the prisoner guilty" on a count of receiving. The five members of the Court, for varying reasons, held that the question should be answered in the negative. There are significant differences between the report in Leigh and Cave and the report in Cox's Criminal Cases. The most favourable report from the Crown's point of view is that in Leigh and Cave. That report states that Pollock C.B. said (at p 440 (p 1464 of ER)) that "it will be for the jury to say which appears to them to be the more probable solution". The same report states that Blackburn J. said (at p 441 (p 1464 of ER)): "If other circumstances shew that it is more probable that he was not the thief, the presumption would be that he was the receiver." Blackburn J. is also reported to have said (at p 442 (p 1464 of ER)): "It is more probable, therefore, that the sheep had been stolen previously by some other person". In the report of Cox, Pollock C.B. is reported as saying (at p 467-468):
"No doubt, upon the evidence, no other person than the
prisoner appears distinctly to enter into the transaction, and all that appears is that the prisoner was found very recently in possession of the stolen sheep. That prima facie is evidence of stealing rather than of receiving; but in no case can it be said to be exclusively such unless the party is found so recently in possession of stolen property, and under such circumstances, as to exclude the probability of receiving - as where a party is stopped coming out of a room with a gold watch which has been taken from the room; but if he has left the room so long as to render it probable that he may have received it from some one else, then it may be evidence either of stealing or of feloniously receiving. In the present case, I think that the evidence of receiving was more cogent than that of stealing." Thus, the relevant passage in Pollock C.B.'s judgment in Leigh and Cave's report is not included in Cox's report. The relevant passages in Blackburn J.'s judgment also do not appear in Cox. He is reported there as saying (at p 468):

"As a proposition of law, there is no presumption that recent possession points more to stealing than receiving. If a party is in possession of stolen property recently after the stealing, it lies on him to account for his possession, and if he fails to account for it satisfactorily, he is reasonably presumed to have come by it dishonestly; but it depends on the surrounding circumstances whether he is guilty of receiving or stealing. Whenever the circumstances are such as render it more likely that he did not steal the property, the presumption is that he received it. In the present case, I believe that the jury have drawn the right conclusion."

12. The references to probabilities in Leigh and Cave are a very slight foundation for holding that juries should be directed that, if they are satisfied beyond reasonable doubt that the accused is guilty of one or other offence, they should decide which offence on the balance of probabilities. Langmead was not concerned with the direction to be given to a jury but with whether there was evidence to support the verdict. It is not an authority as to the standard of proof which the jury must apply before convicting: see Shepherd v. The Queen (1990) 65 ALJR 132, at p 140; 97 ALR 161, at pp 175-176.

13. In all the circumstances, I do not think that the remarks attributed by one reporter to two members of the Court in Langmead justify the course of authority in South Australia on this issue. It is a large step to hold that juries should be directed in a way which requires them to convict an accused on the balance of probabilities. It is a still larger step when the result of the direction may be that the accused is convicted on the balance of probabilities of the more serious of the two charges.
Order

14. Although the trial judge directed the jury in terms of probabilities, no miscarriage of justice has occurred. Both offences carried the same penalty. The jury were not convinced beyond reasonable doubt that the applicant was the thief since they acquitted him of the stealing charge. But to convict him at all they had to be convinced beyond reasonable doubt that he was guilty of one of the offences. In the circumstances, if they had been properly directed, they must have found him guilty of the receiving charge.

15. Special leave should be granted, but the appeal should be dismissed.

Orders

Application for special leave to appeal granted.

Appeal dismissed.