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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Gilson v The Queen [1991] HCA 24
Case
[1991] HCA 24
Decision Date
CaseChat Overview and Summary
In *Gilson v The Queen*, the High Court of Australia considered an appeal by the applicant, Gilson, against his conviction for murder. The central dispute concerned the admissibility of a confession made by Gilson to police, which he argued was obtained in circumstances that rendered it involuntary and therefore inadmissible.
The High Court was required to determine whether the confession was made voluntarily, having regard to the conduct of the police officers during the interview. Specifically, the Court had to assess whether the interview tactics employed by the police amounted to oppression or inducement, thereby vitiating the voluntariness of Gilson's statement.
The Court applied the established legal principles governing the admissibility of confessions, which require that a confession must be voluntary to be admitted into evidence. This means it must not have been made under duress, coercion, or as a result of inducements held out by persons in authority. The judges examined the transcript of the interview and the surrounding circumstances, considering whether Gilson's will was overborne by the police's conduct. They concluded that the interview, while lengthy and persistent, did not reach the level of oppression or inducement that would render the confession involuntary. The Court found that Gilson was not subjected to undue pressure and that his confession was a product of his own volition.
The High Court dismissed the appeal, upholding the conviction.