Gilson v The Queen

[1991] HCATrans 74

_.

~, AUSTllilIA,,ll"

-~» ... ~'-'

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A22 of 1990

B e t w e e n -

RICHARD WILLIAM GILSON

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Gilson 14/3/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 MARCH 1991, AT 11.44 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:  May it please the Court, I appear

with my learned friend, MR C.J. KOURAKIS, for the

applicant in this case. (instructed by

Zacharoyannis Luppino & Eckermann)

MS C.M. BRANSON:  May it please the Court, I appear for the

respondent. (instructed by the Crown Solicitor for

South Australia)

MASON CJ: Yes, Mr Tilmouth.

MR TILMOUTH:  May it please the Court, we submit our written

outline.

MASON CJ: Thank you.

MR TILMOUTH:  May it please Your Honours, Your Honours will

see from page 1 of the appeal book that the

applicant was charged with shopbreaking and larceny
and receiving in the alternative. That is common

practice in South Australia and it is authorized

under section 196 of the Criminal Law Consolidation

Act.

In his charge to the jury, the learned trial

judge directed the jury in conventional terms as to

the onus of proof, pages 5 and 6 of the appeal

book, and without reading it all, Your Honours, I

highlight the particular passage at page 5, lines 5

to 6 where His Honour said that proof -

beyond reasonable doubt ..... applies to every
ingredient of the charge and I will come to

those ingredients in a moment.

That is a perfectly conventional summing up to a

jury, and at page 6 for completeness I point out,

Your Honours, that His Honour said that as is often

the case in South Australia, "When I talk about

being satisfied you, the jury, will understand

satisfied beyond all reasonable doubt."

However, at page 7 of the appeal book,

His Honour gave a direction which was, in our

experience, relatively unconventional, as follows:

he directed them that the jury could not find the

applicant guilty of both offences and said this, at

lines 4 and 5:

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

Gilson 14/3/91

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.

We complain on this appeal, the focal argument on the appeal is the use of the words:

you must determine on the balance of

probabilities which of those offences it is -

Your Honours, just to complete the cycle in the

summing up, I point out that directions were given

at pages 14 and 15 relating to recent possession in

fairly traditional terms and, at the end of those

directions, page 15, line 18, His Honour said:

However, you may if you think it is

appropriate to draw the inference adversely to the accused and by that inference be satisfied

that the accused is guilty of either stealing

the property or of dishonestly receiving it.

And, as Your Honour knows, the jury was sent

out to retire. They came back after four hours and

returned a unanimous verdict of guilty on the

second charge of receiving.

Incidentally, Your Honours, in South Australia

both offences bear the same statutory maximum

penalty - eight years, I think. However receiving is generally, as a matter of sentencing practice -

not invariably but generally - one which is given a

lesser penalty.

Your Honours, our submission is that the

direction, at page 7, is unsupported by the balance

of authority - perhaps the overwhelming balance of

authority, in our submission.	Your Honours, so far
as Australia is concerned, the case of Bruce,
(1988) VR 579, is in point.	I do not trouble the

Court with the facts but Your Honours will see, conveniently in the headnote, there was a direction

which is akin to the direction here. That

direction is at about line 33:

"Were you in doubt as to which he was, namely

the thief or the receiver, but you had no

reasonable doubt that he was one or the other,

you should find only the lesser, that he was a

receiver of the property as alleged in each of

the counts, alleging in the alternative,

handling of the hardware equipment."

Now, that direction was disapproved by the

Court of Criminal Appeal in Victoria in this case

Gilson 3 14/3/91

and it ordered a retrial on that direction. If the

Court pleases, the judgment of Mr Justice Gray,

which is delivered for the whole court, is

important and it is lengthy but I seek to isolate

only the critical passages, beginning at page 597.

His Honour held, at page 597, at line 25, that the

direction that I have just mentioned was a

direction which:

should not be allowed to stand.

Line 26. His Honour then went on to refer to

section 88 of the Crimes Act, Victoria; repeated

the direction that I have just read from the

headnote and, over on to page 598, referred to

Woolmington's case at line 4:

For a very long period before Woolmington

it seems clear that proof of possession of

recently stolen property was regarded as

giving rise to a presumption that the accused

was the thief or receiver.

And then he cites a passage from Russell on Crime

in support.	He returns to Woolmington's case at
line 43:

But even before Woolmington's Case, the

Court of Criminal Appeal had held in Schama

that in such cases the burden of proof of

guilt rests throughout upon the prosecution

and that a jury should be told that it may,

not must, find guilt in the absence of a

reasonable explanation.

But in cases where stealing and receiving

were charged in the alternative, it appears to

have been the practice to invite the jury, in
the absence of a reasonable explanation, to
make a selection between stealing and

receiving in accordance with the

probabilities.

And Langmead is cited.

In R v Langmead Chief Baron Pollock expressed

the view that where the evidence is consistent

with either stealing or receiving ttit will be

left to the jury to say which appears to them

to be the more probable".

And then His Honour goes on to make some other references from Kenny and draws the conclusion, however, at line 15 as follows:

It is an inescapable conclusion that in

most possession cases juries were implicitly

Gilson 4 14/3/91

invited to find guilt on a basis other than

proof beyond reasonable doubt. But, except in

Langmead's Case, this does not seem to have

been expressed. Nor does one find any

discussion as to why a finding of guilt can, in these cases, be justified upon a basis of

mere probability or, perhaps, something less.

And our point will be, Your Honours, that there is

no such case except for the line of authorities in

South Australia to which I will come in a moment.

His Honour goes on to make the point that under

section 88 of the Crimes Act Victoria, this is

around lines 25 to 30, that the Theft Act and the

Crimes Act provide that receiving must be otherwise

in the course of stealing and that, with respect

Your Honours, was no more than the common law

position that you could not be a receiver from

yourself. In other words, the law even though it

is governed by statute in Bruce there is no

material difference for current purposes with the

common law as it applies in South Australia.

His Honour then goes on to refer to

Seymour's case, line 38, and refers to the rule in

Seymour's case at the bottom of that passage, that

the jury should be reminded, lines 43 and 44:

that a man cannot receive from himself.

His Honour then goes on to say this:

In a case where the evidence is "as

consistent with stealing as with receiving" it

is difficult to see how the jury could ever

give effect to the trial Judge's directions

unless it dealt with the matter upon the

probabilities as in Langmead's Case. But

there is no doubt that in this State juries

were regularly directed in the terms of	Seymour's Case until very recent times.	Indeed, in the first part of his direction on
this topic the learned trial Judge follows
this course. However, it was not customary to
tell a jury that it may find guilt of receiving even though not satisfied that the
particular crime had been committed. Nor was
it customary to tell the jury that it could
make the findings of guilt based upon
probability.

The same situation appears to be the case in South

Australia, Your Honours. Where the trial judge got

the direction from in this case is not known but we

are not able to point to any case in recent living

memory, say, the last two decades, where any

Gilson 14/3/91

direction along these lines has ever been given in

South Australia.

And finally, Your Honours, I realize I am

picking passages from the case, I have already said

the whole judgment is important, but His Honour

concluded at 601, line 3:

The present position can hardly be

regarded as satisfactory. The authors of the

42nd edition of Archbold, Criminal Pleading

Evidence and Practice, express the view that

in a case where the evidence is consistent

with theft or receiving that, subject to the

effect that may be given to Stapylton's Case,

the accused should be acquitted on each count.

I am disposed to share this opinion. I

consider that a jury should be directed that

it must be satisfied of facts constituting one

crime or the other before finding guilt.

And that, precisely, is our point, if the Court

pleases.

Your Honours, the same ruling was made in the Privy Council decision of the Attorney-General for

Hong Kong and Yip Kai-foon, (1988) 1 AC 642.

Again, I do not bother Your Honours with the

facts. They are summarized in the headnote. It is

the principle we extract and the principle from this case, we submit, is indistinguishable from

what happened in this case. The jury was directed

in Yip Kai-foon that, as the Court can see from the

headnote at the top of 643 just above the letter B,

they should:

convict of whichever of robbery or handling

more probable -

or likely in the circumstances. Effectively the

same direction as we have in the case here.

The opinion of the board was delivered by

Lord Ackner and at page 654 to page 655 - indeed at
page 653 - His Lordship deals extensively with
Langmead's case and extracts the relevant judgments

from Landmead's case. He refers to the remarks of

Chief Baron Pollock at the bottom of page 654 and

more importantly over onto page 655 where

Chief Baron Pollock at line E talked about the jury being able:

to say which appears to them to be the more

probable solution.

Gilson 6 14/3/91

I mention that, Your Honour, because the South

Australian line of authorities show that the

genesis of the direction in this case goes back to

Chief Baron Pollock in Langmead's case.

However, after referring to Langmead's case in

some detail, Lord Ackner concluded for the board as

follows at page 656 in its advice, line 3:

In speculating as to how the jury might

have arrived at their verdict -

this is speaking of Langmead -

the judges were in no manner suggesting that a

judge, in his summing up should direct the

jury that, where a person is charged with
theft and in the alternative with receiving,

and the evidence (or the sole evidence)

connecting him with the offence is the recent

possession of the stolen property, then if the

only reasonable inference is that he must have

either stolen the property or received it

knowing it to be stolen, they should ask

themselves which is the more probable offence

and convict accordingly. There is no

reflection of such a rule in English

authorities -

similar remarks to Justice Gray in Bruce's case -

and Langmead has not been cited in any English

judgments for such a proposition.

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 - - -

BRENNAN J: Is that not focusing on the proposition that

recent possession is the only reasonable inference

that must be drawn? Because the old learning was
that recent possession did not compel

conviction - - -

MR TILMOUTH: Yes,it was.

BRENNAN J:  - - - it simply was sufficient evidence to

support a conviction.

MR TILMOUTH:  That is right. And the "jury may" but not

must, is the traditional direction, "infer", et

cetera.

Gilson	14/3/91
BRENNAN J:	"May" but not must.
MR TILMOUTH:	But the importance of that passage, with

respect, is it goes beyond what we submit

Langmead's case really speaks about, namely

inferences, and only inferences, not onuses. This case, like Bruce, is authority for the proposition that the ultimate onus is still the criminal onus,

beyond reasonable doubt.

Justice Gray, in his judgment, and by

inference here, is stating that the two offences

are mutually exclusive and the Court can see - I do

not read it but from D to Fon page 656 Lord Ackner

suggests what a proper direction would be and that

is the direction we suggest in our written outline

in one of the later paragraphs. In effect, the

direction is, you consider the major offence first,

shop breaking, as in this case, you consider whether all the offences are made out beyond reasonable doubt; if not, you then proceed to the

second charge and you go through the ingredients

again in the usual way. If the jury is in doubt,

there is not a sufficient majority either way, then the proper course is to discharge. That appears at

just after line F.

But, if the Court pleases, in our submission,

this Privy Council decision is indistinguishable

from the summing up which was given in this case.

Incidentally, I should add that the board went on

to apply the proviso, pages 658 to 659, but only because, Your Honours, 658, at the bottom of the page, the jury had come out and asked:

"We require a redirection from the judge

of the law relating to the lesser charge after
the (defendant) has been found not guilty of

robbery."

So they said that there was no doubt that they had

eliminated the first charge anyway before
proceeding to the second.	We would argue, with the

greatest of respect, that the application of the

proviso to a misdirection on the onus of proof was
wrong but, in any event, the application of the
proviso in this Privy Council decision could be

distinguished for that reason.

Your Honours, the next case, which is also in

point, although what was said was obiter is the

decision of the Canadian Supreme Court in Kowlyk v

Reg, (1989) 43 CCC (3d) 1. Your Honours, we have

since drawing the list of authorities ascertained
it is also reported in (1988) 2 SCR 59, but we have

the Canadian Criminal Cases reference.

Gilson 14/3/91

Your Honours, I do not deal with the facts.

We do not call in aid the cases directly in point

but there is very strong obiter in support of our

case. At page 12, in the judgment of the majority,

upholding a conviction for receiving, the court

referred to the judgment of

Appeal Justice O'Sullivan in the court below, the

Manitoba Court of Criminal Appeal. At the middle

of page 12 the court referred to this ruling:

Before reaching this conclusion, however,

O'Sullivan JA said:

In my opinion, the doctrine of recent

possession is that, where the doctrine
applies, an accused may be found guilty of
either theft or unlawful possession, even

though it remains quite impossible to say of

which he is guilty. The law is that where a

jury is in no doubt that the accused is guilty
of one or the other of these offences, the
jury may convict even though it has reasonable

doubt as to which to convict of.

His Honour went on to say this for the Court, the

four judges, including himself:

While I am in agreement with the result

reached by the majority, I am unable to agree

with O'Sullivan J.A's statement of the

doctrine of recent possession. In my view, it

is erroneous and based on a misunderstanding

of some of the judgments which he considered in reaching his conclusion. 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.

In summary then, it is my view, based on

the cases, both English and Canadian -

and Your Honours will see from the earlier judgment

His Honour referred to Langmead, Schama and

Loughlin -

that what has been called the doctrine of

recent possession may be succinctly stated in

the following terms.

And then His Honour goes on to make a statement
with which we do not quarrel, and I do not read

because it is -

DAWSON J:  So you do not quarrel with the proposition that

recent possession will support an inference of

theft?

Gilson	9	14/3/91
MR TILMOUTH:	No, or receiving.	We do not quarrel with

that.

DAWSON J:  But it is very rarely that without more it would

support an inference of theft, is it not?

MR TILMOUTH: That would be true as a matter of practical

operation, and particularly in this case, of

course, where there were a number of days between

the theft and possession. But in general terms we

do not quarrel with the proposition stated there,

although we would quarrel if it were necessary with

any suggestion that, prima facie, as some of the

old cases said, the inference may be that of theft

rather than receiving.

DAWSON J:  The doctrine of recent possession depends upon

the failure to give a reasonable explanation, does

it not?

MR TILMOUTH:  It does, or perhaps now one which the jury

rejects.

DAWSON J:  And it has the effect of really reversing the

onus, in effect?

MR TILMOUTH: It did, with respect, in, if I can put it this

way, the older days. These days through a series

of decisions - Beljajev, for example, in Victoria

and Bellamy in New South Wales, and a case of

Wanganeen in South Australia - it is now simply regarded as an example of circumstantial evidence,

and the courts have repeatedly, in our submission,

striven to advise trial judges to avoid using words

like "onus" or "prE:sumption" and so on. But in our

submission, it is no· - - -

DAWSON J: Well, how does the failure to offer a reasonable

explanation enter into the whole thing at all?.

MR TILMOUTH:  It is a matter from which the jury might infer

that the person charged is the thief or the

receiver, but they are not obliged to, and it is no

more than just a rule of circumstantial - - -

DAWSON J:  We dealt with this fairly recently, in a case, did we not, to some extent?

MR TILMOUTH: In Shepherd's case - is that the case

Your Honour has in mind?

DAWSON J:	No, on recent possession, but do not worry.
MR TILMOUTH:	It may have been Bruce when Bruce went to the

High Court.

TOOHEY J: It was, Mr Tilmouth.

Gilson 10 14/3/91

MR TILMOUTH:  Yes, Bruce was, as I recollect it,

Your Honours, - - -

TOOHEY J:	You will see the reference in 74 ALR 219.
MR TILMOUTH:	Indeed, as I recollect that, Your Honours,

that was mainly concerned with what inference you

may draw from the exercise of the right to silence,

and the decision did not touch the point in issue

here.	I do not purport to be totally accurate,
but -

DAWSON J: But it does deal with the doctrine of recent

possession and the inferences which can be drawn

from it.

MR TILMOUTH:  It does, yes. I accept that. Your Honours,

to complete the reference in Kowlyk, Her Honour

Justice Wilson was in dissent on the result, but

she was also at one with the other members of the

court on the passage I have just read.	Her
judgment for this purpose is at page 23.	She said
at page 23 about point 7:

This characterization of the doctrine of

trial judge and of Monnin C.J.M.

recent possession, explicit in those of the

constitutes reversible error.

The case-law indicates that the fact of recent possession entitles a jury to enter a

verdict of guilty of the offence of break,

enter and theft if the circumstances of the

case establish guilt beyond a reasonable

doubt. The cases do not stand for the

proposition that the fact of recent possession

allows a conviction for break, enter and theft

where it is "quite impossible" (to use the

words of O'Sullivan J.A.) to determine whether

the accused committed the offence or not.

So, whilst Justice O'Sullivan's words were

slightly different, nevertheless the considered

dicta of the Supreme Court of Canada unanimously

supports, we submit, our contentions.

Your Honours, the only other case which we

draw in aid is the Irish decision of The People v

Oglesby, (1966) IR 162. It is not directly in

point, Your Honours, because there was not a

direction which was given as here. But it is in

point because, we submit, there is a clear

rejection of the principle in Langmead's case.

Again, I do not refer to the facts. I go the joint

judgment of the court at page 165, at about

point 6:

Gilson 11 14/3/91

In the opinion of this Court the so-

called "doctrine of recent possession'' does

not alter the law relating to the onus of

proof in criminal cases as it was stated in

Wooolmington's Case, and the unreported

decision of the Supreme Court in The People v

Quinn, given on 18th December, 1964. The

cases decided before 1935 in relation to the

so-called doc~rine of recent possession in

receiving cases, in so far as they decide that

an onus lies on an accused person in

possession of goods which have been recently

stolen to give an explanation or in so far as

they decide that the jury may convict him if

they reject the explanation which he gives,

must now be regarded as incorrect.

The court then goes on to consider Langmead's

case. It refers, Your Honours will notice at

page 166, to Chief Baron Pollock's words: "the

probable solution", at about point 3; to refer to

the judgment of Justice Blackburn, point 3 to

point 4, in which His Honour said, at about
point 4, that the doctrine may give rise to the

inference:

" ... that he was either the thief or the

receiver according to the circumstances."

Although this passage in the judgment of

Mr Justice Blackburn was cited with approval

by Mr Justice O'Byrne when delivering the

judgment of the Supreme Court in The People

(Attorney General) v Carney, we are of opinion

that it does not now correctly state the law.

Any language used by a judge which may convey

to a jury that there is an obligation imposed

on the accused to give an explanation and that

if he fails to do so or that if they do not

believe it, they are then entitled to convict
may lead the jury to think that that is the

issue which they have to try. But the true

question in every criminal case is whether the

prosecution have proved the guilt of the

accused beyond reasonable doubt.

The rest of the judgment, Your Honours, is

important but I simply point out that the court

went on to approve Schama's case, which has already

been referred to in passing, and made again a

reference to Woolmington's case, page 167, point 3.

Although that case is clearly not on all fours

with the case here and although the court does not

specifically deal with Chief Baron Pollock's

remarks in Langmead, the rejection of

Justice Blackburn, in my submission, the positive

Gilson 12 14/3/91

rejection of him implies a rejection also of the

wider statement made by Chief Baron Pollock.

BRENNAN J:  But there are two points, are there not? whether this so-called doctrine should be expressed One is

in terms of failure to give an explanation. And I

notice that in Bruce's case it was said that - and

I am quoting from an extract of it in Carter:

It would have been better had the trial judge

spoken in terms of the unexplained fact of

possession rather than the failure of the

accused person to give an explanation.

MR TILMOUTH:	Yes.
BRENNAN J:	That is one aspect of it. The second aspect of

it is whether or not, if the jury do decide to act

upon the evidence, it is by itself sufficient proof

beyond reasonable doubt of the elements of either

of those crimes and Schama and Abramovitch

certainly fell no way short of Woolmington in

stressing the importance of proof beyond reasonable

doubt.

MR TILMOUTH: That is true. And, Your Honour, the mere fact

of the failure to give an explanation, or if it
applies a rejected explanation, cannot overcome any

other deficiencies in proof, for example, if there

was no evidence of original theft - Trainer's case

- so that would be one example, I would submit,

where if the only evidence is the failure to give

an explanation or rejected explanation where there still would not be sufficient evidence to convict.

The danger is, in my submission, in any direction

of implying that the mere absence of an explanation

is enough to convict without being satisfied about

each of the discrete elements of the offence beyond

reasonable doubt. Sorry, whilst this is partly

answer to Your Honour Justice Brennan and a further

answer to Your Honour Justice Dawson from the

earlier question, whilst of course unexplained

possession can be a basis for inferring guilt, it

cannot replace otherwise satisfactory proof of the

other elements of the offence.	I hope that is a
sufficient answer, Your Honours.

Your Honours, can I go to Langmead's case.

Our report is (1864) 169 ER 1459. I do not want to

reread the references made already to some of the

judgments in this case but to cite it to make these

points. Firstly, Your Honours, Langmead's case, or

the ratio of Langmead's case, as appears from 1463

at the bottom and 1464 at the top, was simply

this - there was a charge here of stealing,

incidentally, and receiving and there was a

conviction on the latter which was upheld. But

Gilson 13 14/3/91

counsel argued in Langmead simply that "recent

possession" unexplained gave rise to an inference

of theft but not of receiving. The court rejected

that proposition and said, per Chief Baron Pollick,

in particular, at the top of page 1464, that it can

be used for either purpose.

Now, that is the ratio of the case, if the

Court pleases, and that is an important starting

point. However, when one reads on at page 1464

Chief Baron Pollock, in our submission, when he is

talking about the probable solution, just after the

reference to page 440 in the nominate reports Le &

Ca, His Honour, in our submission, in that passage:

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

someone else, it will be for the jury to say

which appears to them to be the more

probable -

is simply stating in the context of the times

before Woolmington no more than what inferences
they may draw and is not stating when properly

read, in our submission, anything qualifying the

onus of proof of the ultimate ingredient. And, in

our submission, that is the way Langmead's case

should be read.

The only other judge who talks in terms of

probabilities is Justice Blackburn, towards the

bottom of the page in the middle of that large

paragraph, where His Honour says:

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.

And the third to last line:

It is more probable, therefore, that the sheep

had been stolen -

and he goes on to say therefore there was evidence

justifying the verdict. Now, again, when properly

read although, of course, what is stated is

Gilson 14 14/3/91

slightly ambiguous, Their Honours, in our

respectful - - -

DAWSON J:  Which report are you - the one we have got bears

no resemblance?

MR TILMOUTH: That is an interesting point, Your Honours.

Does Your Honour have Cox's Criminal Cases?

DAWSON J: Yes.

MR TILMOUTH:  May it please Your Honour, that was the next

point I was about to make. Your Honours will see

that on our list is 9 Cox CC, and at the bottom of

page 467 Your Honours will see the report there and

over to 468 does not contain the critical words
which appear in the English Reports, quoted of

Chief Baron Pollock, "the more probable solutions''.

In Cox's Criminal Cases, right at the bottom

of 467, His Honour simply talks about "to exclude

the probability of receiving" and over on to 468,

line 3, "to render it probable". So, in that

report, there is nothing going nearly so far as the

English Report, even if the English Report is

regarded as touching the onus of proof.

Interestingly, Your Honours, as well, we have

not been able to find a nominate report but the

report of Langmead, 10 LT 350, is much closer, at

3512 Cox CC, than it is to the English Report and

certainly excludes the probable solution passage in

the English Reports.

DAWSON J: So, really, we should look at - it is reported by

Leigh & Cave?

MR TILMOUTH:  Yes.

DAWSON J: And, what, we should then look at Leigh & Cave in

the nominate reports?

MR TILMOUTH:  Probably that would be the best alternative.

We do not have it, unfortunately.

DAWSON J:	Compare that with Cox's Criminal Cases.
MR TILMOUTH:	Yes, unfortunately, we could not get hold of the nominate report.

DAWSON J: But you say the English Reports are different

from the nominate report?

MR TILMOUTH:  No, we do not know that, Your Honour. What we

do know is that the English Report is different

from the Cox's Criminal Cases report.

Gilson	15	14/3/91
DAWSON J: Very different.

MR TILMOUTH:	Yes, very different from the Law Times Report.
DAWSON J:	Law Times, I see.
MR TILMOUTH:	And, indeed, very different from the Justice

of the Peace Reports, (1864) volume 28 at page 343.

And that report is, so far as we can tell, very

close to Cox, again, but, like Cox and like the Law

Times, omits the probable solution passage in the

English Reports. We apologize that we cannot give

the Court the best solution from the nominate

reports but it is more than of passing significance

to notice that the various reports differ

materially in the way that the case has been

reported.

My learned junior thinks that in some time

past he may have read the nominate reports and it

may well be the same as the English Reports.

DAWSON J: That is likely, is it?

MR TILMOUTH: That is most likely, of course. But,

nevertheless, the fact that there are various

reports illustrates, if anything, a danger. We

submit, in any event, that the later courts in

South Australia have read too much into Langmead's case for the reasons we have already stated.

Your Honours, I deal with the South Australian cases as quickly as I can. The whole basis of this

direction began with Ghys v Crafter,

(1934) SASR 28, Your Honours will notice, just over

a year earlier than Woolmington's case. And in

that case Justice Napier, as he then was, at the

bottom of page 30 - this was a charge of stealing a

typewriter which came on appeal from justices -

His Honour, at the page 30 said, in the paragraph

there, four lines in:

There is no doubt about the law up to a point.

And then His Honour cites Justice Blackburn in

Langmead, a passage I have already substantially

read, and then says, at the bottom of page 30, over

to 31:

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.

Gilson 16 14/3/91

That is Chief Baron Pollock in Langmead, in effect.

I have no doubt that the same principle

applies whenever an accused is lawfully

presented for trial upon two or more charges -

so His Honour casts a principle beyond stealing and

receiving -

whether they are specified in the indictment

or implied by law. See R v Rudge. But in

these proceedings the only charge before the

Court was that of larceny -

and then His Honour goes on to say, "Well, I can't

acquit him of that because there's only one charge,

we don't have the alternative available." That is

to put it fairly summarily. Your Honours will

notice that he sent the matter back for retrial,
page 34, before a jury.

However, the most formidable obstacle for the applicant certainly as he then was in the Court of

Criminal was the case of Dawson - - -

DAWSON J: Just before you go on, you point to the fact that

he extends it beyond receiving and larceny. Is

there any other situation that you can think of

where it is not a situation of a lesser offence as

an alternative to a more serious offence, which of

course is not this situation here where they are

distinct offences, and yet where they are

alternatives.

MR TILMOUTH:  Embezzlement and lasting as a servant. There

is a case of Harper on point, or closely on point,

but generally we accept where the offences are

distinct.

DAWSON J: Generally it is a case of being a lesser offence

which is included in the more serious offence, and

then the problem does not arise.

MR TILMOUTH:  Yes, that would be a different situation

probably, because the greater offence would include

the lesser.

DAWSON J: Yes.

MR TILMOUTH:  But there may be some others, perhaps I could

reserve that, if Your Honour pleases, but generally

they appear to be - - -

DAWSON J: Yes, I would be grateful if you would turn your

mind th that.

Gilson 17 14/3/91

MR TILMOUTH:  - - - fairly limited to this area.

Embezzlement is one that comes readily to mind.

Some statutes, as Your Honours will see shortly, do

authorize joinder and alternative verdicts in other

cases, but generally in the same run of offences.

Robbery and receiving, for example, one code, I

think.

DEANE J:  Mr Tilmouth, do you see the reference to Rudge as

supporting what Justice Napier cites it for.	Rudge
was a recent possession case, was it not?

MR TILMOUTH:  From recollection, Your Honour, I have read so

many recent possession cases lately that they
merge, but from recollection Rudge was no more than

a case where there are two charges and if the Court of Appeal thinks that there was a wrong conviction on one, it may substitute a verdict of

guilty for the alternative offence. I hope that that is right, but I think that that is all that

Rudge speaks of. And Your Honours will know as

well that later, when it came to Seymour's case in

England in 1938, I think it was, the court advised

judges to take a verdict on only the one count and

leave the other in abeyance, so that if there was

some problem on appeal the court was free to

adjust, as it were, the conviction say to the

lesser offence or to the alternative charge and I

think Rudge is such a case, if my recollection is

correct.

BRENNAN J:  Mr Tilmouth, is there any comparable doctrine in

relation to evidence of a general deficiency? It

may be the stealing and embezzlement case, I do not

know.

MR TILMOUTH:  Yes. No, I must confess I have not thought

that one through, may it please Your Honour.	The
problem with Justice Napier in Ghys v Crafter

saying that this would apply where any two charges

are applicable - are tried in the alternative - is

that it takes Langmead even beyond the recent

possession case and appears, on one view, to be

saying that you can choose on the balance where you

have the alternatives. That cannot be right, with

respect. As to a general deficiency - - -

DAWSON J:  What is special about recent possession and

larceny?

MR TILMOUTH:  These days, with respect, now nothing. Once

it was special because it was often used in the

context of presumption, onus, doctrine of and so

on, but these days now, I would submit, in the
series of cases I mentioned earlier, it is simply

regarded as a piece of circumstantial evidence and

it is weighed in accordance with the ordinary

Gilson 18 14/3/91

principles, Chamberlain's case, Shepherd's case,

without more. That, in my submission, is where it

stays and in my further submission the jury should

be directed in conventional terms; what are the

elements of breaking and entering; are you

satisfied beyond reasonable doubt? If not, you

then proceed to receiving and so on. Nothing

special anymore, in our submission.

DEANE J: It is special in that the notion of mutually

exclusive offences is a very unusual one in common

law.

MR TILMOUTH: That is true but, with respect, that resides

in the elements of the offence rather than being an attribute of recent possession although they happen to occur in most cases together, of course.

Your Honours, I was dealing with Reg v Dawson,

(1964) SASR 256. This was the biggest hurdle we

had to overcome in the Court of Criminal Appeal

because it was a decision of the Court of Criminal

Appeal and it was, of course, after Ghys v Crafter.

Your Honours will see, at page 259 - this was

charging of breaking and receiving in the

alternative counts 1 and 2 and a separation a count

of receiving, count 3. At page 259, the court said

this - the second to last line:

The conviction on the third count -

that is receiving, Your Honours

stands somewhat differently. In the first
place there was no evidence to show when or

how the stolen tin of coins had been brought

to the house in McKinnon Parade. We may

speculate on this subject, but, having regard

to the fact that the appellant was never

charged with stealing anything from the Bremen

Hotel, it would be wrong to make any

assumption upon that subject. In these circumstances, it seems to us

that the jury should have had some further direction than was given to them, and that

this was all the more necessary, in so far as
the charge in the third count was not (as the

charge in the second count was) complementary

to a charge of stealing the property.	The
rule or, as it is sometimes called, the

"doctrine of recent possession", is clearly

stated in Cross on Evidence 2nd ed. as

follows:

" ..... If someone is found in possession of

property soon after it has been missed, and he

Gilson 19 14/3/91

fails to give a credible explanation of the

manner in which he came by it, the jury are

justified in inferring that he was either the

thief or else a guilty receiver of the

property, and, where the evidence is equally

consistent with either hypothesis, they should

be directed that it is for them to decide,

which is the right verdict".

Now, that is ambiguous, of course, in the

sense it does not go as far as Langmead, but then

Their Honours go on, as Your Honours will see, to

say this:

But this assumes that the accused is

charged with both offences. It is reasonable

enough, where there are the alternative

charges, that the jury should be at liberty to
accept the solution which they regard as the

more probable, that is to say, if they are

clearly convinced that he, the accused, is

guilty of one offence or the other, and the

only question that remains is, which? But,

where the accused is charged with one only of the two offences, larceny or receiving as the case may be, it seems to us that the charge

must be proved as it is laid. The jury are

not at liberty to return a verdict of guilty

unless the fact is proved beyond any
reasonable doubt, and it is not so proved if
the evidence shows no more than that accused

is guilty either of the offence charged or of

some other offence with which he is not

charged (Ghys v Crafter; R v Seymour).

In the present case, it seems to us that,

if the evidence called by the Crown is accepted, it is, at the least, equally

consistent -

et cetera, and the court went on to acquit because

there was only the one charge. So, if the Court

pleases, this case appears to be an adoption of the

Langmead and Ghys v Crafter approach and Ghys v

Crafter is of course referred to in passing. That was the obstacle course we faced in the Court of

Criminal Appeal and ultimately, of course, on which

the court refused to reconsider its previous
decisions.

Your Honours, can I refer to two other decisions quite quickly because they are referred

to by Justice Cox, and indeed Chief Justice King.

One was Reg v Harper, (1984) 117 LSJS 116, a

decision by Justice Cox. That was a case

concerning embezzlement and larceny, and all I draw

to Your Honours' attention is that at pages 118 to

Gilson 20 14/3/91

119, His Honour referred to Ghys v Crafter, cited

the relevant passage from Justice Napier that I

have read to Your Honours, and said this:

However, within twelve months of that judgment

the House of Lords made its famous

pronouncement in Woolmington. The general

rule is that all of the ingredients of a crime

such as larceny or embezzlement must be proved

beyond reasonable doubt. If there is an

exception with respect to this possession

problem on a prosecution for larceny or

embezzlement, it could only be on the ground

that the mischief that s.181 was designed to

cure makes such a modification of the common

law rule necessary and that this is implicit

in the enactment of the section.

(Compare ..... s.121 of the Crimes Act 1900 of

New South Wales). There is no need to pursue

that question now.

I mention that, Your Honours, because when we come

to the last decision in Buckingham, it is said that

Harper applied Ghys v Crafter. In my submission,

Your Honours, Justice Cox clearly left it for

another day and made, with respect, the telling

point which we make here that Ghys v Crafter was

decided before Woolmington, and when the Court of

Criminal Appeal came to consider Ghys v Crafter and

Langmead in Dawson, it did not deal with the

problem which we submit that Woolmington's case put

in its way.

The final case, Your Honours, is Buckingham,

unreported 12 February 1990, Judgment 2090, and I

refer only to pages 4 and 5 to make this point. Incidentally, it was a decision of the Court of

Criminal Appeal of Chief Justice Cox and

Justice Perry concurring. A submission was made at

page 4, Your Honours, in the middle of the page.

There was an unsafe and unsatisfactory verdict.

Chief Justice King referred to Ghys v Crafter at

the bottom of page 4 and over on to page 5 and then

said this:

This passage was applied by Cox J. in

The Queen v Harper.	The jury were correctly
directed as to the inferences open to them.	I
can well understand that due to the lapse of
time between the theft and the discovery of
the property at the appellant's house, the
jury's preference for the verdict of
receiving. It is a perfectly reasonable
verdict and I see no reason to regard it as unsafe and unsatisfactory.

Gilson 21 14/3/91

Now, with respect, all we are saying here is when

the court refused us the leave to reargue this line
of cases referring to Buckingham saying it was a

recent case which had decided the point adversely

to us, in our respectful submission, whatever is

said in Buckingham is clearly obiter, and with due

respect Justice Cox did not apply it in Harper. He

left it for another day, and that is why I read the

reference in the Law Society Judgment Scheme, if

Your Honours please.

TOOHEY J:  Mr Tilmouth, do we know what the direction was in

Buckingham?

MR TILMOUTH: No, we do not, Your Honours. Unfortunately I

did not copy it, but there was no direction like

that here. There was no "balance of probabilities"

direction in Buckingham, and if needs be we can

have the summing up sent over.

TOOHEY J: That might be borne out by the fact that the

direction itself does not appear to have been

challenged before the Court of Criminal Appeal,

only the verdict of the jury.

MR TILMOUTH:  Yes. I stood always to be corrected,

Your Honours. I think I looked at the summing up

of that case before we argued the Court of Criminal

Appeal. If it did contain that direction we would,

of course, have brought it forward because then it

would have been more on point of course.

Your Honours will see in our written outline

there is reference to the New Zealand case of

Keenan. I do not read it, Your Honours, it is

equivocal to the point in issue here but I do

advert to it for completeness and we mention as well that from a reference in Sir Francis Adams

book, New Zealand Criminal Law and Practice, there

was mention of a case, a single justice's decision

of Justice Macarthur in Devereaux unreported in

1967 which ruled that you could apply the onus on
balance.	We managed late yesterday to obtain

copies of Devereaux, Your Honours, and we hand up

the copy of that.

We mention it because it is against our

argument but Justice Macarthur did no more, with

respect, at pages 5 and 6 than apply Land.mead's

case. He did not refer to Ghys v Crafter. The

relevant pages are 5, 6 and 7. The pages have not been paginated, Your Honours, it is paragraph 6 of

His Honour's judgment. We apologize for the poor

quality of the judgment but it is a copy of the

facsimile from another facsimile from New Zealand

and that is why it appears in that form but we feel

obliged to draw it to the Court's att~ntion but it

Gilson 22 14/3/91

is really no more and no less than an application

of Langmead in the same manner as Justice Napier
applied it in Ghys v Crafter.

Finally, Your Honours, in this connection

before we come to the verdict itself, there was a
suggestion by Justice Cox in the Court of Criminal
Appeal, as there was in Harper's case, that the

statute which permitted joinder may as a last

resort have been a statutory exception to

Woolmington's case.

We come to the statutes in a moment, Your Honours, but in our submission, in effect the

law is that unless the exception is clearly stated,

or to be clearly implied, then the normal onus of

proof is applicable. Our authority for that is He

Kaw Teh and I do not read these passages,

Your Honours, but they are important.

Chief Justice Gibbs at 534 to 535, Your Honour

Justice Brennan very strongly, we submit, in our

favour, at 573, 574 and 575 and Your Honour

Justice Dawson at page 591 to 593.

Since the copy has been given to Your Honours

I would just isolate Your Honour Justice Brennan.

Your Honour said at page 575 after a reference to

Woolmington's case Your Honour concluded at the top

of 575:

In the absence of contrary statute provision

and apart from insanity an accused cannot be

required to prove a mental state as an excuse.

What we say here is applying that principle which

Your Honour Justice ·oawson affirmed at page 591 to

page 593, is that apart from statutory exception

there can be no qualification to Woolmington's case

that the onus can shift as between receiving and

theft on the balance of probabilities.

Your Honours will have noticed in the passage

I read from Harper that His Honour Justice Cox

appeared to be saying that section 181 of the

Criminal Law Consolidation Act, as it was there,

the embezzlement section, was required to give the

statutory authority to the joinder, in other words,

that it would not have been justified at common

law. His Honour, in this case, at page 49 to

page 50 of the appeal book, referred to the origins

of section 196 of the Criminal Law Consolidation

Act and referred to Woolmington's case at the

bottom of page 49 and then referred to Langmead and

said at line 3 on page 50:

Gilson 23 14/3/91

and therefore constituting a statutory

exception to the golden thread that was

recognized in Woolmington's case.

And His Honour went on to talk about pre-

Woolmington legislation. Now, what His Honour

appears, with respect, to be saying there, that in

South Australia anyway, even if I am wrong about

the application of Langmead and distinguishing

Bruce and the Privy Council decision and so on, it would appear, in any event, as if we have a

statutory exception.

Your Honours, section 196 of the Criminal

Law Act South Australia, in our submission, the receiving section, is no more than facultative of joinder; it says nothing about the incidence of the

onus of proof.

DAWSON J: Why is it necessary? Would the counts be able to

be joined anyway?

MR TILMOUTH: Probably not at common law, Your Honour, they

may have been, but -

DAWSON J:	Why not?
MR TILMOUTH:	Because they are mutually exclusive, I think

must be the answer. Rather than being true

alternatives, one is a lesser offence to the other.

DAWSON J: Yes.

MR TILMOUTH:  I think that is the answer. But Your Honours

will see that section 196, although it varies from

some other legislation, especially more recent

legislation, is in fairly common form, and

subsection (2), which is the operative section,

simply provides that:

Charges of stealing any property and of

feloniously receiving that property or part of

that property may be included in separate

counts of the same information and those

counts may be tried together.

There is nothing in there, we submit, implicitly -

and certainly not expressly - which justifies a

reversal of the general onus of proof or can

possibly constitute an exception to the golden

thread of Viscount Sankey in Woolmington's case.

Your Honours will see from our outline that

there are a number of statutes mentioned there.	I
do not read them to Your Honours, but it is
noticeable that there is easily available a
statutory exception if that is required. For

Gilson 14/3/91

example, in New South Wales, Queensland,

Western Australia and the Northern Territory the equivalent provisions talk about where the jury is

unable to make up its mind about which one, they

can return a verdict for the lesser offence. That

would be the sort of direct or express statutory

exception which would be required, in our

submission, to overcome the common law.

Another example is in the ACT application of

the Crimes Act, New South Wales, which provides in section 126 that the right verdict for the jury is

the verdict of theft. So, without going through

all those provisions, Your Honours - they are

mentioned on our list of authorities - it is plain

to see that if there is to be a statutory exception

it can easily be done in express terms unlike there

is in South Australia.

For completeness, Your Honours, the position

appears to be more or less the same or equivalent

to South Australia in Victoria, Tasmania and for

the Commonwealth.	Your Honours there is an error
in our written outline.	The relevant section in

the Commonwealth Crimes Act, section 4 of our outline, is section 4K. I think it has got J there; it is, in fact, K. We have copies of that

legislation, incidentally, if Your Honours require

it.

Your Honours, it therefore follows, in our

respectful submission, without rearguing or going

to the judgment of the Court of Criminal Appeal, that there were a number of errors which are put together in paragraph 5 of our written outline.

Our submission is that it was true that the

applicant faced the hurdle of Dawson's case in the
Court of Criminal Appeal but there was a great deal

to be said for reconsidering that decision since it

on the earlier authorities; since Ghys v Crafter	had not confronted the effect of Woolmington's case
was decided before Woolmington's case and since
there was, in our submission, the very powerful
authority as we were then aware of Bruce and the
Privy Council decision in Yip Kai-foon in support
of the proposition. Our submission is, of course,
that the law is as stated in Bruce for Australian
purposes, common law that is.

Your Honours, as to the verdict itself, it

appears at pages 36 to 37 and Your Honours can see,

working backwards if I may from the easier to the

harder, that there is no doubt that there was,

right at the bottom of page 36, lines 27 and 28:

a unanimous verdict -

Gilson 25 14/3/91

of guilty -

on the second count -

namely receiving.

Now, it is less clear what happened about the

charge of breaking and entering. Your Honours will

see at line 13 - this is after four hours

incidentally, Your Honours, when a majority verdict

of 10 or more jurors is permitted, section 57 of
the Jury's Act South Australia - the judge brought
the jury back under those provisions as he was

entitled to, he was not obliged, and the Clerk of

Arraigns asked:

Members of the jury, are you unanimously

agreed upon your verdict?

Answer -

No.

Are ten or more of you agreed upon your

verdict for a majority verdict?

Answer -

Yes.

Do you find the accused guilty of either

offence?

FOREPERSON:  Yes.

On which offence do you find the accused

guilty?

Of the second offence of receiving.

And then, as I said, that was the unanimous
verdict.	What may be therefore said with some

confidence, we submit, is that when the jury were

not unanimously agreed upon their verdict it must

have related to the first count.

Now, Your Honours, with respect to that there

are, of course, many permutations and computations

about what might have happened or what might not

have happened. It might have been majority for

conviction, majority for acquittal. It may even

have been an undecided jury. But, in our

submission, one thing is abundantly clear through

all of this, and that is simply but fundamentally

that the jury applied itself on the direction at

page 7 to the key issues on the balance of

probabilities.

Gilson 26 14/3/91

Our submission is, with respect, it is a

fruitless task now to try and say, "Well, the

verdict can be saved anyway", because it overlooks

the fundamental point that there was a misdirection
on the onus of proof going to the material

elements, not just to an intermediate stage -

Shepherd's case or Chamberlain's case - to the

ultimate ingredient of the offences here. And in

our submission, therefore, it does not pay to try

and analyse and reason through the verdict, with

respect, to say that nevertheless it is appropriate
to apply the proviso or that the verdict was

justified under the majority verdicts provision.

In our submission, it overlooks the fundamental

fact that there was, if we are correct in our

submissions, a misdirection on the fundamental

matter of onus of proof.

MASON CJ:  Mr Tilmouth, we will adjourn now and resume at

2.15 pm.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MASON CJ: Yes, Mr Tilmouth.

MR TILMOUTH:  May it please Your Honours, I was dealing with

the proviso and the last point I was to make on

that was simply to remind Your Honours that in the

context of the application of the proviso where it
is held that there is a misdirection as to the onus

or proof the Court should be reluctant to

interfere - to apply the proviso, and Your Honours

will note in paragraph 7 that we have referred to

Van Leeuwen, a decision of this Court in that

connection.

Your Honours, they were my principal

submissions. I have only three matters to tidy up.

Your Honour Justice Dawson asked us about

alternative charges, similar to larceny and

receiving. There is, of course, larceny and

embezzlement: section 181, Criminal Law

Consolidation Act South Australia; Harpers' case.

Larceny and false pretences: section 195(3),

Criminal Law Consolidation Act South Australia.	I
should add, and this is further answer to
Your Honour Justice Brennan, in the context of
larceny and embezzlement, a general deficiency can

Gilson 27 14/3/91

be used; section 179 of the Criminal Law

Consolidation Act.

BRENNAN J:  What are the different elements in larceny and embezzlement?

MR TILMOUTH: There are different elements. The question, I

suppose, would be, generally in larceny, whether he

simply took property which he had no authority to

have in the first place or whether in embezzlement

he had authority to have the money and therefore

could not have taken it in the relevant sense.	I
only mention the general deficiency provision because Your Honour raised it.

If Your Honour was asking a further question,

whether there was any difference from the
inferences which can be drawn from a general

deficiency in parallel, say, with the inferences

that can be drawn from the unexplained recent

possession of goods, as I said to Your Honour, we

have not thought that one through, unfortunately.

But I would submit not a general deficiency is

merely enabled so that a charge is not defeated for

technical reasons; you cannot prove actual dollar

amounts. But otherwise the onus of proof, the

inferences which juries can draw from otherwise

satisfactorily proved facts and so on would be

exactly the same as in other cases.

Finally, Your Honours, in answer to

Your Honour Justice Deane, I was asked about

Rudge's case. I was wrong about the facts. I

think I had in mind Seymour's case.	Rudge was in
fact a larceny and embezzlement case.	The section

is probably fairly close to, if not identical, to

section 181 of our Criminal Law Consolidation Act.

DEANE J: Except it was almost a recent possession case,

because it appeared that the accused had the money.

MR TILMOUTH:	Yes, but nevertheless, we would submit, the point remains good that if Justice Napier in
Ghys v Crafter cited it as an authority for the proposition that you can direct on the balance, we
would submit that Rudge's case would not be an
authority for that proposition.
DEANE J:	No, I was just interested if it really supported

taking this doctrine out of the recent possession

area

MR TILMOUTH:	Yes.
DEANE J:	- - - and looking it at again it seems to me that

it is questionable whether it does.

Gilson 28 14/3/91

MR TILMOUTH:  One might say it is unclear, but it certainly

does not positively support, with respect, what

Justice Napier might have been saying about it, but

I am sorry, I confused the facts; it was a

completely different case I had in mind. If the

Court pleases.

MASON CJ:	Thank you, Mr Tilmouth.	Yes, Ms Branson.
MS BRANSON:	May it please the Court.	I hand up an outline.
MASON CJ:	Thank you.	Yes.
MS BRANSON:	May it please the Court.	The submission for

the respondent is that the decision of the

Court of Criminal Appeal in this matter was correct

and that it was correct for the reasons identified

by Justice Cox in the leading judgment of the Court

of Criminal Appeal. It is submitted that the

authorities do not support the proposition that

where an accused is properly charged in the

alternative with two mutually exclusive offences

and the jury is satisfied beyond reasonable doubt

that the accused is guilty of one or other of the

offences but is unable to be satisfied beyond

reasonable doubt of which one, that the accused

must be acquitted of both offences.

If that submission is wrong, this Court is

invited to hold that the law in Australia is

otherwise. It is admitted that the direction complained of in this case was in accord with

established South Australian practice and I refer

to the cases that were referred to also by my

learned friend, Mr Tilmouth. First, Ghys v

Crafter, (1934) SASR 28; Reg v Dawson - - -

McHUGH J: Well, you would not accept everything in Ghys'

case, would you? Particularly that statement where

Mr Justice Napier said that - the proposition which

he expounded would apply:

when an accused person is lawfully presented

for trial upon two or more charges whether

they are specified in the indictment or

implied by law.

What about murder and manslaughter? Could you be

convicted of murder on the balance of

probabilities?

MS BRANSON:  No, I would not seek to suggest that, if

Your Honour pleases, and I think there is a clear

difference between charges that are implied by law

where the lesser are in fact involved in the

larger, and cases that are mutually exclusive. My

submission is limited to those where the offences

Gilson 29 14/3/91

are mutually exclusive, as they were, of course, in

this case.

McHUGH J:  But if your submission is right, it may well be

the case that there is now a person in prison who

has been convicted of a crime on the balance of

probabilities.

MS BRANSON: That is so, Your Honour, and I accept that. I

person of whom the jury was satisfied beyond reasonable doubt that they were guilty of an offence. But I accept that of the particular offence, they may be there on the balance of

accept that my submission leads to that. But, if

probabilities. In my submission, that is the law.

McHUGH J: For example, the jury might be satisfied on the

balance of probabilities that you were guilty of

burglary rather than receiving although they were

not convinced beyond reasonable doubt of burglary.

Now, why should a person be convicted on the

probabilities of burglary, which are true

alternatives with receiving?

MS BRANSON: Well, if Your Honour pleases, it may well be

that there is an unfairness in that. In my

submission, it is an unfairness which Parliament

envisaged but as a matter of practicality, my

submission is that the reality will be that they

will be convicted of the lesser offence.

BRENNAN J:  But they could not. You could not be convicted

of burglary, could you, with only recent possession

without some evidence of that which constitutes

burglary as distinct from larceny?

MS BRANSON:  I think that might well be so, if Your Honour

pleases. The only occasion I can think of where it

might be otherwise is if the recent possession is

found so immediately after the burglary that the

inference is enormously strong that the person

found must have committed the burglary.

McHUGH J: If the person is found in the possession of goods

which are obviously the product of a burglary, it

is open to the jury to find either.

MS BRANSON: That is so, Your Honour, and all I am wishing

to submit is if they are found with them in a time

frame very shortly after such that the possibility

that they did not commit the burglary can be

excluded beyond reasonable doubt then, no doubt,

they will be convicted of burglary and, strictly,

on recent possession, there being no direct

evidence of their involvement in the burglary other

than that being drawn from their possession. In

Gilson 30 14/3/91

every other case, in my submission, the jury, as

practice tends to show, will convict them of

receiving.

So I think it is perhaps not a practical

problem, although theoretically I have to face up

to the fact that it is logically where my

submission leads.

DEANE J: But if your general submission be accepted, why is

not the direction of Chief Judge Waldron in Bruce

preferable, that is, that they cannot convict if

they are convinced beyond reasonable doubt that he
is guilty of one or other? They can convict, but
they can only convict of the more serious offence

if they are convinced beyond reasonable doubt that

he is guilty of that.

MS BRANSON:  Yes, if Your Honour pleases, I propose to

submit to the Court that indeed the probability

test is one that the authorities recognize. There

is some, although not so much, authority in favour

of the lesser offence and that may be the

preferable. Cases like the one at bar, of course,

the offence has attracted the same penalty, and in

some cases that will be the case. In some cases,

of course, the receiving will be the more serious.

DEANE J: If what Mr Tilmouth said is correct, and I am not suggesting it is not, of course, in a case such as the present if sentencing practices differ the

judge should sentence on the basis of the lesser

offence if it has reached the stage.

MS BRANSON:  Yes, Your Honour, I am happy to accept that.

And as I say, there will be cases when receiving will be the more serious. A simple larceny, for example, in South Australia attracts a lesser

penalty.

McHUGH J:  What about rape and indecent assault? On your

theory, can you be convicted of rape on the balance

of probabilities - - -

MS BRANSON:	No, Your Honour.
McHUGH J:	- - - if the jury are convinced beyond reasonable

doubt it is either rape or indecent assault but

cannot be convinced beyond reasonable doubt of

either one?

MS BRANSON:  No, Your Honour, I limited my submission to

mutually exclusive offences and I sought by that

not to cover the offences of the kind Your Honour

has in mind where the lesser is part of the

greater.	My submission does not reach to those at
all.

Gilson 31 14/3/91

BRENNAN J:  Is not the reason why they are mutually

exclusive because of the elements of the respective offences? In one offence there is the asportation,

in the other the receipt. And as to all the other

elements there has to be proof beyond reasonable

doubt - - -

MS BRANSON: That is so, Your Honour.

BRENNAN J:  - - - and this goes only to those two elements.

Is that not what makes them inconsistent?

MS BRANSON: Yes, Your Honour. In the ordinary

larceny/receiving dichotomy the difference is

whether you can be satisfied that the person who

received was not himself the thief, because you

cannot receive from yourself. That seems to be the

only element that is mutually exclusive. That is

what makes them mutually exclusive offences.

Either you stole or you received from the person

who did. You cannot receive from yourself.

That, of course, is something of a difference

between the common law position and the theft act

position which prevails now in England and prevails

in Victoria, where the theft itself is drawn so

widely that an act of receiving can come within the

act of theft. At common law they are clearly

mutually exclusive.

So it is my submission that the direction here given was in accord with established South

Australian practice, and it is my submission that

there is in reality no genuine distinction between

saying to a jury, "You will convict of the one that

you find the most probable and you must convict,

and it is up to you as to which you convict."

There is implied in that that your test will be

less than proof beyond reasonable doubt, and I think in point of principle there is no marked

distinction between those two directions.

As my learned friend said, the South

Australian practice is based upon an understanding

of the reasoning of the members of the Court of

Crown Cases Reserved in Langmead's case and it is

submitted that that understanding of that case is

correct and I would draw the Court's attention not

only to the passages read by Mr Tilmouth but also

looking at the All England Reports at the passage

at page 1463, the passage just above the middle of

the page where, in the course of the argument,

Justice Mellor says:

If recent possession is evidence either of

stealing or receiving according to

circumstances, it would be for the jury to say

Gilson 32 14/3/91

whether the case before them was one of

stealing or receiving, regard being had to the

circumstances of that case.

In my submission, that also is a statement which

says, "The jury must decide one or the other" and

it is not open to them to decide that neither of

the offences is shown on the evidence. The other

passages upon which I rely, those of passages that have been read by Mr Tilmouth and I

will not read them again.

That understanding, that is the understanding

that the Court of Criminal Appeal indicated as an

appropriate understanding of Langmead, has been

criticized and is criticized in the advice of the

Privy Council in the Attorney-General of Hong Kong

v Yip Kai-foon, (1988) AC 642. The considerations

of Langmead in this case starts at page 653 at

point F and continues to page 656 and just above
point Con page 656 it is stated that the rule for

which Langmead is understood in many jurisdictions,

including South Australia, is not a rule for which

Langmead is authority and they go on to say that no

English case has been cited as such a proposition.

It is submitted, that Langmead was properly

understood in South Australia and that it has been

understood, in that sense, widely at least until

relatively recently and without reading the

authorities I draw the Court's attention to the

United Kingdom's decision of Seymour, (1954)

38 Crim App R 68 and, especially, at pages 72 to

73. There is in that case no direct reference to
Langmead but it is my submission it is clear the

Langmead principle is there being considered, and

Seymour itself was accepted in Reg v Cash, (1985)

1 QB 801 at pages 804 to 805.

Looking first at Seymour and just at the

headnote of that case:

In cases where the evidence is as

consistent with larceny as with receiving, the
indictment should contain counts for both

offences. The jury should be directed that it is for them to decide whether the prisoner was the thief or whether he received the property

from the thief and should be reminded that a

man cannot receive property from himself. If
the jury convict on one of these alternative

counts, they should be discharged from giving

a verdict on the other.

Gilson 33 14/3/91

In my submission, that direction is in accord with

Langmead, and Reg v Cash is to the same effect.

McHUGH J: Well, how do they decide on the balance of

probability if the evidence is as consistent with

larceny as it is with receiving?

MS BRANSON: If it were absolutely consistent, Your Honour,

of course they would be in limbo in the middle, but

I imagine that the case in which they could not, by one degree shift one side or the other, would be

rare. It is a risk no doubt the courts have not

felt the need to face up to.

BRENNAN J:  I thought the inference was that it was

stealing, but as Sir Samual Griffith said, "If that

proved to be impossible, then it was receiving."

Is that not so?

MS BRANSON: It may be so, Your Honour, but I am sorry I am

not aware of the authority.

If the Court pleases, in Victoria, earlier in the case of Bruce, the approach exemplified by the

Court of Criminal Appeal in South Australia here was also adopted as can be seen from Koene's case,

Reg v Koene, (1982) VR 916, particularly at page

920 at about line 20 on the page, the beginning of

a new paragraph:

It may, nevertheless, be said that on the

jury's verdicts it would remain possible that

when the jury came to deal with the receiving

charges it might still have entertained a

doubt whether or not the goods had been

received in the course of the stealing. If

section 88 is to be given a sensible

interpretation, this situation must in the

circumstances of this case simply be accepted.

Where the counts of theft and receiving are

standard practice, and the accused pleads not	laid in the alternative, as is and has been
guilty to both counts, it cannot be the
intention of the section to produce the result that the Crown must attempt to prove theft
beyond reasonable doubt on the first count and
to disprove it beyond reasonable doubt on the
second.

That the position supported by the

Court of Criminal Appeal was also the case in

Hong Kong, at least until recently, is apparent

from a reading of Yip Kai-foon and, in particular,
from the case cited therein Chan Tat v Reg, the

citation of which is given as (1973). HKLR 114.

That was the case which was said to support the

direction that was challenged in Yip Kai-foon.

Gilson 34 14/3/91

Interestingly, if the Court pleases, my friend

referred to the case of Keenan in New Zealand,

(1967) NZLR 608. In that case the Crown was

positively criticized for only laying the one count

and not charging in the alternative, thus removing

from the accused the opportunity of being convicted

on the balance of probabilities of a lesser

offence. So, in my submission, Langmead has been

widely accepted for the propositions for which the

Court of Criminal Appeal has suggested that it

stands.

TOOHEY J:	Ms Branson, to what extent is the notion of recent possession crucial to this proposition for
which you are contending?
MS BRANSON:	I think it is at the heart of it, if

Your Honour pleases.

TOOHEY J:  You would not seek to enunciate it in any wider

terms?

MR BRANSON:  I do not think I need to, if Your Honour

pleases, and I do not wish to.

TOOHEY J:  So there are really two qualifying elements: one

is that the offences must be mutually exclusive and the other is that on the facts of a particular case the doctrine of recent possession must have some

relevance, is that right?

MS BRANSON:	Yes, Your Honour.
GAUDRON J:	Is it limited merely to being of relevance or

must the recent possession be such as to exclude

any hypothesis of innocent possession?

MS BRANSON: Certainly, Your Honour. I assume that in

saying the Crown relies on recent possession; that

is, recent possession with no explanation

consistent with innocence.

DAWSON J:  Why should not the same principle apply, say with

larceny and embezzlement?

MS BRANSON:  If Your Honour pleases, it well may. I do not

think, for the purposes of this case, that it is
necessary for me to establish that but I have
difficulty contemplating a case where you will not

relying on evidence of either of recent possession

or evidence of that kind.	What is crucial about
that evidence is -

DAWSON J: Well larceny and embezzlement, for example.

MS BRANSON:  Yes, Your Honour, and often in those cases the

evidence will be of a recent possession kind,

Gilson 35 14/3/91

either recent possession or something close to it.

The importance of that is that it is the defendant

who has the missing information and, in my

submission, Parliament might well have -

McHUGH J: That assumes he is guilty, that he has the

missing information.

MS BRANSON: If Your Honour pleases, these cases are all

based on the assumption that the jury is satisfied

beyond reasonable doubt of guilt and the only issue

left is of what?

DAWSON J:  You see, that is exactly the same with larceny

and embezzlement. Really, it is a question of

whether you find a person guilty in a sense on the

balance of probabilities of an offence or, on the other hand, notwithstanding the jury is satisfied

beyond reasonable doubt that he has committed one

or the other he goes scot-free.	And either
alternative has its attractions.

MS BRANSON:  Yes, Your Honour. I am sorry, it may be that I

misunderstood what Your Honour was putting to me.

DAWSON J:  Why is it not the same wherever you can find two

mutually exclusive offences which were alternatives

on that set of facts?

MS BRANSON:  It may well be so, Your Honour. I am just not

wishing anxiously to commit myself too readily to

something that I have not thought through

sufficiently deeply. It seems to me the case will,

in nearly every circumstance, involve the Crown

relying on evidence sufficient to convince a jury

of guilt of one of the two.	The missing element
will be in the knowledge of the defendant.	If that

circumstance arises either in larceny embezzlement

or larceny receiving, in my submission, the

principles will apply.

BRENNAN J: It might be difficult to find a case of recent

possession in embezzlement.

MS BRANSON: Well, I think Rudge's case was rather like

that, if Your Honour pleases. The Crown evidence

in that case against the accused was that he had

this money. It was known that it was money that

other persons directed to a society of which, as it

happened, he was a member. But what was not clear

was at what point of time he had appropriated it; whether he had in fact stolen it from the society

or appropriated it before it came into the

possession of the society. Again, it is rather

like many of the larceny receiving cases, he would

know that. Those looking at the objective evidence

would have great difficulty in establishing that.

Gilson 36 14/3/91

BRENNAN J:  Ms Branson, the passage which I had in mind when

I asked you my previous question was Trainer v R,

(1906) 4 CLR 126, at 132 to 133.

MS BRANSON:  Thank you, Your Honour, and I am sorry I am not

able to -

If the Court pleases, it is no doubt as my

learned friend says, that it was the apparent

departure involved in the principle for which I

contend; its apparent departure from a strict

application of the principle in Woolmington that

appears to have caused this principle to come into

some measure of more recent disrespect. My

submission is that either Woolmington does not

reach to mutually exclusive alternate counts where

the jury is satisfied beyond reasonable doubt that the accused is guilty of one or the other, or that section 196 of the Criminal Law Consolidation Act

of South Australia should be understood as

providing for a statutory exception.

The relevant part of section 196 is its

subsection (2) and that section can be traced in

form to the United Kingdom statute, 11 & 12

Victoriae, chapter XLVI.	The Court will see that
this statute was headed:

An ACT for the Removal of Defects in the

Administration of Criminal Justice.

Its opening recital reads as follows, whereas:

the technical strictness of criminal
proceedings might in some instances be further

relaxed, so as to ensure the punishment of the

guilty, without depriving the accused of any

just means of defence:

and goes on in section III to put the additional

recital and whereas: 

according to the present practice of courts of

criminal jurisdiction, it is not permitted in

an indictment for stealing property to add a

count for receiving the same property, knowing

it to have been stolen, or in an indictment

for receiving stolen property knowing it to

have been stolen to add a count for stealing

the same property and justice is hereby often

defeated;

be it therefore enacted in the terms essentially

the same as those now appearing in section 196(2)
of the South Australian Criminal Law Consolidation

Act.

Gilson 37 14/3/91

I rely on those passages, if the Court

pleases, to support the proposition that there is a
disclosed Parliamentary intention that this

subsection should be used in a way that does

enhance administration of justice; does do away

with formal defects and does ensure the punishment

of the guilty without depriving an accused of a

just means of defence. It is, of course, my

submission that it is not a just means of defence

to, in effect, assert, "Yes, I know it has been

proved that I am guilty of something.	You can't
tell which it is.	I am entitled to go free" .

DAWSON J:	What do you say about Woolmington's case?
MS BRANSON:	What I say about Woolmington's case, if

Your Honour pleases, is either that it does not

apply in those circumstances, such circumstances

not having been expressly considered in

Woolmington, but by re-enacting effectively that

statute in section 196(2) Parliament has chosen to

depart from Woolmington in these limited

circumstances. I put it in the alternative, one or

other of those two, if the Court pleases.

GAUDRON J:  Can you however, Ms Branson, take anything more

from it than was taken by Mr Justice Lush in Koene,

that is at page 920:

it cannot be the intention of the section to

produce the result that the Crown must attempt

to prove theft ..... and to disprove it beyond

reasonable doubt.

MS BRANSON:  If Your Honour pleases, it may in the event

come down to nothing more but I say it actually

discloses an intention that a person can positively

be convicted of an offence even though the Crown

cannot prove which of two mutually exclusive they

are guilty of.

GAUDRON J: That may be so but it does not necessarily go to

the direction in this case. It may go as far as

what has been said in Koene's case.

MS BRANSON:  If Your Honour pleases, in my submission, if it

is true that the intention of Parliament is that

once the jury is satisfied beyond reasonable doubt

of a guilt of an offence that the person must be
convicted of one of the two alternative offences,
then one must find a mechanism of selecting which
one of the two it is, the alternatives are
relatively limited if it must be one of them and I
think, intelligently, they come down either to the
balance of probabilities test or the lesser offence
test and I think, probably, there are not any other

sensible alternatives.

Gilson 38 14/3/91

So it is my submission that in enacting section 196(2) Parliament will not be assumed to

have put the Crown in the difficult position which

is considered in Koene; that they will not be

assumed to have created a situation where the Crown

might in fact be advantaged by not joining the

counts but charging one, waiting to see what the

defendant says and if you get the answer

inconsistent with a conviction in that count then

lay the second count and prove their answers in the
earlier trial against them. In my submission, it
cannot be intended that that is what Parliament

thought would be an appropriate way to handle it.

They expressly create a situation when they could

be charged in the alternative and, in my

submission, it must be assumed on the basis that

that would be the more efficient and the more

appropriate way to handle and in view of the

recitals in the UK statute one more consistent with

obtaining convictions of persons known to be

guilty.

It is further my submission that if the strict

argument put against me were to succeed, the very
concept of recent possession would, essentially, be

destroyed. There would then be very little utility

left in the recent possession concept and its

usefulness would effectively be defeated. In my

submission, that was not the intention of

Parliament in enacting section 196(2), a section

clearly enacted with recent possession in mind.

McHUGH J:  But why adopt that approach? Why is not the

prima facie inference that you draw from recent possession, and it has to be recent possession,

that the person is the thief? But if the jury is

satisfied beyond reasonable doubt that he was not

the thief, then they convict him of receiving.

MS BRANSON:  I am just having difficulty seeing quite where

what Your Honour is putting to me to believe.

McHUGH J: Well, at least then you conclude beyond

reasonable doubt that he is guilty of receiving.

But you start with the general presumption, in

effect, that it is evidence of stealing, not

receiving.

MS BRANSON:  With respect, Your Honour, I do not understand

that to be the present approach of the courts to

recent possession. My understanding is that where

the recent possession is found in near proximity to

a proven theft, then the presumption is of larceny;

but that recent possession alone and not in

proximity to theft, but still sufficiently close to

it to be recent, leads no more strongly to an

inference of theft than it does an inference of

Gilson 39 14/3/91

receiving, and in many cases the inference·of

receiving will be the stronger in the absence of

any evidence implicating the person in possession

of the goods with the theft.

McHUGH J: Well, that is not the way the matter was

approached in this Court in the passage to which

Mr Justice Brennan referred in Trainer's case.

MS BRANSON:  The case in Bruce, if Your Honour pleases.

McHUGH J: In Trainer's case.

MS BRANSON: In Trainer, I am sorry. If Your Honour

pleases, my submission would be that there has been a degree of shift in the courts' approach to recent possession over the years, something that we see in

the cases where it has, in fact, been argued that

it is no basis of an inference of possession at

all, but only of theft; and that has been

rejected. As I understand the current position, it

is that it is equally amenable to a proof of theft

or possession, and the time element will be a

crucial one in determining which.

DEANE J: But you are concerned with what will almost

invariably be the case, and that is, the jury will

say, ttThere is recent possession. He is obviously

guilty of having stolen it or received it, but we

could not say beyond reasonable doubt which one it

was,tt

MS BRANSON: That is so, Your Honour. That is the case

which I am concerned with. Could I just say,

Justice McHugh, I do not see that in Bruce that

this Court did tie itself to recent possession

being more strongly evidence of larceny than

receiving, but of course, it is a very short

report.

If the Court pleases, I turn then to the case of Yip Kai-foon, the Privy Council decision on

which so much weight is placed by my learned

friend. My principal submission with respect to

this case is that it is not an authority for the

proposition that where an accused is charged in the

alternative with robbery and receiving or handling,

the jury must be directed that they must be

satisfied beyond reasonable doubt that the accused

did not receive the goods in the course of the

robbery before they could convict of the
alternative charge of handling stolen goods.

That proposition was expressly rejected, as can be seen at pages 657 to 658 of the report, and

if I draw the Court's attention to the passage that

commenced with the consideration of the case of

Gilson 40 14/3/91

Cash on page 657F as an analysis of that case and the judgment of Lord Chief Justice Lane and then at page 658 just above point D, the statement:

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

existing 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.

Which was, of course the words "not in the course of stealing."

It called for no specific direction.

So the court clearly envisaged there circumstances in which there would be no need at all to make the

positive direction, which is suggested in this

case, is vital in every case.

I draw the Court's attention also to the

apparent approval of the Privy Council in this case

of the case of Cash, and Cash, of course, is a case

that is inconsistent with the proposition for which

my learned friend contends. And the passage in

Cash which is particularly vital is that which is set out in the Yip Kai-foon case at page 658, at

point B to C.

It is my submission that this is a

particularly difficult case to come to grips with

as point of principle but, in my submission, there

are certain things that it can be seen that it is

not authority for and, in my submission, it is

clearly not an authority that a jury must, in every

case, be directed that they cannot convict of

receiving unless they are satisfied beyond

reasonable doubt that the person charged was not

himself the thief.

The Victorian case of Bruce, (1988) VR 579, in

my submission, is also not an easy decision and I

refer particularly to the final pages of the report

of this case, pages 601 and 602. We have again, at

page 601 at line 10, an apparent approval of Cash's
case, which is a case inconsistent with the

propositions contended for by my learned friend.

We have a reference of a case of Koene, which is

also inconsistent with the propositions put forward

by my learned friend, and reference to it, without

apparent criticism, as can be seen at the bottom of

page 601. And it may be, although I put this

Gilson 41 14/3/91

forward on the basis that I have difficulty with

this case and therefore feel able to put almost

nothing about it forward with certainty, that

Bruce's case is an authority that the direction to convict of a lesser offence is an improper

direction. That was the direction under

consideration in Bruce and that is the direction

disapproved of.

McHUGH J: Well, what happens in a case like this which if a

jury ever got into any trouble about making up its

mind, I think it would be more likely to be the

case than any other case, somebody is found in

possession of property stolen, say, 10 days ago.

The jury says, "Well, we're convinced beyond reasonable doubt that he either stole it or he was

the receiver but we can't say that one is more

probable that another."	Now, where do you go from
there? Langmead does not help you.	Do you acquit
then?

MS BRANSON: If Your Honour pleases, clearly my learned

friend, Mr Tilmouth contends that you acquit.	My
contention is, principally, you do not acquit.
That is a case either at common law or as

particularly pursuant to section 196(2) of our Act

you are directed not to acquit.	The issue
therefore becomes of what do you convict.	The

weight of the authorities, in my submission, are in

favour of the jury determining which of the two

offences was the more probable.

McHUGH J:  The hypothesis is that they cannot determine that

either.

MS BRANSON:  In the circumstance where they absolutely

cannot do that, I think I can do no more than fall back on saying that they must then contend for the

lesser of the two and, of course, that was a

direction that was given in Bruce and criticized

and overruled, in fact, in Bruce in the Full Court
of Victoria. That is the alternative.	I suppose

another possibility is for a direction to be given

as to which one they should consider first. If

they are not satisfied beyond reasonable doubt on

that one the presumption of innocence is invoked on

that one and they then move to the second. How you

establish an order for offences of the same degree

of severity, of course, is quite a challenge and

particularly where the jurisdictions seem unable to

agree as to whether larceny or receiving is a more

serious offence. But that is another possibility.

DEANE J: But if they are the same sentences, would not you,

for historical, if for no other reasons, always say

that larceny was a more serious offence than

receiving? You only get receiving a more serious

Gilson 42 14/3/91

offence if you are presuming there are a lot of

other offences.

MS BRANSON:  I think that is right, if Your Honour pleases.

Certainly, in Australia, I think there is little debate that larceny would be considered first and that larceny is more serious. There are English

authorities that suggest to the contrary. But I

think, in the Australian context, that would be so.

DEANE J: There was a time, was there not, where it would be

the difference between hanging and not hanging?

MS BRANSON: It may be, Your Honour, yes. But, certainly,

the Privy Council in the Yip Kai-foon case was, at least, not unattracted by that proposition and, of course, they went through that exercise in
considering and justifying the use of the proviso.

So that may be the answer to the question, if

Your Honour pleases.

GAUDRON J: But is there not this difficulty in the

direction, Ms Branson, that it really does proceed

on the basis that the jury must make a choice even

if it does not feel it is able to?

MS BRANSON:  Yes, Your Honour, and that is my contention,

that Parliament has directed that they must.

GAUDRON J:	They must make a choice?
MS BRANSON:	Yes, Your Honour.
GAUDRON J:	Even if they cannot?
MS BRANSON:	Yes, once they are satisfied beyond reasonable

doubt of guilt.

GAUDRON J:  And even if they cannot decide on the balance of

probabilities they must make a choice, if

necessary, by tossing a coin in the jury room?

MS BRANSON: Well, I have not suggested tossing a coin, if

Your Honour pleases, but it may not be an unuseful

method, I suppose, if it was that close. But I

would put to Your Honour first that in practical

terms the possibility of there being nothing which
indicated one against the other is a very remote

possibility because they will always have the issue

of timing and timing will always give an indication
of some sort as to whether the evidence is more

supportive of the case of larceny or the case of

receiving.

McHUGH J:  I do not understand that at all. It is more

likely to depend on the nature of the property I

would have thought rather than the timing. I mean,

Gilson 43 14/3/91

somebody who would steal something might have it in

his possession two years later. He is just as

likely to have it in respect of some forms of

property than that he has passed it on to somebody

else.

MS BRANSON: That is so, Your Honour, but

McHUGH J:  It is more likely to depend on the nature of the property, is it not, than the time?

MS BRANSON: That may be so, Your Honour, and certainly

different elements of time might be thought to be

more telling for different classes of property.

Some property is transportable and readily

disposable and you would need, I would suggest, a
much shorter period of time with respect to
property of that kind to fill any inference if

larceny arose than you might for an item that is

difficult to move and not readily in commerce.

McHUGH J: If 20 shirts are stolen and you find them in the

possession of the accused a fortnight later you

would not have much difficulty concluding that he
stole them, but if you only found one of the shirts

in his possession you would not have much

difficulty in corning to the conclusion that he

received them.

MS BRANSON:  Yes, I am happy to adopt that, Your Honour,

yes, I accept that. So, returning to

Justice Gaudron's question, my submission is that

as a matter of practicality it would be rare if

ever that you will find a case where there is

nothing that would incline you at all one way or

the other.

GAUDRON J: But this direction seems to be postulated on the

hypothesis that that might be this very case.

MS BRANSON: If Your Honour pleases, the direction was

postulated on the possibility that the jury could

make a choice as a question of probability.

GAUDRON J:	Or that they had to whether they could or not.
MS BRANSON:	Yes, and that they had to, and what I suggest

is that the case would be extremely rare where they

could not choose one or the other, if that is not

so

GAUDRON J:	And then they must toss a coin, on your submission?
MS BRANSON:	Or choose the lesser, if Your Honour pleases.

I mean, juries are sensible rational people and

they have in fact handled this sort -of problem for

Gilson 44 14/3/91

centuries with relatively little controversy.	They
clearly have ways and means of making decisions.

GAUDRON J:  They have handled it, perhaps, since the two

counts could be charged in the one indictment.

MS BRANSON:  Yes, Your Honour. I accept theoretically what

Your Honour puts to me is completely right and I

cannot step away from it, all I can say is in the

issue of the practical administration of justice it

will, in my submission, create no real problem.

GAUDRON J: It is reading a lot into subsection (2), is it

not?

MS BRANSON: It is, if Your Honour pleases, and I - - -

GAUDRON J:  And a lot more than Mr Justice Lush read into

the equivalent of the Victorian provisions?

MS BRANSON:  Yes, that is so, Your Honour, it is doing that

and Your Honour knows the factors that I refer to

in that decision and I do not think I can improve

on them by repeating them to Your Honour again, but

I do ask that those things be read in and I do say

they are a lot and I do recognize that some

jurisdictions have chosen to put those words

expressly into their statues but I say that that

was done from an abundance of caution and that the

same notion is to be implied into our

section 196(2) to make the joinder sensible and

workable and achieving of the result which, in my
submission, Parliament must have intended it to

achieve.

GAUDRON J:  I think there are other possibilities, are there

not? Might not a trial judge give sensible effect

and operation to the provision by saying to the

jury, "Now, if you are convinced that there is no

innocent explanation, that is to say, the accused

must be guilty of one or the other, you may use

your view that it is less probable that he did one

than the other to be satisfied beyond reasonable

doubt that he did the other". Now, that is quite a

different proposition, however, from what is

comprehended in this direction.

MS BRANSON: If Your Honour pleases, of course it is

differently expressed and it is no doubt preferably
expressed. I wonder if in fact it does not lead to

the same result?

GAUDRON J:  No, it is a different proposition because it

allows that they may be able to reach no conclusion

and it allows and it requires that at the end of

the day they will have reached a conclusion beyond

Gilson 45 14/3/91

reasonable doubt but by a particular process which

is not necessarily logically flawed.

MS BRANSON:  Yes, Your Honour. If Your Honour pleases, my

principle submission, as has already been put, is

that there is an obligations to convict once
satisfaction beyond reasonable doubt of guilt of

the offence, one or other of the offences, is

established. Against that I think Your Honour's

direction would be admirable and extremely useful and no doubt preferable but standing alone, in my

submission, without the obligation to convict it

would still be defective.

DEANE J: But would that direction be preferable? What if

the jury came back and said, "We have reached a

firm view that there is a 60 per cent chance that

he stole it, and there is a 40 per cent chance that he received it, which means there is no way that we can be satisfied beyond reasonable doubt that he

stole it or that he received it."

Justice Gaudron's direction would either require a

fudging by the trial judge or the answer, "While

you know he is guilty of one or the other, you must

acquit him of both."

MS BRANSON: That is so, Your Honour, and of course, there

is a long history of fudging in this area and, of

course -

DEANE J:  Most of the judgments we have been looking at seem

to fudge it.

MS BRANSON:  Yes, they do, if Your Honour pleases. And in a

sense what is significant about this case is that

there was a learned trial judge who was not

prepared to fudge. The fudge directions have

clearly attracted no criticism, and many of the

reported cases are entirely that fudge. If the

fudge is to be avoided then, of course, the

situation that Your Honour contemplates could

arise.

It is my submission, of course, that the

60 per cent chance should be the one that wins the

day. The other possible approach is to start from

the larceny first and say, "Assuming that was

60 per cent, that is not enough, but the reasonable

doubt is still there. Set it aside, presume him to

be innocent of larceny, consider again." And the

person would have to be convicted of receiving.

DAWSON J:  I must admit there is some puzzlement in all this

for me. What part does recent possession play,

because not every case of receiving is dependent

upon recent possession, or to put it another way,

Gilson 46 14/3/91

in not every case of receiving is there evidence of

recent possession?

MS BRANSON: Sorry, Your Honour?

DAWSON J: Well, if evidence of recent possession is absent,

do you say what you say applies?

MS BRANSON: That there must be a conviction? Is that what

Your Honour means?

DAWSON J: That you decide which one, larceny or receiving,

on the balance of probabilities.

MS BRANSON:  I think I am compelled to say that that is my

submission, Your Honour.

DAWSON J:	On what basis do you say it?
MS BRANSON:	On the basis that in enacting section 196(2)

that the offences could be charged in the

alternative, that Parliament must have intended

that if the jury could be satisfied beyond

reasonable doubt of your guilt that you could be

convicted.

DAWSON J: Well then, recent possession has really nothing

to do with it in the end?

MS BRANSON:  It seems that recent possession is an element

of the evidence that comes up in nearly every case.

DAWSON J: Well now, if recent possession does have

something to do with it, must it not be on this

basis: that recent possession can point either to

larceny or to receiving. It will point more

strongly to receiving than it does to larceny

because really you must have something else in most

cases other than recent possession to prove

larceny. Recent possession of itself will often

enough be sufficient proof of receiving.

MS BRANSON:  Yes, I accept that, if Your Honour pleases,

with respect to Justice McHugh.

DAWSON J:  So that if that is so, then the logical way to go

about it is to consider larceny first and say,

"Well, is the evidence here sufficient?" If it is

not, then you acquit of larceny and then consider

receiving next. You say, "Well, it may not have

been sufficient, the evidence, particularly recent

possession, to prove larceny, but it may be

sufficient to prove receiving beyond reasonable

doubt. Now, give your verdict on that. But if you

cannot find receiving even upon the stronger

evidence, evidence which has a stronger probative

force, then you acquit of the receiving."

Gilson 47 BRANSON 14/3/91

MS BRANSON:  I am not sure if I fully followed through

Your Honour's logic. I think I agree with what

Your Honour said, but I qualify it that I may have

misunderstood you.

McHUGH J:	But absent recent possession, the problem really arises, does it, because if the possession is not
recent, then you cannot draw any inference from the
fact that somebody is in possession. So if you
have the alternative it has to depend on other
evidence - - -

MS BRANSON: That is so, Your Honour.

McHUGH J:  - - - and it would rarely be evidence which would

point equivocally to one or the other.

MS BRANSON:  I think that is so, if Your Honour pleases. I

certainly submit that the parliamentary intention

is that a conviction would result if a jury is

satisfied beyond reasonable doubt of guilt of one

or the other. As a result of that I am obliged to

say that that must be so whether the evidence is

evidence of recent possession or the guilt is

proved some other way.

If it is proved by a recent possession, which is the very common case, the issue is likely to be

more striking, because that is the kind of evidence

which is potentially equivocal and where the area

that is unestablished is knowledge exclusively in

the possession of the defendant. If your evidence

establishing guilt were other than recent

possession, it would be unlikely, I think, that you

would end up with the equivocal position. The

evidence is likely not to be equivocal on that

issue of whether you were the thief or not, but of

its very nature the receiving is potentially

equivocal.

BRENNAN J: Well, I do not know. What do you say about

somebody who, in the local pub, says I have got

three video recorders here for sale, and the police

say that they were taken, stolen from places

nearby, say 10 days before. Now he has got three.

Is he in business as a receiver? Is he the local

thief? What do you say? All you say at the moment

MS BRANSON:  On the issue of whether it is equivocal or not,

if Your Honour pleases?

BRENNAN J: Yes. I know you say that he does not go scot-

free, but what do you do about trying to resolve

that?

Gilson 48 14/3/91

MS BRANSON: Well, I would have to concede that that

evidence is equivocal on the issue of whether the

person was the thief or a receiver and - - -

DAWSON J: But it points more strongly to receiving than

larceny, does it not?

DEANE J:	Not if they were stolen from a video shop, no.
MS BRANSON:	I would be inclined to think that one would

extent I feel more comfortable with thinking it indicates more strongly receiving by the fact that

feel more comfortable with it being receiving, if

I regard receiving as less serious. I mean, I

think it is hard to distinguish the two in your

mind.

DAWSON J:	But why I say it is stronger is because, when you have the goods and there is no explanation for your possession and you know that they are stolen goods,
you really inevitably, in the absence of an
explanation, come to the conclusion that he was
receiving and that is the way the law proceeds. On
the other hand, larceny requires more than just possession, in a sense possession is the receiving.
MS BRANSON:	Yes.

DAWSON J: Larceny requires a breaking and an entering and a

taking, in those circumstances, and you really

cannot read that very easily into recent

possession. That is all I am saying.

MS BRANSON:  No, you cannot, .Your Honour, and I accept

precisely what Your Honour is saying. The only

difficulty, I think, which some of the cases have

sought to throw up, is that receiving really

involves the element that you did not receive from

yourself and looked at that way, of course, it is

less strong on establishing that you did not

receive from yourself.

DAWSON J:  Of course I am just saying that receiving is a

passive thing and therefore is much easier to
prove, particularly if you are relying on recent
possession, than larceny which involves

active - - -

MS BRANSON: Active things, certainly, Your Honour, and some

of the cases have expressly stated that so far as
recent possession supports an inference of

receiving, that inference is to be understood as

receiving from somebody else, that that can be

implied into the inference that it is proper to

draw and to that extent, of course, is supportive

of what Your Honour says.

Gilson 49 14/3/91

DAWSON J:  But if that is so, then why do you not proceed

from - and the whole basis of the doctrine is the

common substratum of evidence, namely the doctrine

of recent possession - why do you not proceed from

the more difficult to prove to the easy to prove?

That is all I am asking.

MS BRANSON:  Yes, I think there is probably no reason at all

not to do that, if Your Honour pleases.

DAWSON J:  I mean, you never get to probabilities then, do

you?

MS BRANSON:  Well you may not, if Your Honour pleases, but

you have some cases where of - - -

DAWSON J:  I am not sure what you are putting to us?

MS BRANSON: Well, the reason that I am nervous about that,

if Your Honour pleases, is that there are cases in
which the larceny will attract a lesser penalty
than the receiving, and simple larceny and

receiving in South Australia is such an example.

DAWSON J: Well, we are not talking about penalty, we are

talking about ease of proof or the probative value

of the common substratum of evidence and if it points more strongly to one than the other you

proceed from that which it points less strongly to

to that which it points more strongly to. I do not

know if that is right, but I am just trying to

discover where we go to. You seem, you see, to be

basing it upon recent possession; that is why it

seems, but you do not necessarily say that it is
so, it seems to be confined to larceny and

receiving, and if you try and isolate out what it

is that makes these two offences unique, it must be

something like that.

MS BRANSON:  I am sorry that I am not making myself clear to

Your Honour.

DAWSON J: Well, do you say the principle is confined to the

offences of larceny and receiving when the evidence

relied on, at least in part, is recent possession?

MS BRANSON:  No, Your Honour, I say that this principle

applies in any case in which mutually exclusive
offences - in the sense that we have discussed

mutually exclusive - are authorized by Parliament

to be joined on the one information.

DAWSON J: Well, we need not worry about recent possession,

on your argument.

MS BRANSON: Well, if Your Honour pleases, I say the

principle is the same in all of those cases.

Gilson 50 14/3/91

DAWSON J:  What is the principle?

MS BRANSON: That once the jury is satisfied beyond

reasonable doubt of guilt of one or other of the
offences, they are not to acquit; they are to
reach a decision as to which of the offences to
convict on. That is the principal contention of

the Crown here.

DAWSON J: Yes, but you want to avoid - what you would say -

the absurd result of the man going scot-free when
the jury were convinced beyond reasonable doubt

that he had committed one or other of two offences.

MS BRANSON:  Exactly so, Your Honour. Now, as a matter of

practice, I say that this will arise in cases where

there is evidence of recent possession because that
is the evidence that is potentially equivocal in
nature and it is against that background as a

matter of practicality that the issue would arise.

Have I made that clear, Your Honour?

DAWSON J:	I think so.
MS BRANSON:	So, if the Court pleases, my submissions are

that neither the Yip Kai-foon case nor the Bruce

case is a clear authority in support of the

contentions of my learned friend. Neither of them,

in my submission, directly holds that a jury must

be directed expressly that it must acquit if it

cannot be satisfied beyond reasonable doubt of

every element of the two offences charged jointly

on the information.

I therefore put to the Court that there is no

clear authority supporting the case of the

appellant here. My submission is that, as

Justice Cox suggested - at pages 48 and 49 of the

application book - the sensible administration of

justice does suggest against the appellant's case

that juries are likely to be offended if instructed

that although satisfied beyond reasonable doubt

that the accused is guilty of one or other of two

offences of which he is charged before them they

must, none the less, acquit him in the

circumstances postulated. They are my submissions,

if the Court pleases, on the principal point of the

appeal.

It is, however, my submission that in the

circumstances of this case, even if the Court is

against the Crown on the substantial submission,

this would be an appropriate case for the

application of the proviso and I do so in reliance
on the case of Yip Kai-too, a case in which, of

course, the proviso was called in aid in a case of

this kind and as I understand the reasoning of the

Gilson 51 14/3/91

judicial committee in that case - and it appears at

pages 658 and 659 of the report.

And, as my learned friend pointed out,

reliance was, in that case, placed on the fact that

the jury had apparently reached a decision on the

robbery charge part way through their determination

and before they dealt with the handling or

receiving charge.

In my submission, however, the Judicial

Committee would have come to the same result

whether or not that had happened, by virtue of its

own reasoning - which is apparent on page 659. And

that, in reality, what was there decided was that

having considered the first count - that is, the

count of larceny - and determined not to convict on

that count, the situation arose where the accused

went back to a position where he was presumed

innocent of that count, as a result of which the

receiving charge was an inevitable conviction

flowing from the decision that the robbery count

was not made out.

In my submission, the case at bar is identical

to that.	The jury did not reach a conviction on
the larceny charge, the robbery charge.	The
accused entered the witness box with the

presumption of innocence of that count. There was

no direct evidence that the accused was involved in

the shoplifting and the larceny and, in my
submission, against that che jury was entitled,

having decided not to convict on the shop breaking

and larceny charge to assume innocence of the

breaking, thus leaving them inevitably to the

result that the accused was guilty of the

receiving.

In those circumstances, in my submission, it

would be appropriate for the proviso to be invoked

and the appeal dismissed for that reason.

DEANE J:  The argument you are putting on the proviso, in

many respects would be a more attractive argument

than the one you have put on the primary direction

in the sense that if one is going to convict on the probabilities where it is apparent that somebody is

guilty of one or other of mutually exclusive

offences, it seems less unattractive if the

approach be that you direct the jury first to

consider the more serious offence on the ordinary

onus of proof and then direct them that if they

find he is not guilty of that because of a reasonable doubt, they then treat it as an

established fact that he is innocent of that more

serious offence and put it out of their mind in

considering the less serious offence.

Gilson 14/3/91

MS BRANSON: That may well be so, Your Honour, and I did put

to Justice McHugh in argument that there were three

ways of handling the problem: one was the balance

of probabilities way; one was the lesser offence path; and the third was the same exercise that I

went through on the proviso. The reason I do not

put that - and perhaps it is unduly cautious of me, the reason I have not put it at the forefront of my

argument is that there is very little authority in

support of that approach and the balance of

probability has a long historical support. But I

accept what Your Honour is saying about that. If

the Court pleases, they are the submissions of the

respondent.

MASON CJ: Yes, thank you. Yes, Mr Tilmouth.

MR TILMOUTH:	If the Court pleases, some brief matters. the suggestion of one alternative being a direction	On
about a lesser offence, could I remind the Court

that irrespective of what local sentencing practice

might be or irrespective of whether the statutes

provide for the same or a different maximum penalty

for stealing and receiving, that as Justice Gray

pointed out in Bruce at 602, that it involves a

value judgment in the trial judge and His Honour,

at 602, thought it was wrong to do that because it

was:

a departure from the jury trial procedure,
wherein the Judge decides the law and the jury

the facts.

If I could add to that, the problem with choosing

the lesser offence is that it only be good for so long as there is a discrete lesser offence either

by statute or by practice of sentencing, but times

may well change. Who is to say that some courts

might not, as they apparently did in the past,

regard receiving as more serious for penalty

purposes and, in any event - - -

DAWSON J: That was why, perhaps, I was suggesting that

rather than dividing them up in the more serious

and less serious offence, you say the one that has

greater elements to be proved.

MR TILMOUTH:  Yes.

DAWSON J: That is clearly larceny as opposed to receiving

because you are more likely to have a doubt about

that just simply because there is more to be proved

than you are about the lesser one, at any rate,

when the evidence has a common substratum.

Gilson	53	14/3/91
MR TILMOUTH:	Indeed.	I accept all that Your Honour says

that that is the logical way to approach the matter

but the danger with, or the difficulty with the

other alternative, the lesser alternative, is the

matters I have just put and the matters -

DAWSON J:  Which is the more serious, receiving or larceny

when the penalty is the same?

MR TILMOUTH:  The penalty is the same in South Australia on

the statute book.

DAWSON J: Yes, but which is the more serious?

MR TILMOUTH: Well, as a matter of practice, as I said,

generally the stealing or the breaking and entering

here particularly.

BRENNAN J: That is a different matter.

MR TILMOUTH: That is true.

BRENNAN J: Breaking and entering is a circumstance of

aggravation.

MR TILMOUTH:	Yes.
BRENNAN J: That has to be proved aliunde.	You do not, by

showing that somebody has got possession of

something, prove that it was obtained by breaking

and entering.

MR TILMOUTH:  Yes. Well, with respect, if it is straight

stealing or receiving, it might be a moot point,

both generally and on the facts, which was the more

serious.

BRENNAN J: It depends whether, I suppose, the accused is

somebody who has a warehouse full of stolen goods.

MR TILMOUTH: Exactly. It would depend on the facts and the

individual circumstances of the case. In some

cases, the receiving might be intrinsically more

serious. In others, the stealing, of course, and

it might depend on the view the trial judge took of

the evidence after the jury verdict. He might take

a view consistent with the verdict, of course, as
to certain facts.

Could I add this, as well, Your Honours. These two offences are what, in South Australia,

are called minor indictable offences and they can

be dealt with summarily if the value of the
property is under $2000. It is not the case for

these two charges. They were both above that

limit, but every day, of course, magistrates in

South Australia deal with this type of situation

Gilson 54 14/3/91

commonly and one might ask, how would they direct

themselves if the lesser alternative was available?

In my submission, it would lead to all sorts of

dangers of value judgments that Justice Gray

pointed to.

Your Honours, I mention that currently the

trend in Australia was towards regarding recent
possession simply as an aspect of circumstantial

evidence, I mentioned several cases, I overlooked

the Queensland case of Davis, (1989) 1 Qd R 171,

especially at page 180 to 181. The others I

mentioned were Bellamy, Beljajev and Wanganeen,

there is also a Queensland case.

On my friend's submissions that Seymour is

implicitly an adoption of Langmead, in my

respectful submission, a proper reading of Seymour

leads to no such conclusion at all. Seymour was

simply laying down that, as a matter of practice,

the charges ought to be made as alternatives or

together rather than singly, but I should mention,

Your Honours, that we have referred to and on our

list is the Criminal Appeal Reports and it appears

from the report of Seymour, (1954) 1 WLR 678 that

Langmead was cited by counsel but was not referred

to in the judgments.

It might cut both ways, of course. One might

say that if counsel cited it the failure to adopt

it helps us; one might also say that perhaps in

Seymour they were, to adopt Your Honour

Justice Deane's comment, fudging the issue for the

time being. But I should mention it was cited at

least, if the Weekly Law Reports is correct.

As to the suggestion that an offender might go

scot-free there is, of course, as is generally the

case, the summary offence in South Australia called

unlawful possession.	The provision is section 41
of the Summary Offences Act.	It is on our list of
authorities. That, as is implicit in my
submission, is always dealt with summarily.	The

maximum penalty currently is two years gaol or
$8000 fine so it is not a case, with respect, where

the person goes off scot-free altogether.

DAWSON J:	What constitutes unlawful possession?
MR TILMOUTH:	Something less than receiving or the theft, of

course.

BRENNAN J: Is it possession of goods reasonably suspected

of having been stolen?

MR TILMOUTH: That is right. It is fairly easy to prove

relative to the other offences in any event. I do

Gilson 55 14/3/91

not have the provisions but I think that there are

evidentiary aids at least and perhaps even - - -

McHUGH J: Yes, it is a defence of the charge to prove that

the defendant obtained possession honestly, the

onus is on him.

MR TILMOUTH:	Yes, that is right.
TOOHEY J:	But how would that become available on a jury

trial?

MR TILMOUTH:  It would not but if a person is charged he

could be charged with the three of them and the

unlawful possession charge held over until the

outcome of the jury trial is known.

McHUGH J:  I suppose that is the practice in South

Australia, is it not?

MR TILMOUTH:  It has been done, yes, and it would not be an

autrefois acquit situation either because the

elements are quite different so there is always

that backup mechanism so to speak.

And, finally, may it please Your Honours, on

the question Your Honour Justice Gaudron in
particular raised about the tossing of the coin in

the end result, no doubt Your Honour had in mind His Honour's charge at page 7 but I would remind Your Honours I endeavoured to emphasize it, at

least an intonation, when I read it that His Honour

directed the jury, "They must decide on the

probabilities"; not they may, they must.

BRENNAN J:  Why, if an accused were found not guilty of

stealing or receiving, the acquittal on receiving

would not be a bar to a conviction on goods

suspected of being stolen?

MR TILMOUTH: Well, because the elements are quite

different, if the Court pleases.

BRENNAN J: Perhaps they are, but the relevant element is

the same, is it not, and that is whether he

received it with knowledge?

MR TILMOUTH:  No, I think because the onus is different.

BRENNAN J: It does not matter about the onus, the issue is

resolved.

DAWSON J: It is the one criminal episode.

MR TILMOUTH: That is true. Your Honours, I am caught here,

but I think there are cases which say that the

Gilson 56 14/3/91

acquittal is not a bar to a subsequent charge of

unlawful possession.

McHUGH J:  One issue that is different is that you do not

have to prove that the property is stolen.

MR TILMOUTH: That is true as well.

McHUGH J:	You only have to prove that it is reasonably suspected of being stolen or obtained by unlawful
means.

MR TILMOUTH: That is right. It is quite true, you do not

have to prove, as in Trainer's case, the original

stealing - that is quite true. I am sorry I do not

have those cases on hand, but I think there are

authorities that it is not a bar at all.

On the proviso point, if the Court pleases, my learned friend suggested that on the jury verdict we

have here that, in effect, there was no real

consequence. If the Court pleases, as I endeavoured

to submit earlier, in the end result it cannot be

avoided that the final issue was decided on balance

and it may be that the majority of the jury thought

that the applicant was not guilty of stealing, but

they still might have, with respect, entertained a
reasonable doubt about it and that is the point,

with respect. If the proper direction is that they

must be reminded that he cannot receive from

himself, so to speak, or they have to entertain on

the receiving charge, there is a reasonable doubt

and all we can say here is, at best, for the Crown,

that issue was only determined on the probabilities.

It did not exclude the fact that they might have held that reasonable doubt.

DAWSON J:  I am not sure that you have said to us exactly

how you say the judge should put it to the jury

when there is a receiving and larceny charge?

MR TILMOUTH:  Yes. That would depend on the circumstance, I

would submit.

DAWSON J: Well, in this case, if you like.

MR TILMOUTH:  Yes, a bit like the court suggested in

Shepherd's case. In some cases a direction about -

not so much an intermediate fact but, I call it,

important fact, let us say, that a judge might give

a direction -

DAWSON J: What about, say, about, for instance, the

suggestion that a verdict is taken first of all on

the larceny charge and if it is not guilty then you

go on to consider the receiving charge on the basis

that the accused is not guilty of larceny?

Gilson 57 14/3/91

MR TILMOUTH: That is one alternative.

DAWSON J:  What do you say about it?

MR TILMOUTH: With respect, the better view might well be

perhaps as Your Honour Justice Gaudron indicated,

that the direction Your Honour was suggesting, in

my submission, the way a jury might approach it as

a matter of drawing inferences rather than as the
ultimate onus of proof and suggesting that perhaps
a jury might look at the evidence, see, as a matter

of inference which is the more likely or probable,

and then go on to decide namely whether theft or

receiving is more likely or probable, then exclude

the one that is less likely but still go on to

consider whether or not there is satisfactory

evidence on the whole of the case beyond reasonable

doubt. But that is a reasoning process. It is not

an issue of the onus of proof. I am not sure if

that entirely answers Your Honour Justice Dawson.

DEANE J:  But you have set out at your paragraph 6 what you

say is the proper direction?

MR TILMOUTH:  Yes, we do and we stay with that. And I was

dealing with this suggestion on the basis that it

was an alternative and, as I understood what

Her Honour Justice Gaudron was saying was that

accepting that the onus of proof should not be
compromised maybe the direction about the use of
the circumstantial evidence might appropriately

include some reference to what is more likely or

probable but, as a matter of inference, not as a

matter of onus.

McHUGH J:  Would a case of simple larceny be tried in South

Australia with an alternative count of receiving?

MR TILMOUTH:  Most often - perhaps that is too strongly put.

It is very frequent, or not infrequent. It

depends, I suppose, on what the prosecutor feels

the gravemen of the case is.

McHUGH J: Well, what would be wrong with a direction which

said, "If you are convinced beyond reasonable doubt

that the accused is guilty of either the main

charge or the alternative charge but you cannot

make up your mind, convict him of the alternative

charge"?

MR TILMOUTH:  What would be wrong with that is what, with

respect, I endeavoured to put earlier, that is, it

does not resolve - if you say the alternative

charge it is another way, with respect, of saying

the lesser charge, or the one that logically comes

second in the scheme of the elements of things.

But that does not resolve the issue, with respect.

Gilson 14/3/91

McHUGH J: Well, it does in one sense because the jury have

not been convinced beyond reasonable doubt of one,

so it must leave the other one, must it not?

MR TILMOUTH:	In my submission, no, because - not where the offences are mutually exclusive. In my submission,
if that step was to be taken it is a matter for Parliament. It is not a matter for the common law.
That would be too drastic a step, with respect.
DAWSON J:	Mr Tilmouth, receiving is always an alternative, theoretically anyway, to larceny without it being
pleaded, is it not, in South Australia?
MR TILMOUTH:	I think so, Your Honour, at common law.

DAWSON J: It is a question for the judge as to whether on

the facts of the particular situation he leaves it

or not?

MR TILMOUTH:  Mr Kourakis tells me as a matter of practice

if it is to be relied on it is always pleaded. He

says there is no provision to bring in a verdict if

it is not charged, and that may be right.

McHUGH J: Well, at common law it could not add them later.

MR TILMOUTH:  No, because they are not true alternatives

simply because they are mutually exclusive so

they - - -

DAWSON J:  And that is the only statutory provision, the one you have referred us to?

MR TILMOUTH:  Yes, it is, 196. Some of the other Codes may

allow the alternative.

DAWSON J:	I think that is right.
MR TILMOUTH:	But in South Australia, if it is to be relied

on, the invariable practice - I can say this

safely - is that it is charged in the one
information.	If the Court pleases.

MASON CJ:  Thank you, Mr Tilmouth. The Court will consider

its decision in this matter.

AT 3.39 PM THE MATTER WAS ADJOURNED SINE DIE

Gilson 59 14/3/91