Gregory Dean Hill v The Queen
[2011] ACTCA 5
•22 February 2011
GREGORY DEAN HILL v THE QUEEN [2011] ACTCA 5 (22 February 2011)
APPEALS – absence of evidence for element of offence not raised at trial – consideration of appeal point not raised at trial – inappropriate to refuse to consider appeal point relating to fundamental aspect of conviction.
CRIMINAL LAW – conviction appeal – conviction for “receiving” requires proof of all transfers from original thief, including state of mind of all other “receivers” involved – Criminal Code Act 2002 (ACT) ss 313, 314.
CRIMINAL LAW – conviction appeal – “proviso” (no substantial miscarriage of justice) not applicable in absence of evidence for element of offence – prevalence of offence irrelevant in conviction appeal where elements of offence not made out – Supreme Court Act 1934 (ACT), s 37O.
Criminal Code 2002 (ACT), ss 44, 304, 313, 314, 324
Supreme Court Act 1933 (ACT), s 37O
Seivers v The Queen [2010] ACTCA 9
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 19-2010
No. SCC 275 of 2008
Judges: Penfold and Marshall JJ and Nield AJ
Court of Appeal of the Australian Capital Territory
Date: 22 February 2011
IN THE SUPREME COURT OF THE ) No. ACTCA 19-2010
) No. SCC 275 of 2008
AUSTRALIAN CAPITAL TERRITORY)
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:GREGORY DEAN HILL
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Penfold and Marshall JJ and Nield AJ
Date: 22 February 2011
Place: Canberra
THE COURT ORDERS THAT:
The conviction recorded against the appellant in respect of the offence of attempt to receive stolen property is set aside and a verdict of not guilty is entered on that charge.
The matter is remitted to the primary judge for re-sentencing of the appellant on the remaining two charges of damage to property and assault occasioning actual bodily harm.
IN THE SUPREME COURT OF THE ) No. ACTCA 19-2010
) No. SCC 275 of 2008
AUSTRALIAN CAPITAL TERRITORY)
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:GREGORY DEAN HILL
Appellant
AND:THE QUEEN
Respondent
Judges: Penfold and Marshall JJ and Nield AJ
Date: 22 February 2011
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
Introduction
The appellant, Mr Hill, was charged with the offence of attempt to receive stolen property in breach of ss 44 and 313(1) of the Criminal Code 2002 (ACT). The primary judge, after a trial before him without a jury, ordered that a verdict of guilty be entered in respect of the charge, and convicted Mr Hill. The primary judge sentenced Mr Hill on the attempt to receive stolen property charge and, at the same time, sentenced him in relation to two other charges to which he had pleaded guilty. Those charges were damage property and assault occasioning actual bodily harm.
On the appeal, Mr Hill challenges the finding of the primary judge that the offence of attempt to receive stolen property was made out.
There is also an appeal against the sentence imposed by the primary judge in respect of all three offences. The primary judge imposed a sentence that Mr Hill enter into a good behaviour order for a period of 24 months with conditions that:
(a) Mr Hill accept the supervision of ACT Corrective Services and obey all reasonable directions; and
(b) Mr Hill perform 250 hours of community service over a period of 24 months.
The challenge to the sentence is based on the fact that it was a composite sentence apparently covering all three offences, so that, among other things, Mr Hill (or anyone else for that matter) does not know what his sentence is for each offence, although he concedes that this would have no practical effect unless either his conviction on the attempt to receive stolen property is overturned or he breaches the good behaviour order.
Mr Hill contends that whether or not he is, on appeal, acquitted of the charge of attempt to receive stolen goods, the Court should remit the matter to the primary judge for clarification of the sentences.
At the conclusion of oral argument the Court made the following orders on the appeal, saying that it would publish its reasons for making those orders later:
1. The conviction recorded against the appellant in respect of the offence of attempt to receive stolen property is set aside and a verdict of not guilty is entered on that charge.
2. The matter is remitted to the primary judge for re-sentencing of the appellant on the remaining two charges of damage to property and assault occasioning actual bodily harm.
What follows are the reasons of the Court for making those orders.
Legislative background
Section 44 of the Criminal Code provides in subs (1) that:
If a person attempts to commit an offence, the person commits the offence of attempting to commit that offence.
Subsection 44(2) provides:
However, a person commits the offence of attempting to commit an offence only if the person carries out conduct that is more than merely preparatory to the commission of the offence attempted.
Section 313 of the Criminal Code is headed “Receiving”. Section 313(1) provides:
A person commits an offence (receiving) if the person dishonestly receives stolen property knowing or believing the property to be stolen.
In the context of the offence of receiving stolen property, s 314 of the Criminal Code defines “stolen property” to be “property” which is:
(a)“original stolen property”; or
(b)“previously received property”; or
(c)“tainted property”.
Under s 314(4)(a), so far as is presently material, property is “original stolen property” if it was appropriated in the course of theft or a related offence and “is in the custody or possession of the person who appropriated it”. Under s 314(5), property is “previously received property” if it was received in the course of an offence of receiving and “is in the custody or possession of the person who received it in the course of that offence”. The reference to “tainted property” is not relevant in this case.
Factual background
On 1 April 2008, police intercepted telephone conversations between Mr Hill and two other people who spoke to Mr Hill in the course of the call, being a Mr Reid and a young female recorded in the trial transcript as “Shahn”. As a result of listening to those conversations, police believed that Mr Reid was about to sell to Mr Hill property that had recently been stolen. The telephone conversations included references to a plasma television set and two laptop computers which were offered by either or both of Mr Reid and “Shahn” to Mr Hill for a price. The parties to the conversation arranged to meet at a car park in front of the Erindale Active Leisure Centre.
Police intercepted a further conversation involving Mr Hill as he drove to the car park. When he arrived, Mr Hill had a conversation with Mr Reid and the young female at their car. The two cars left the car park, and Mr Hill then parked his car outside the main entry doors of the Erindale Shopping Centre. Police intercepted Mr Hill’s car, where they found Mr Reid sitting in the front passenger seat. When arrested, Mr Hill was found with three $50 notes in his left hand and a $50 note, Commonwealth Bank Eftpos card and a wallet in the pocket of his jeans. Police also found a laptop computer covered by a jacket in the back seat of Mr Hill’s car.
The laptop found in Mr Hill’s car, as well as other property, had been stolen that day from the home of a Ms Daniel. Blood had been spilt in Ms Daniel’s home on the day of the burglary. Blood belonging to Mr James Thorn was found on the laptop computer discovered in Mr Hill’s car. Mr Thorn was subsequently charged with the burglary at Ms Daniel’s home. There was no evidence before the trial judge whether or not Mr Thorn was convicted of that charge.
The receiving issue at trial
Before the primary judge, defence counsel focused on whether there was sufficient evidence to prove that Mr Hill’s conduct constituted an attempt by Mr Hill to receive stolen property. Counsel submitted before his Honour that acts undertaken by Mr Hill to receive the laptop computer were merely preparatory to the commission of an offence (see s 44(2) of the Criminal Code). Counsel also contended that Mr Hill only suspected that the laptop computer was stolen and did not know or believe that it was stolen. The primary judge rejected those submissions. No issue is taken on appeal with that rejection. Rather, counsel for Mr Hill on the appeal submits that the charge before the primary judge was incapable of being established on the evidence adduced, having regard to the definition of “stolen property” in s 314 of the Criminal Code.
The receiving issue on appeal
At [13] of his reasons for judgment, the primary judge said:
In s 314 of the Code, stolen property has an extended meaning for the purposes of the offence of receiving. For the purposes of this case, I take its meaning to include property obtained by theft, robbery or burglary (s 314(4) and (10)) and as also including previously received property (s 314(5)).
Was the laptop computer “stolen property”?
Counsel for Mr Hill now contends that the primary judge did not analyse the evidence before him to consider whether the laptop computer was in fact “stolen property” as defined by s 314 of the Criminal Code. Counsel submits that the laptop was not “original stolen property” because, although it was appropriated in the course of a burglary, it was not shown to be, at the time of the alleged offence, in the custody or possession of the person who appropriated it. There was no evidence that Mr Reid or “Shahn” appropriated the laptop computer. Counsel further contends that the laptop computer was not “previously received property” because, it was not shown to be, at the time of the alleged offence, property that had been received in the course of an offence of receiving and that was in the custody or possession of the person who received it in the course of that offence. There was effectively no evidence that Mr Reid had received it, in the course of an offence of receiving, from the person who stole it.
The contentions of counsel for Mr Hill are persuasive. Indeed, counsel for the respondent did not seriously challenge them, save by contending that the primary judge was able to infer that Mr Hill knew he was being offered property which he knew to be stolen. Accepting that Mr Hill may have believed the property to have been stolen, and indeed to be “stolen property” in the ordinary meaning of that phrase, the elements of the offence remain unsatisfied. That is because of the way s 314 of the Criminal Code is framed. The laptop is not “original stolen property” under s 314(4), because there is no evidence that Mr Reid was the person who stole the laptop from Ms Daniels. Section 314(5) is also of no assistance to the respondent, because there is no or insufficient evidence that Mr Reid came into possession of the laptop computer by receiving it (within the meaning of s 313(1)) it from the person who stole it, or from anyone else who had “received” it (again within the meaning of s 313(1)) from the original thief.
The elements of the offence, and particularly the definition of “stolen property”, were not canvassed at trial before the primary judge. The trial was conducted on the assumption that the laptop computer was stolen property as a matter of fact and therefore was stolen property for the purposes of s 313 of the Criminal Code. The foregoing analysis of the submissions made on the appeal by counsel for Mr Hill shows that that is not so. When one focuses on the definition of “stolen property” in the Criminal Code at s 314, it is apparent that the evidence before the primary judge was incapable of proving that the offence charged was made out.
Consequences of finding that “stolen property” was not proved
It is necessary to comment on submissions made by counsel for the respondent about how the Court should deal with our finding that the offence could not have been made out by the evidence called at the trial.
The “proviso” – no substantial miscarriage of justice
First, counsel suggested that the Court should “apply the proviso”, being s 37O(3) of the Supreme Court Act 1934 (ACT), which permits the Court of Appeal to dismiss an appeal against conviction if it considers that “the point raised by the appeal might be decided in favour of the appellant; but [that] no substantial miscarriage of justice has actually occurred”. This is a superficially attractive proposition, given the likelihood, based on the evidence, that Mr Hill knew that the laptop computer was stolen property in the normal meaning of the phrase. However, the fact remains that the evidence led at trial was not sufficient to make out the offence as set out in the Criminal Code, and we do not consider that the “proviso” can be relied on to preserve a finding of guilt where there has been a failure to call any or sufficient evidence in relation to a necessary element of the offence.
Prevalence of offence of “receiving”
Secondly, counsel for the respondent argued that receiving stolen goods was a prevalent offence which was important to the prevalence of property crime, noting that if there were no receivers there would be far fewer burglaries and thefts. A submission of this nature may be appropriate in a sentencing hearing for its relevance to such things as the importance of general deterrence; in our view, it has no place in an argument about the determination of guilt. Sentencing involves an exercise of discretion, but there is no discretion in a trial judge to find a person guilty in the absence of evidence of all the necessary elements of the offence, however prevalent that kind of offence might be.
Appeal points not taken at trial
Finally, the Court recognises that there is a question about the proper way to deal with an appeal point that was not taken at trial. Accepting that it is generally undesirable to allow a matter to be raised on appeal when it was not put in issue at the trial, we nevertheless consider that it would not be appropriate to refuse to consider an appeal ground challenging whether the necessary elements of the offence were in fact the subject of any evidence at trial. The obligation on the prosecution to establish all elements of the offence beyond reasonable doubt means that an oversight by the prosecution in not leading appropriate evidence cannot be dismissed as inconsequential merely because no-one else noticed it during the trial either.
Difficulty of proving “receiving”
We note in this context that the statutory offence of receiving may well be difficult to make out at a trial, given the apparent need to establish beyond reasonable doubt the equivalent of a “chain of title” between the original thief and the person who has been charged with receiving the property, including proof of the knowledge or belief of each person who has handled the property since it was stolen.
We also note that the Crimes Legislation Amendment Bill 2010, currently before the ACT Legislative Assembly, proposes an amendment of s 324 of the Criminal Code (dealing with possession of stolen property) so that it no longer relies on the s 314 definition of “stolen property” but instead on a definition of stolen property as property obtained through “any assumption of the rights of an owner to ownership, possession or control of property, without the consent of a person to whom the property belongs” (s 304 of the Criminal Code). The summary offence created by s 324 may become an easier offence to establish, in a case where the process by which the accused came into possession of the property concerned is not clear-cut and easily provable.
Scope for remitting matter to a new trial
Counsel for the respondent invited the Court to remit the matter to the primary judge for a new trial. We did not consider that it was appropriate to do so. It would be an unusual step to remit a matter for re-hearing in circumstances where, at trial, the prosecution did not lead evidence or sufficient evidence to establish an element of the offence charged and where, accordingly, a verdict of not guilty should have been the outcome of the trial. In the factual circumstances before the Court below, and in the context of the definition of “stolen property”, the verdict of guilty was unsafe and unsatisfactory. Accordingly, there should be “no question of ordering a new trial”; see Seivers v The Queen [2010] ACTCA 9 at [72].
Conclusions on conviction appeal
For these reasons, the Court ordered that the conviction recorded against Mr Hill in respect of the offence of attempt to receive stolen property be set aside and that a verdict of not guilty be entered on that charge.
The sentence
It was agreed that if the Court ordered a verdict of not guilty on the charge which was contested before the primary judge, we should remit the matter to his Honour for him to re-sentence Mr Hill for the two other offences. It was also agreed that there should in any case be a re-sentencing so that an appropriate sentence is recorded for each of the offences. Counsel for Mr Hill noted that the primary judge did not specify the offence in respect of which the community service order was made.
The sentence or sentences are accordingly set aside, and the offences of damage to property and assault occasioning actual bodily harm are remitted to his Honour the primary judge for re-sentencing in accordance with the orders of this Court.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 22 February 2011
Counsel for the Appellant: Mr K Archer
Solicitor for the Appellant: Kamy Saeedi Lawyers
Counsel for the Respondent: Mr J Lundy
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 14 February 2011
Date of order: 14 February 2011
Date of publication
of Reasons for judgment: 22 February 2011