Hasson v Police Department of Western Australia - [2006] WASC 207

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HASSON -v- POLICE DEPARTMENT OF WESTERN AUSTRALIA [2006] WASC 207

CORAM: MURRAY J

HEARD: 5 SEPTEMBER 2006

DELIVERED : 15 SEPTEMBER 2006

FILE NO/S: SJA 1034 of 2006

BETWEEN: BRENT DOUGLAS HASSON
Appellant
AND
POLICE DEPARTMENT OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE V EDWARDS
Citation  :THE POLICE -v- HASSON
File No  :MD 6 of 2005

Catchwords:

Criminal law and procedure - Theft - Circumstantial evidence - Whether sufficient to sustain conviction - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M E Herron
Respondent: Mr D W L Renton & Ms S E Baker-Goldsmith

Solicitors:

Appellant: G A Lacerenza & Associates
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Shepherd v The Queen (1990) 170 CLR 573

Case(s) also cited:

Chamberlain v The Queen (No 2) (1984) 153 CLR 521

MURRAY J: The appellant was charged with theft, contrary to s 131.1(1) of the Criminal Code 1995 (Cth). He was charged that at Merredin, on 25 November 2004, he, "dishonestly appropriated property namely $540 cash, 15 cheques and some paperwork, belonging to another, a Commonwealth entity, namely the Australian Postal Corporation, with the intention of permanently depriving the other of the property.
There was no doubt that the property described in the prosecution notice was dishonestly appropriated within the meaning of subs 131.2 and 131.3 of the Act. Although the appellant submits that it was not proved that the sum of $540 did not reach the Australian Postal Corporation as found by the Magistrate, I think there was clear evidence to support the finding made beyond reasonable doubt that the property was dishonestly appropriated within the meaning of the Act. Nor was there any doubt that the person who did so took the property with the intention of permanently depriving the other of the property. In short, the money was taken and the cheques and other papers belonging to the Australian Postal Corporation were screwed up and left in a bush area at the old Merredin rubbish tip, some 15 kilometres out of town on the Merredin‑Nungarin Road. The question at issue in the case was whether the appellant was the offender.
On that issue there was no direct evidence when the case came to trial in the Magistrates' Court at Merredin. It was very much a circumstantial evidence case, and as will be seen it was the type of case where the prosecution sought to prove the appellant's guilt by establishing a chain of circumstantial facts, putting the money and other property into the possession of the appellant at the time when it must have been taken, and seeking to exclude the proposition that any person unknown may have taken it.
In those circumstances, although individual circumstantial facts do not ordinarily require to be proved beyond reasonable doubt, in this case it was necessary to establish them to that standard of proof. In Shepherd v The Queen (1990) 170 CLR 573, it was held that it is those facts which constitute the elements of an offence which must be proved beyond reasonable doubt. And in a circumstantial evidence case, the circumstantial facts from which guilt or the existence of the elements of the offence is to be inferred, would not need to be proved beyond reasonable doubt. However, in a case where it is necessary for the tribunal of fact to reach a conclusion of fact as an indispensable intermediate step in reasoning towards an inference of guilt, that fact must be established beyond reasonable doubt.
To make that point, Dawson J, at 579 ‑ 580, used the metaphor that where the evidence consists of strands in a cable, the facts which constitute the individual strands will not need to be proved beyond reasonable doubt. The question will be that ordinarily posed in a circumstantial evidence case, whether all the circumstantial facts, considered together, support the inference of guilt beyond reasonable doubt, whereas individual facts, or some of them, may not do so. On the other hand, where the circumstantial facts constitute links in a chain leading to the ultimate inference of guilt, the individual circumstantial facts will need to be proved beyond reasonable doubt because otherwise the burden of proof will necessarily be diminished below the criminal standard.
In this case, the facts that the appellant took the property into his possession, that he retained possession, that no other person did or could have removed the property from the possession of the appellant, and that the property was not delivered by the appellant to its proper destination were circumstantial facts to be proved beyond reasonable doubt to support the inference, drawn on the basis that there was no other inference reasonably open on the evidence, that the appellant dishonestly appropriated the property with the intention of permanently depriving its owner, the Australian Postal Corporation, of it. This was the basis upon which the learned Magistrate approached the case before concluding that the appellant's guilt had been established beyond reasonable doubt.
The appellant is a family man with two small children. He has a criminal history, but as at 23 March 2006, the date upon which he was sentenced, it was a relatively minor one. The last offences, which were offences of dishonesty, were committed nine years earlier. The Magistrate sentenced him to 6 months imprisonment suspended for a year, upon entering into a recognisance in the sum of $1000 to be of good behaviour for that period.
This is an appeal against conviction, not on the basis that the learned Magistrate erred in law in her approach to the finding of guilt, but that she erred in fact in finding guilt established beyond reasonable doubt. I will not set out the grounds of appeal, some of which themselves contain factual errors. This was alleged to be a case where there was theft of mail. The grounds allege that it was not proved to the required standard that the bag containing the money and other items came into the possession of the appellant, that if it did it was not proved to the required standard that the property was not taken by some person unknown during the course of the journey, that if the appellant took possession of the property in question, he delivered everything as required to the Merredin post office and it was not proved that the money was not stolen from there, and finally, if the property was delivered by the appellant to the Merredin post office, it was not proved that it was not transmitted to its ultimate destination, the central office of the Australian Postal Corporation in Perth.
The primary facts as found by the Magistrate and as established by the evidence led at trial appear to me to be as follows. The appellant was employed as a truck driver. He drove a Tip Top bread truck. It had an enclosed rear compartment and it was marked in the usual way as a bread truck. On Thursday 25 November 2004, the appellant was driving the truck, but in addition to delivering bread at various regional centres he was doing a mail run, a run usually performed by a different driver. The appellant had done the particular run only once, some four or five weeks before this date.
On 25 November 2004, the mail run relevantly involved a visit to Trayning post office to deposit and pick up mail. From there, the appellant went to Nungarin, where a visit was made to the Nungarin post office, and from there he drove to Merredin, where the mail was to be delivered to the Merredin post office. As I understand it, the mail was carried in the back of the truck with the bread. There was a door to the back of the truck which could be locked with a padlock, but the appellant's evidence, by way of his answers given to investigating police officers at a videoed interview, was that the door was on occasions left unlocked, as it was on this particular day, so that anybody could gain access to the back of the truck by opening the door.
The manager of the Trayning post office was a Mrs Knott. Her evidence established that the appellant called at the post office at about 10.30 am on 25 November. She saw him collect the outgoing mail bags. There were three. Two were ordinary canvas bags which I gather contained ordinary mail. The third was described as a "silk bag". An example was tendered in evidence as exhibit 3. It is a tan colour and appears to be made of some synthetic silk‑like material. Inside that bag was a further silk bag, a dirty white colour. Mrs Knott sealed it by tying it with string and securing the knot with a lead seal. Obviously, the cord could be cut with scissors or a knife to open the bag.
In that bag Mrs Knott had placed three other bags. One was a Commonwealth Bank banking envelope also sealed with a lead seal. The evidence of Mrs Knott as to what this contained is unclear. She said that it contained, "all of the Commonwealth banking for that day as well - - information". One document recovered later from the old tip site was a Commonwealth Bank Daily Statement of Business for 24 November 2004, the date to which all the records recovered at the tip relate. That statement shows five deposits identified as having been made by particular customers operating particular bank passbooks. The total is $1313.90. That total from that form filled out by Mrs Knott is transferred to an Australia Post form headed Cash Balance Summary of Transactions, but whether, in the Commonwealth Bank envelope, there was the sum of $1313.90 or whether it was simply the transaction records which were contained in the envelope, is unclear.
In any event, if there was that sum of money sent from Trayning post office on 25 November, what happened to it does not appear to have been the subject of any evidence. All that can be said is that the record of the transactions was recovered at the tip and the appellant was never charged with the theft of $1313.90. However, although the Commonwealth Bank envelope was not found at the tip, the document recording the business conducted for 24 November 2004 was. The inference that the envelope had been opened was therefore available.
Also into the inner silky bag, Mrs Knott placed two tamper‑proof bags. These are plastic bags which can be sealed. They bear individual numbers. Of course, they can be opened by cutting them or by otherwise interfering with the seal. The two bags of this type which Mrs Knott put into the silky bag were subsequently recovered at the tip. They were subjected to fingerprint examination without recovering an identifiable print.
Into one of those bags, Mrs Knott placed various records for the transactions completed at the Trayning post office on the previous day, 24 November. One such document, recovered in duplicate, was the Cash Balance Summary of Transactions. Another was a Cheque Detail Sheet. That was recovered at the tip. It gives the particulars of 15 cheques received at the post office. They were payable to various payees. They total $2249.92. All 15 of the cheques, often with supporting invoices or other transaction records, were recovered at the tip. Like all of the documents recovered there, they have evidently been screwed up and thrown away.
Another such record is a document detailing a remittance of the sum of $540 from Trayning post office to head office in Perth. The appellant was charged with the theft of this amount. The money was in notes and coins. It was placed in the second numbered tamper‑proof bag by Mrs Knott, who also made out the remittance advice. This showed that there were two $50 notes, 10 $10 notes, 30 $5 notes, 50 $2 coins, 20 $1 coins, 120 50 cent coins, and 50 20 cent coins.
Although there is no evidence of the total weight of the contents of the silky bag, whether or not it contained the sum of $1313.90 by way of passbook deposits, the coins which comprised part of the $540 remitted from Trayning would have made the silky bag a reasonable weight. I should say that not only is it not clear to me from the evidence given by Mrs Knott whether there was $1313.90 takings of the Commonwealth Bank agency in the silky bag, there is also no evidence, if it was there, of the extent to which that sum was comprised of notes and coins.
As I say, Mrs Knott's evidence establishes that the appellant took possession of the items described above, and he told the police that he put them in the rear of his Tip Top Bakery truck or bread van. From there he drove to Nungarin. He visited the post office there, he said, taking possession of a further bag of outward mail destined to be delivered to the post office at Merredin.
An employee of the Merredin post office, a Ms Cameron, was at her lunch break between 12.30 pm and 1.30 pm on 25 November 2004. At some time during that period there was a knock on the back door. It was the appellant, whom she had seen once before. She knew he was bringing mail from outlying post offices because she saw the Tip Top Bakery truck, and it is the drivers of those vehicles who operate a courier service for the mail. Ms Cameron admitted the appellant and then left him, returning to the tea room. Later, when she went back into the post office area the door was closed and the appellant was gone. The courier bringing mail from Trayning and Nungarin would ordinarily arrive between 11.00 am and 11.30 am, so the appellant was at least an hour late. Ms Cameron did not sort the mail, but in any event she denied interfering with it on 25 November.
A Ms Duncan gave evidence. She was employed in the Merredin post office as a mail sorter. Her shift on 25 November 2004 ran from 5 am until 1.30 pm. Just after 1 pm she saw that the Nungarin mail run had been returned and placed in a mail trolley in the normal way. She sorted the mail and, having done so, "vaguely" recalled seeing an empty silk bag in the bottom of the trolley. I gather that was not an unusual event. Such bags are often returned empty with incoming mail. Ms Duncan also denied having tampered with the mail in any way. The learned Magistrate unhesitatingly accepted the evidence of both Ms Cameron and Ms Duncan. But Ms Cameron gave evidence that there were five employees in the Merredin post office. Whether any of the others were on duty on that day during the time after the appellant attended at the post office I do not know.
On Friday 26 November 2004, a Mr Gunnell stopped at the old Merredin tip, or gravel pit as he described it, to see whether it would be a good location to ride his dirt bike. He had left work at 3 pm and he was at the pit at about 3.30 pm to 4 pm on that day. In the north‑east corner of the pits where there was some light bush, as he was walking along a track he found, in the bush, two mail bags and a number of cheques. They were scattered over a radius of about five metres. There was no money there. Mr Gunnell left things as he found them, and when he returned to his home he telephoned the Merredin police.
Two police officers attended at the old tip site on Saturday 27 November 2004. They had arranged to meet Mr Gunnell there and he showed them what he had found. They retrieved the cheques, the other paperwork and the two plastic tamper‑proof bags to which I have already referred. They said these things were scattered in an area of bush over about five to six square metres, screwed up individually into paper balls. PC Clark, one of the officers, gave evidence that the old Merredin tip site is simply an open tip about 15 kms north of Merredin on the road to Nungarin and Trayning, just near the little township of Nukarni, which is where Mr Gunnell lived.
On 9 December 2004, the police officers interviewed the appellant on video. No charges were laid following that interview, at the end of which the officers advised the appellant that they were proposing to have the papers and bags they had found fingerprinted, which they apparently did, without success.
Early in the interview the appellant was told that the officers were investigating mail which had gone missing and the theft of money from the mail collected from Trayning. When asked what he had collected the appellant said, "Just bags", and he described how he had picked them up, put them in the rear of the truck, leaving the door unlocked and travelled to the Nungarin post office. He had picked up a bag of mail from there, and some empty bags.
He said that he then drove to Merredin and went home, where he parked the vehicle, leaving the bags in the back of the unlocked truck. He said he went home to make some telephone calls to his employer and sort out some delivery dockets from the previous day. He said that he was home for about an hour before he went to the Merredin post office to deliver the mail. It will be recalled that, on Ms Cameron's evidence, he arrived at the post office an hour or more after the courier would ordinarily be expected. He did not remember whether or not there was a brown silk bag among the mail he unloaded.
When the appellant was shown the items which the police had found, including the two plastic tamper‑proof bags, he said he did not recognise any of them, and when told that the police were proposing to have the bags fingerprinted, and when he was asked whether his prints would be found there he said they would not. When told there was money which had been stolen he said that he, "did not steal the money". When it was put to the appellant where the money had been found, he said that he had stopped there on his way into Merredin to relieve himself. He said this was something that he did fairly regularly, rather than trying to hold on until he got into Merredin. He described the old Merredin tip as a "piss stop".
When the questioning persisted the appellant appeared to shift his ground as to what he had carried from Trayning. Originally, as I have mentioned, when asked what he picked up, he said they were just bags. He was not specific. But later, he said that he did not pick up any brown silky bag at the Trayning post office. He said there were just two bags, two green parcels, and I take that to be a reference to what Mrs Knott described as the two ordinary canvas bags containing letters, small parcels and the like. So far as I can see, however, the prosecution did not ask the Magistrate to conclude that this was a deliberate lie of a confessional character because it revealed a consciousness of guilt. Nor in her judgment does her Honour rely upon it in that way. In the result then, this remains a circumstantial evidence case and that was the way in which the Magistrate dealt with it.
The police officers asked the appellant about his financial circumstances. He said, and this is the only evidence, that he was in reasonable financial circumstances. He was "doing all right". He was not struggling to pay his bills. He had about $900 in the bank, and he kept asking the police, rhetorically, why he would steal the $540. He said that particular Thursday was a payday. He was not behind in his bills and, "I wouldn't fuck up a job for $500."
The learned Magistrate found the facts to be as I have described them. Inevitably, she found that the appellant took possession of the property alleged to have been stolen when he picked up the mail at the Trayning post office. She accepted that the $540 had been taken, and she found that the person who did that was the person who screwed up the cheques and other paperwork and left it with the plastic tamper‑proof bags in the bush at the old Merredin tip site. Her Honour found that the cheques and that paperwork had been dealt with in a way that established their dishonest appropriation with intention to permanently deprive the owner of them.

The essence of her Honour's reasoning to guilt is contained in the following passages:
"The bottom line is that items were located at the Merredin tip, cash destined for the Australian Postal Commission did not arrive. Mrs Cameron and Mrs Duncan denied tampering with or taking cash from the mail delivered that day, and I accept their evidence in that respect.
What is proven beyond reasonable doubt is that the accused collected the mail and the items located at the old Merredin tip, from Trayning. He placed hem in the truck. He then drove to Merredin, stopping at the old Merredin tip on the way. What is also proved in my view beyond reasonable doubt, is that Mr Gunnell then found items from the post office, items which the accused had collected, at the old Merredin tip site. There was no one else in the accused's truck on that day.
The accused says he went to his home before attending the post office, leaving the back doors unlocked. It is suggested by the defence that it is possible that the items were stolen by someone at that time. That person then would've had to have gone to the Merredin tip and left the cheques and other paperwork at that site. In my view, I find this suggestion as not being a reasonable inference from the evidence before me, and in my view it is not really open on the evidence.
The proven facts in my view all point to the irresistible inference that the only person who had the opportunity and who attended at the old Merredin tip site on the day in question, was the accused. I'm therefore satisfied beyond reasonable doubt, the accused was the person who dishonestly appropriated the items particularised in the prosecution notice, with the intention to permanently deprive. I therefore find the accused guilty."
The evidence was overwhelming and quite capable of establishing, beyond reasonable doubt, that the appellant took possession of three bags at the Trayning post office, one of which was the brown or tan silky bag which contained another silky bag tied and sealed and which, in turn, contained the three packages described by Mrs Knott. Two of those packages were the tamper‑proof bags found at the old Merredin tip. The contents of one of them, the paperwork and the cheques, were found there also. Those bags had been torn open and, in my opinion, the evidence was clear that that had been done at the tip to investigate their contents.
One bag contained the $540. Again, the evidence was overwhelming that the money was dishonestly appropriated with intention to permanently deprive the owner of it at the tip site. The money was not delivered to the Merredin post office and transmitted on to Perth. The silky bag found at the Merredin post office appears to have had nothing to do with the events the subject of the charge against the appellant. As her Honour the Magistrate found, that was a red herring.
Was there evidence capable of sustaining, beyond reasonable doubt, the inference that it was the appellant who dishonestly appropriated with intent, at the tip site, the money, the cheques and the other paperwork? In my opinion, it was open to the Magistrate to so find, despite the statements made by the appellant at the videoed interview, statements which her Honour clearly rejected in the light of the other evidence which she did accept.
Certainly, on the appellant's evidence, and this was the only evidence, the truck was left unattended and unlocked in Nungarin when he visited the post office there, but the appellant did not purport to notice anything missing when he returned to the truck with the outward mail collected at Nungarin, and in his statements on the video he relied upon the position when he returned to his home in Merredin.
As to that, as I understand it, his home was simply in a suburban area of Merredin and, again, his is the only evidence that he went there and that he left the truck parked outside for about an hour while he attended to other business inside the house. Certainly, it would be possible for somebody to open the truck and take the silky bag, but it must be supposed that the object of opening the truck was to steal bread, unless the person knew that it was the Tip Top truck drivers who were the mail couriers and thought that in this truck, fortuitously encountered, might be found valuable mail. Ordinarily, in the course of the mail run, the truck would not be parked outside the appellant's home. If the silky bag was taken there, then it must be supposed that the thief took it back to the old Merredin tip, back along the road which the appellant had travelled to get into town, before opening the bag and its contents to find the money.
The Magistrate felt that that was an inference not reasonably open. If it was not the appellant who committed the theft when he stopped on the way into town for his toilet break, the chain of coincidence is too great to be feasible. The appellant had the property which was stolen. He had it on the truck when he came to the tip. He stopped at the tip, on his own admission. The contents of the silky bag would have been a reasonable weight, greater than letters and other papers, because of the coins that were there. The appellant must have thought that the greater weight may have indicated something of value. When he stopped at the remote location of the tip site he investigated, found and stole the money. It is inconceivable that had the silky bag been taken by some other person before he got to the Merredin post office the appellant would not have noticed that he was a bag short and he would be expected to have reported the loss.
In my opinion, the inference of guilt beyond reasonable doubt was well open on the facts as they were established by the evidence and found by the Magistrate. The appeal is dismissed.