Howell v Visser

[2001] TASSC 39

[2001] TASSC 39

CITATION:             Howell v Visser [2001] TASSC 39

PARTIES:  HOWELL, Craig Anthony
  v
  VISSER, Claas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 23/2000
DELIVERED ON:  6 April 2001
DELIVERED AT:  Launceston
HEARING DATE/S:  20 March 2001
JUDGMENT OF:  Crawford J

CATCHWORDS:

Criminal law - Evidence - Matters relating to proof - Miscellaneous matters - Absence of available evidence - Where facts within knowledge of accused - Receiving stolen property - Recently stolen property found on defendant's premises - Whether inferences as to possession and knowledge that property stolen may be drawn.

Weissensteiner v R (1993) 178 CLR 217, applied.

R v Hocking [1988] 1 Qd R 582; B v Visser [2001] TASSC 141, distinguished.

Bruce v R (1987) 61 ALJR 603, referred to.

Aust Dig Criminal Law [461]

REPRESENTATION:

Counsel:
             Applicant:  M J Brett
             Respondent:  P R Sherriff
Solicitors:
             Applicant:  G A Richardson
             Respondent:  Director of Public Prosecutions

Judgment ID Number:  [2001] TASSC 39
Number of paragraphs:  20

Serial No 39/2001

File No LCA 23/2000

CRAIG ANTHONY HOWELL v CLAAS VISSER

REASONS FOR JUDGMENT  CRAWFORD J

6 April 2001

1. The applicant was convicted by a court of petty sessions at Launceston on one count of receiving stolen property, contrary to the Criminal Code, s258. The charge was found proved upon the basis that on 1 March 2000 he was in possession of the property in question, knowing it to be stolen. He was sentenced to imprisonment for four months. He has applied to review the conviction and sentence.

1. On 1 March 2000, police officers went to the applicant's home at 18 Clyde Street, Invermay where they conducted a search for stolen property pursuant to a search warrant.  A quantity of stolen property was found.  It included a microwave oven, two extension cords, an electric sander and an electric grinder which had been stolen from the home of a Mr Boyd in Russell Street, Invermay.  The home had been burgled either earlier on the day of the search or on the previous day.  The items were found on the floor in the hallway of the applicant's home.  There was another microwave oven in the applicant's kitchen.  Detective Inspector Otley gave evidence, which the learned magistrate accepted, that he asked to whom the property belonged and the applicant's reply was "I've had them for years". 

1. Also found was a large quantity of electrical tools, sockets and spanners, which the evidence established had been stolen from the premises of Hinman Wright and Manser between 26 and 27 February, that is to say only two or three days before the search.  Some of the items could be identified by the initials HWM scratched on them.  Others had been painted by the owner.  The learned magistrate found that the items could be seen in four photographs in evidence.  My inspection of the photographs, together with a consideration of the evidence of Mr Roberts, a yardman employed by Hinman Wright and Manser, suggests to me that the electrical items included four angle grinders, a heat gun, a rattle or ratchet gun, a power saw, two drills and a bench grinder.  There may be one or two errors in what I have just stated.  There was evidence that Detective Constable Hyland entered the house, having found the spanners which had been painted red and had HWM engraved on them, and that Detective Constable Pratley asked the applicant:  "What about those Craig?"  The applicant replied:  "Oh, I've had them for ages." 

1. Concerning where on the applicant's property the items stolen from Hinman Wright and Manser were found, there was some vagueness and uncertainty in the evidence.  Detective Constable Hyland's evidence was that in a tool shed in the yard the spanners and sockets were found together with a drill, one or two angle grinders, a bench grinder and a circular saw (the power saw), which was in a cupboard.  In the boot of a Falcon station wagon in the backyard of the residence he found the heat gun and another drill.  In the boot of a Ford Escort in the backyard his evidence was that he found three grinders, two drills and a circular saw.  There was evidence that access to the boots of those vehicles was obtained by Detective Constable Hyland entering the house and asking for the keys of the vehicles, whereupon the applicant gave him the keys to the Falcon and advised him that the keys to the Escort were in the ignition.  Constable Rybka also searched in the backyard with Detective Constable Hyland.  His evidence was that the items shown in photograph 1 in evidence were those found in the shed, the items in photograph 2 were found in the Falcon and the items in photograph 4 were found in the Escort.  There may have been some minor conflicts between the evidence of the two police officers as to which items were found where, but I do not regard the conflict as being significant for the purposes of the motion to review. 

1. There was also found at the applicant's residence, between the Falcon and the Escort in the backyard, a mountain bike which had been stolen in the course of a burglary on 11 February 2000 of a home at 6 Trevallyn Road, Launceston. The learned magistrate held that the evidence was insufficient to enable him to find that the applicant was in possession of it. 

1. There was evidence that at the time the police arrived at the applicant's residence, there were a number of adults there in addition to the applicant.  Detective Inspector Otley accepted that there may have been five, who included the applicant, his wife, a Mr Rossiter and two other people.  Detective Constable Hyland also gave evidence that there were five adults he named as the applicant, his wife, a Mr McKenzie, a Mr Tuck and Mr Rossiter.  Detective Constable Pratley gave evidence of four or five adults.  He identified in particular the applicant, his wife, Mr Rossiter and he thought a Mr Dwayne Burns.  At the time the police arrived, some of the men were working on the construction of a pergola at the rear of the house.  Detective Constable Hyland thought that three of the men were engaged in that, being Mr McKenzie, Mr Tuck and Mr Rossiter.  Detective Constable Maher said that at least two of the men were working on the pergola.  The other police officers were not so specific. 

1. At the conclusion of the prosecution case, the learned magistrate rejected a defence submission that there was no case to answer, without giving reasons until the conclusion of the case.  The applicant elected not to give or call evidence.  The magistrate reserved his decision.

1. When publishing his reasons, the learned magistrate first gave them with respect to his finding that there was a case to answer, before turning to whether the charge had in fact been proved. 

1. Concerning whether there was a case to answer, the reasons may be summarised as follows.  The applicant had acknowledged ownership of the property which had been stolen from Mr Boyd ("I've had them for years") and of the spanners which were part of the property stolen from Hinman Wright and Manser ("oh, I've had them for ages").  The stolen property was found on premises where the applicant resided and entry to the premises was gained following the production of the search warrant to him.  Some of the Hinman Wright and Manser property was found in a shed on the premises.  His Worship noted it had been argued that with respect to the Hinman Wright and Manser property found in the two motor vehicles, there was no evidence that he was the owner of the vehicles.  His Worship referred to the evidence that the applicant had produced the keys to the Falcon on request and had told the police where the keys to the Escort were to be found.  His Worship said that "in the ordinary course of human affairs it is not an unreasonable inference that the person who has control of keys and has intimate knowledge as to where the car keys can be found is either the owner of the vehicle or the person who has control over the vehicle".  His Worship held that a "jury could conclude that the cars in question were the defendant's, and that the property in question is not likely to find its way distributed between the two vehicles in his boot without his knowledge or permission".

1. Concerning the applicant's statement that he had owned the two spanners for ages, the learned magistrate held that a reasonable jury could conclude that was a lie and that it was made with a consciousness of guilt.  A jury could reasonably conclude that the applicant had come into possession of the Hinman Wright and Manser property and in view of his lie, it could be concluded that he must have believed, to the exclusion of other possibilities, that when the Hinman Wright and Manser property came into his possession it was stolen.  Earlier, his Worship had made similar remarks concerning the Boyd property and arising out of the applicant's statement that he had had the property "for years".  His Worship then said: "Now there are, of course, other rational hypotheses but I must take the prosecution evidence at its highest."  The learned magistrate said that under the circumstances he concluded that there was a case to answer in respect to Mr Boyd's property and Hinman Wright and Manser's property.

1. The learned magistrate then turned to consider whether the charge had been proved and he said:

"Now the defendant chose not to give evidence.  Now that, of course, is not evidence and his failure to give evidence cannot be used to fill in gaps in the evidence.  The evidence as it stands is capable of a rational hypothesis consistent with both guilt and innocence.  However, as is pointed out in the High Court in R v Weissensteiner, 'A rational hypothesis consistent with innocence may cease to be so where evidence in support of it - where evidence in support of that hypothesis is solid [sic] within the knowledge of the defendant and the defendant does not give evidence.'  Now that is as I understand that I am able to more confidently draw inferences consistent with guilt than I could otherwise do so where the prosecution evidence was not uncontradicted.  After considering all the evidence, I am satisfied beyond a reasonable doubt that the charge is proved except in respect of the large grinder appearing in photograph 2 about which there is a conflict of evidence between Det Hyland and his notes and Det Rybka.  Now the complaint will be amended to include the two spanners referred to in Det Pratley’s evidence and identified by Mr Roberts as belonging to Hinman, Wright and Manser."

1. One of the grounds of the motion to review is that the learned magistrate erred in law by applying the principle in Weissensteiner v R (1993) 178 CLR 217 to the question whether the prosecution had proved beyond reasonable doubt that the applicant knew that the property was stolen property. Weissensteiner is authority for the proposition that where in a case which is substantially based on circumstantial evidence, the prosecution case is such that an inference adverse to the accused may be drawn from proven facts in the absence of some answer or explanation, the failure of the defendant to make such an answer or explanation, when this might ordinarily be expected of an innocent person, may permit the court to draw that inference more readily.  However, the failure to give evidence is not itself evidence of guilt and cannot be used to fill any gap in the prosecution case.  In deciding whether the inference should be drawn in the circumstances, the court should always bear in mind that, apart from the possibility that if the defendant had given evidence it would not have assisted his or her case, the defendant may have had other reasons not to give evidence.  In the circumstances of this case, a desire to protect a member of his family or a friend who resided with him, is a possible reason which comes to my mind, as does a belief, possibly mistaken, that the prosecution case was too weak to sustain a conviction. 

1. Counsel for the applicant referred to R v Hocking [1988] 1 Qd R 582 at 593 and B v Visser [2000] TASSC 141 at par8, as authorities for the proposition that the Weissensteiner principle has no application in relation to the drawing of inferences as to an accused person's state of mind.  The relevant issue in both those cases, concerned the intention of the accused man when he committed certain proved acts.  Although reference was made in the judgments of Williams J and Blow J respectively to the "state of mind" of the charged person, the real issue was that of intention and in my opinion those cases may be confined to prohibiting, in most cases, the drawing of the Weissensteiner inference, based on proven acts of the accused, concerning his or her intention when those acts were performed.  Where the alleged acts have been proved by direct evidence, the fact that the intention of the accused can only be inferred from those acts, does not convert what would otherwise have been a case based entirely or substantially on direct evidence into a case based on circumstantial evidence. 

1. I do not read what was said by the learned magistrate in this case concerning the application of the Weissensteiner principle, as being confined to the question whether the applicant knew that the property was stolen.  There were two main issues, whether the applicant was in possession of the property and if so, whether he knew it was stolen.  In my view, the learned magistrate's use of the principle was directed to both of those issues and I do not accept that R v Hocking and B v Visser assist the applicant in the case presently under review.  His Worship had not earlier expressed a finding that the property was in the applicant's possession and I think that the discussion about the drawing of inferences from the applicant's failure to give evidence, concerned that issue as well as the issue of the applicant's state of knowledge. 

1. Counsel for the respondent pointed out that the drawing of the inference that the applicant knew that the property was stolen, was justified under what is commonly referred to as the doctrine of recent possession, which is based on similar principles to those of Weissensteiner.  If someone is found in possession of goods soon after they have been stolen, and fails to give a credible explanation of the manner in which they were come by, the court is justified in inferring that the person either was the thief or was guilty of dishonestly handling the goods, knowing or believing them to be stolen.  Bruce v R (1987) 61 ALJR 603. Where the only evidence on the charge of possession of stolen goods is that the defendant was in possession of stolen goods, the court may infer guilty knowledge if the defendant offers no explanation to account for the possession or the court is satisfied that the explanation which is given is untrue. However, the inference which may be drawn from possession of stolen goods depends on it first being proved that the accused person was in fact in possession of the stolen property. It is an inference of guilty knowledge and not an inference of possession. In this case knowledge and possession could only be inferred and so Bruce's case did not fully apply to it.

1. The question therefore remains whether the learned magistrate was entitled "to more confidently draw inferences consistent with guilt" (his Worship's words) on the issues of possession and knowledge than he "could otherwise do so where the prosecution evidence was not uncontradicted".  I do not consider there was any error in what was done by his Worship in that regard.  The case concerning both issues was largely circumstantial.  There was little direct evidence that the applicant was in possession of the property.  His admission that he had been in possession of it "for years" or "for ages" arguably did not amount to direct evidence of his possession, having regard to the obvious fact that what he said amounted to lies.  His lies amounted to circumstantial evidence.  Other circumstantial evidence included that the stolen property was found on the residential premises which he occupied, and that some of it was found in two motor vehicles in the yard of the premises, the keys to one of which he produced and the keys to the other were where he directed the police to find them.  Once it was found that the applicant was in possession, if it was so found, then an inference of knowledge that the property was stolen was also open, on the authority of Bruce.  His Worship was entitled to more confidently draw inferences adverse to the applicant with regard to both possession and knowledge, arising out of the failure of the applicant to answer or explain the facts established by the evidence.

1. A second ground of the motion was that the learned magistrate "erred in law when directing himself as to when a lie can be used to draw an inference that the lie amounted to a consciousness of guilt".  Counsel for the applicant relied on what was said in Edwards v R (1993) 178 CLR 193 at 211, by Deane, Dawson and Gaudron JJ, that a jury should be instructed that there may be reasons for the telling of a lie apart from a realisation of guilt, such as panic, to escape an unjust accusation or to protect some other person. Their Honours said that the jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. Counsel submitted for the applicant that there may well have been reasons for his client's lies other than a consciousness of guilt. As I understand counsel's submission, it was that the learned magistrate erred because he failed to mention that he had considered such matters. I am not persuaded that an error of that kind was committed. The only time his Worship referred to the applicant's lies was in the course of his reasons for concluding that there was a case to answer. His Worship held that a reasonable jury could conclude that the lies were told because of a consciousness of guilt and that, in turn, it could be concluded that the applicant knew that the property was stolen. That a jury could have so concluded, in the circumstances of this case, is undoubted. His Worship was not giving directions to a jury and it was not incumbent on him to set out in his reasons all of that which a judge, if the case had been tried before a jury, would have been required to direct.

1. The final ground of the motion to review against conviction, which was argued for the applicant, was that the learned magistrate did not give adequate consideration to the question whether he was satisfied beyond reasonable doubt that the property in the vehicles was in the possession of the applicant.  The criticism made by the applicant's counsel was that although the learned magistrate held, when giving reasons for his ruling that there was a case to answer, that it was open to a reasonable jury to conclude that the applicant was in possession of that property, his Worship did not express a finding that such was the case, when giving his reasons that the charge had been proved beyond reasonable doubt.  I am not persuaded that the ground has been sustained.  In the course of his reasons for concluding that there was a case to answer, the learned magistrate adequately canvassed the evidence, the conclusions of fact which could result from it and the issues of possession and knowledge.  Although he did not publish an express finding that the stolen property in the vehicles was in the applicant's possession, it may safely be inferred that he made such a finding. 

1. The notice to review also seeks to review the sentence of four months' imprisonment upon the ground that it was manifestly excessive in all the circumstances.  In my view the sentence was warranted and is not open to criticism.  The applicant was convicted for having possession of property from two recent burglaries, knowing it to be stolen.  He was not a young offender.  He is presently 39 years of age.  In 1980 he was placed on probation for stealing.  That is of little consequence, of course.  However, on 26 June 1998 he was convicted in the Supreme Court at Launceston of three counts of stealing and was sentenced to 18 months' imprisonment.  On 23 March 1999 he was released on parole for nine months and he committed the present offence only a year later.  The sentence of four months' imprisonment was well within the appropriate range of penalties in those circumstances.  He could not have expected anything other than a prison sentence and four months was not manifestly long.  A sentence of personal deterrence, as well of general deterrence, was required. 

1. For the reasons I have given, the motion to review will be dismissed.