Laurens v Willers

[2002] WASCA 183

LAURENS & ANOR -v- WILLERS [2002] WASCA 183

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 183
Case No:	SJA:1082/2000	Heard:	24 MAY 2002
Coram:	EM HEENAN J	Delivered:	28/06/02
No of pages:	27	Judgment Part:	1 of 1
Result:	Appeals dismissed
Category:	B
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Parties:	CHELSEA LEE LAURENS JOSHUA MOODIE GLEN RONALD WILLERS
Catchwords:	Appeal pursuant to s 184 of Justices Act 1902 Criminal law Stealing Search without warrant of caravan park for stolen goods Significance of recent possession Rejection of submission of no case to answer Onus of proof Alternative conviction for receiving open Appeal against convictions for stealing after trial before Magistrate
Legislation:	Criminal Code, s 378 Justices Act, s 184
Case References:	Allan v Liverpool Overseers (1874) LR QB 180 Binions v Evans [1972] Ch 359 Bunning v Cross (1978) 141 CLR 54 Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397 Dalton v McNaughton (1903) 29 VLR 144 Field v Sullivan [1923] VLR 70 GH Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635 Ghani v Jones [1970] 1 QB 693 Gilson v The Queen (1991) 172 CLR 353 Halliday v Nevill (1984) 155 CLR 1 King v The Queen [1969] 1 AC 304 Levine v O'Keefe [1930] VLR 70 (FCt) Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 103 A Crim R 312 National Provincial Bank v Ainsworth [1965] AC 1175 Plenty v Dillon (1991) 171 CLR 635 Prasad v The Queen (1994) 68 ALJR 194 R (Rottman) v Commissioner of Police [2002] 2 All ER 865 R v Bilick & Starke (1984) 36 SASR 321 R v Brings (1987) 24 A Crim R 98 R v Davidson (1991) 54 SASR 580 R v Schama & Abramovich (1914) 11 Cr App R 45 Smith v Overseers of St Michael's Cambridge (1860) 3 E & E 383 Trainer v The King (1906) 4 CLR 126 Tye v Commissioner of Police (1995) (Studdert J) SC NSW (BC 9505329) Williams v Douglas (1949) 78 CLR 521 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : LAURENS & ANOR -v- WILLERS [2002] WASCA 183 CORAM : EM HEENAN J HEARD : 24 MAY 2002 DELIVERED : 28 JUNE 2002 FILE NO/S : SJA 1082 of 2000 MATTER : Justices Act 1902 (as amended)

and

Complaints No DO80 of 1999 and DO81 of 1999 in the Court of Petty Sessions at Geraldton between Glen Ronald Willers and Chelsea Lee Laurens and Joshua Moodie

BETWEEN : CHELSEA LEE LAURENS

First Appellant

JOSHUA MOODIE
Second Appellant

AND

GLEN RONALD WILLERS
Respondent

Catchwords:

Appeal pursuant to s 184 of Justices Act 1902 - Criminal law - Stealing - Search without warrant of caravan park for stolen goods - Significance of recent

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possession - Rejection of submission of no case to answer - Onus of proof - Alternative conviction for receiving open - Appeal against convictions for stealing after trial before Magistrate

Legislation:

Criminal Code, s 378

Justices Act, s 184

Result:

Appeals dismissed

Category: B

Representation:

Counsel:

First Appellant : Mr J A Davies
Second Appellant : Mr J A Davies
Respondent : Ms L Petrusa

Solicitors:

First Appellant : Davies & Co
Second Appellant : Davies & Co
Respondent : State Director of Public Prosecutions

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

Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203
Allan v Liverpool Overseers (1874) LR QB 180
Binions v Evans [1972] Ch 359
Bunning v Cross (1978) 141 CLR 54
Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397
Dalton v McNaughton (1903) 29 VLR 144
Field v Sullivan [1923] VLR 70
GH Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635
Ghani v Jones [1970] 1 QB 693


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Gilson v The Queen (1991) 172 CLR 353
Halliday v Nevill (1984) 155 CLR 1
King v The Queen [1969] 1 AC 304
Levine v O'Keefe [1930] VLR 70 (FCt)
National Provincial Bank v Ainsworth [1965] AC 1175
Plenty v Dillon (1991) 171 CLR 635
Prasad v The Queen (1994) 68 ALJR 194
R (Rottman) v Commissioner of Police [2002] 2 All ER 865
R v Bilick & Starke (1984) 36 SASR 321
R v Brings (1987) 24 A Crim R 98
R v Davidson (1991) 54 SASR 580
R v Schama & Abramovich (1914) 11 Cr App R 45
Smith v Overseers of St Michael's Cambridge (1860) 3 E & E 383
Trainer v The King (1906) 4 CLR 126
Tye v Commissioner of Police (1995) 84 A Crim R 147
Williams v Douglas (1949) 78 CLR 521

Case(s) also cited:

Nil

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1 EM HEENAN J: After a joint trial before his Worship Mr D N Jones SM in the Court of Petty Sessions at Geraldton on 2 May 2000, the appellants were each convicted of the crime of stealing. The charges against them were laid by complaints made by the respondent, a police officer, on 20 July 1999. The charges in the complaints were as follows:

"(a) That on the sixteenth day of July 1999 at Port Denison, Chelsea Lees Laurens stole diesel fuel, fuel containers, fishing equipment and a tool box containing assorted tools valued at $600, the property of Gavin James Morton – s 378 of the Criminal Code.

(b) That between the sixteenth day of July 1999 and the seventeenth day of July 1999 at Port Denison, Joshua Steven Moodie stole diesel fuel, fuel containers, fishing equipment and a tool box containing assorted tools valued at $600, the property of Gavin James Morton – s 378 of the Criminal Code."

2 At that trial, each defendant pleaded not guilty and was represented by counsel. At the end of the case for the prosecution, counsel for the defendants made a "no case" submission, but this was overruled. Evidence was then called for the defendants but neither of the defendants themselves gave evidence. After hearing final submissions the learned Magistrate found the charges proved, convicted the defendants and imposed a fine of $500 in each case and made orders for the payment of costs. In the case of the defendant Laurens, only, a spent conviction order was also made.

3 From those convictions the appellants appeal to this Court pursuant to s 184 of the Justices Act 1902, by leave granted by McLure J on 2 May 2001. The applications for leave were brought together and the two appeals have been heard together. The grounds of the appeals are:

"(a) Following a submission on behalf of the appellants at trial that there was no case to answer on complaints of stealing pursuant to s 371 of the Criminal Code, the learned Magistrate erred in law in deciding that there was a case to answer.

PARTICULARS
The learned Magistrate erred in law in finding that the evidence for the prosecution accepted at its highest was

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capable of establishing proof of the elements of the offence of stealing, when there was no evidence or no sufficient evidence before the court to justify such a finding with respect to the elements of the offence charged against the appellants.

(b) The learned Magistrate erred in law in deciding on the said complaints that there was sufficient evidence to establish each of the elements of the offence of stealing beyond reasonable doubt.

(c) The learned Magistrate erred in findings of fact in the case which were not open on the evidence before him.


Error of Law

(d) The learned Magistrate erred in law in that he:

(i) failed to apply the proper standard of proof in assessing the evidence;

(ii) conceded a prosecution submission whereby the onus of proof was shifted to the appellants.

Doctrine of Recent Possession


(e) The learned Magistrate erred in law in finding that the stolen items were found in the actual or constructive "possession" of the applicants at such material times so as to give rise to the presumption of guilt adverse to the accused known as the doctrine of recent possession when in fact the items alleged to have been stolen were located at the place where the applicants had been camping within a public caravan park at a time when:

(i) the applicants were not present and did not have exclusive or any control of the location of their camp site, and;

(ii) at least one other person had previously been in the campsite of the appellants during their absence on the day in question.

Discretion to exclude evidence

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(f) Following an application by defence counsel, the learned Magistrate erred in the exercise of his discretion by failing to exclude evidence of a search and identification of the allegedly stolen items at the camp site of the appellants when such evidence was unfair to the appellants having regard to their want of control of the campsite."

4 As it is submitted that the learned Magistrate wrongly rejected the defence submission of no case to answer, it is appropriate to examine the state of the evidence at the end of the prosecution case at the point when that submission was made and determined.

5 In Western Australia the test to be applied in considering a no case submission made by the defendant at the end of the prosecution case has been described by Malcolm CJ in Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 103 A Crim R 312 at 319 as one where the Judge or Magistrate could ask the question whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond a reasonable doubt. In that case the learned Chief Justice also addressed the test to be applied where the case for the prosecution is entirely circumstantial, and then described the test as being:

"On the assumption that all of the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences that are reasonably open, and are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of the accused."

6 This is a more demanding test than applied previously in this State in R v Brings (1987) 24 A Crim R 98 at 104, but it is consistent with the decision of King CJ in R v Bilick & Starke (1984) 36 SASR 321 at 337 and I regard it as binding upon me. It is more favourable to a defendant or accused. For the continuing academic controversy over these approaches, cfGlass (1981) 55 ALJ 882 and Thomson (1997) 71 ALJ 207.

7 It will also be convenient to address the ground of appeal alleging the wrongful admission of evidence at the same time as considering the submission that there was no case to answer because, obviously, the issue of inadmissibility of certain evidence may also have a consequence upon the determination of the adequacy of the prosecution case when it closed.

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Circumstances of alleged offences

8 In mid-July 1999 the Morton family had been holidaying at Exmouth and were returning in stages by road to Perth. The group comprised Mr G J Morton, a police officer usually stationed in Perth, his wife and their three young sons. They were travelling in the family four-wheel drive vehicle to which was connected a towed trailer containing camping equipment, clothes, bedding, stores and equipment. On their return journey they made several overnight stops; first at Coral Bay and next at Dongara. At Dongara, Mr Morton's uncle and aunt, Mr Ian James and Mrs Patricia James, then owned and operated the Dongara-Denison Caravan Park and the Mortons had arranged to stay with them there in the owners' house on the evening of Friday, 16 July 1999. The Mortons arrived at the Dongara-Denison Caravan Park at about 7.30 pm that Friday evening, drove into the caravan park and left their vehicle and trailer parked inside the caravan park and close by a fence and gate to the owners' house. The family went inside for dinner and to watch television.

9 Later, at a time which was not precisely established, Mr Gavin Morton and his uncle went back out of the house to get overnight gear, toiletries and bedding from the trailer for the family for the night. Gavin Morton estimated that it was at about 11.30 pm when he went out to fetch this material. He found that the trailer had been disturbed and its contents rifled. Ropes securing the gear and covers had been undone and were left trailing. The contents of the trailer had been strewn about. A number of items were found on the ground nearby. Other items, including three jerry cans of diesel fuel, a toolbox with a collection of family tools and appliances, and a fishing tackle box containing various items including a variety of sinkers and lures were missing. Plainly, there had been an unlawful interference with the Mortons' property. The disturbance of the Mortons' trailer was confirmed by Mr Ian James who had accompanied his nephew on the trip to fetch material for the night. When the losses were detected, Mrs Karen Morton also inspected the scene and gave a similar account of interference, property strewn about and items missing. The Dongara police were called by telephone from the James' house.

10 While they were awaiting the arrival of the police, Mr Gavin Morton and his uncle, Mr James, decided to make a wider search within the area of the caravan park and to inquire of persons using the park whether they had seen or heard anything unusual during the course of that evening. However, they did not find any further property and the few campers whom they found were unable to provide any information of assistance.

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11 However, in the course of these investigations and while near the southern boundary of the caravan park, Mr Gavin Morton noticed something which he regarded as unusual. He said he heard a noise while he was in that area and upon looking over the fence saw an unlit vehicle parked on the other side of the fence in the darkness. There was a person putting something on to the tray-back of this vehicle which was a utility. This person, (Mr Morton was unable to say whether it was a man or a woman because of the darkness), got into the passenger door and the vehicle quickly drove off. Mr Morton ran to the caravan park gate in the hope of getting a better view to enable him to read the registration number of the vehicle, but all that he was able to discern was that it was a white Hilux utility with a tray-back and dropsides and, from the sound of its motor, a diesel engine. Mr Ian James said that while at the south end of the caravan park near the outer boundary, he saw someone outside the fence running to a vehicle. This individual put something on the rear of the vehicle, got into the passenger side and the vehicle drove away with its lights off. According to Mr James, this unknown vehicle was clearly a Hilux utility with a tray-back and a diesel engine with at least two occupants, the driver and the person who had got in the passenger's door, both of whom were outlined through the window as the vehicle drove away.

12 While the men in the family were searching the campsite area, Mrs Karen Morton was waiting at the owners' house for the police to arrive. From where she was standing she could see the front entrance of the caravan park. She noticed a vehicle drive by without lights on and she saw that vehicle drive back a little bit later. She was unable to identify the vehicle except to say that she thought it was white in colour and she thought that the event was strange.

13 Two police officers attended at the Dongara-Denison Caravan Park on the evening of 16 July 1999 in response to the Mortons' call. They were PC Ferris and PC Fishwick. They arrived at the owners' house at about 11.37 pm. They took an account from Gavin Morton of what had happened and made a list of items which were missing. This comprised: three jerry cans coloured in differing hues of green containing diesel fuel; a fishing tackle box, and a toolbox. They were told by the Mortons and Mr James of the suspicious white four-wheel drive Hilux utility with a tray-back and drop sides and later that evening spent some time unsuccessfully searching for such a vehicle in the vicinity.

14 At the trial, Mr Ian James also gave evidence that it was his practice to carry out hourly checks on his caravan park by walking through the

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area in the evenings. This evening he had been watching a telecast of an Eagles' football match inside his home with his wife and the Mortons and the last time he had checked the caravan park before the discovery of the interference with the trailer was during the half-time interval. Mr James thought that this had occurred between 9and 10 o'clock that evening. Accordingly, on the evidence at the trial it follows that the interference with the Mortons' vehicle must have occurred some time between 9 pm at the earliest, and 11.37 pm at the latest that night.

15 It seems very probable that the time estimates of Mr Morton and Mr James of the discovery of the disturbed trailer at about 11.30 pm are fairly accurate. It also seems probable that whoever was rifling the contents of the trailer had not completed their task but heard and saw Messrs Morton and James coming out of the house and so fled without being seen. That at least is an inference which could be drawn if there was any basis to associate the presence of the white unlit utility being loaded with some unidentified material, that was seen after the incident and before the police arrived. As will emerge, the strength of the prosecution case against the appellants depended to a significant degree upon a connection between the unidentified white vehicle and the alleged theft.

16 The next morning, Saturday, 17 July 1999, Mr Gavin Morton drove in alone to the shopping centre at Dongara for supplies. After purchasing some milk he decided to drive around the area to search for a vehicle which matched the description of the four-wheel drive white Toyota Hilux seen the night before. He drove to another caravan park, the Dongara-Denison Tourist Caravan Park, entered it and drove around the campsite to inspect the vehicles present. At the end of the caravan park, he found a campsite with a tent pitched, and parked close by, a white tray-back, Hilux utility with an aluminium dinghy on the back. Having located this vehicle, he did nothing further at that other caravan park, but with his suspicions aroused, went back to his uncle's caravan park and from there telephoned the Dongara police to report his discovery. He spoke to PC Glen Willers and reported what he had seen at the other caravan park and waited in the hope of some development.

17 Time wore on and as the Morton family had intended travelling on to Perth that day, he decided that they should pack up and depart for Perth. The family did this and made their farewells to Mr and Mrs James and set out. Before leaving Dongara, however, Mr Gavin Morton decided to make a second and last visit to the Dongara-Denison Tourist Caravan Park in the hope of coming across the owner or owners of the while utility.

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With his family all in his vehicle, Mr Morton drove to the other caravan park to the camp site where he had seen the white utility. Both the vehicle and the aluminium dinghy had gone and there was no-one in attendance near the tent site. Mr and Mrs Morton, however, noticed an orange Weetbix tin on a table nearby which, in appearance, closely resembled a tin which had been among their own equipment on the trailer. At that point they were uncertain whether or not their own Weetbix tin had been taken but Mr Morton decided to get out of the vehicle and have a closer look. It turned out that the Mortons' Weetbix tin was still among their equipment on the trailer and, therefore, the item seen on the table was not of significance. However, having gone to the tent site, Mr Morton decided to look closer and he saw an open toolbox at the site which contained some of his own missing tools including a set of blue Allen keys. Looking further, he found three jerry cans of fuel under a canvas cover which were the same colour as the items taken from his trailer. Furthermore, one of the jerry cans had an identifiable blue sticker and they bore other markings which enabled him to identify them as part of his missing property. He also found a small red Sidchrome set of tools which he also identified as his own .

18 Without moving any of this property, Mr Morton went to the manager's office of this caravan park and from there telephoned the Dongara police asking for Constable Willers and then reported what he had found. Constable Willers arrived shortly afterwards in a police vehicle. As the white utility was not in the camping area he decided to search the townsite area in the hope of finding it. According to PC Willers, it was 3 pm in the afternoon of Saturday, 17 July that he received the telephone call from Morton about the discovery of some of the missing property at bay 3 at the Dongara-Denison Tourist Caravan Park.

19 PC Willers then drove directly to the caravan park and spoke again to Gavin Morton. As Mr Morton was an off-duty police officer, Constable Willers lent him a police radio so that he could observe the campsite and radio a message if the white vehicle returned. The Mortons decided to postpone their departure for Perth, in the light of these events. Mrs Morton returned with the vehicle and the children to the camping area operated by Mr and Mrs James and Mr Gavin Morton waited in the sand dunes with the radio keeping camping bay number 3 under observation.

20 However, Constable Willers had already been conducting investigations earlier that morning. After the first phone call from Mr Morton reporting the discovery of a white Hilux utility (registration

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number 80L-244) at the Dongara-Denison Tourist Caravan Park had been received at about 9.30 am that morning, he had taken several steps. A vehicle registration number check, with police authorities, revealed that the utility belonged to a company. Constable Willers himself visited at the Dongara-Denison Tourist Caravan Park and saw the vehicle parked there near camping bay 3 but found no persons in the vicinity. He went to the manager of caravan park, Mr Peter Escott, and learned that a Ms Laurens was registered as the occupant of bay 3 and that as far as the manager knew, the white utility had not left the camp site the previous evening. According to Mr Escott, Constable Willers came back at least one other time that day before the occupants of bay 3 were located. When he gave this evidence, Mr Escott also said that the police had not sought his express permission to enter his caravan park that day but that he always allowed police into the camp site whenever they wished. He regarded it as appropriate that they should be able to come and enter whenever they wished. He stated that, although no express permission had been sought from him that day for the police to enter, they had his approval to come on to the caravan park site as they did.

21 While Gavin Morton was watching the camp site from the sand hills and PC Willers was looking for a white utility within the townsite area, Constable Willers received a radio message that Mr Ian James had reported that a vehicle matching the description of the suspicious vehicle had been seen outside the Foodlands store in the town.

22 On receiving this information PC Willers drove direct to the Dongara-Denison Tourist Caravan Park to speak again to Mr Escott. While PC Willers was speaking to Mr Escott on this occasion, the white utility drove into the caravan park, past the manager's office and up to bay 3. From his vantage point, Mr Morton saw it arrive and radioed through to PC Willers. This was probably unnecessary because, by then, Willers was aware of its return. Both PC Willers and Mr Gavin Morton then went to the camp site and spoke to the two occupants of the white vehicle who gave their names as Chelsea Laurens and Joshua Moodie and whom were identified as the defendants in the case. On this occasion PC Willers was also accompanied by PC Fishwick. The first interchange with the defendants was described by PC Willers in his evidence-in-chief (at t/s 89) as follows:

"Do youse two live here?"

23 They said:

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"Yes.

I said, 'Is it only youse?'; and they said, 'Yes'.

I said, 'I am here because a person has identified some of his stolen property in your camp.' She said, 'No. It's all our property.' "

24 At this point the police officer said they were going to have a look around the camp. Objection was then taken on behalf of the defendant to evidence being admitted about the results of the search at the camp on the grounds that, as was submitted, the search was unauthorised, there being no search warrant obtained. Somewhat strangely, although at the suggestion of counsel for the defendant, that objection was not ruled upon at that stage of the proceedings and the evidence was received, under cover of the objection, on the basis that the objection could be fully outlined and ruled upon at some convenient stage later in the proceedings. Despite the frequency with which this practice of deferring argument and a ruling on the admissibility of evidence occurs, it is seldom desirable because any objection to admissibility should, generally speaking, be determined at the point it is first raised. Otherwise, there is the risk that inadmissible evidence will be introduced, or that the course of proceedings may be influenced, however subtly, by evidence that is later held to be inadmissible. Nevertheless, in this case, no untoward results appear to have flowed from the delay in dealing with the objection.

25 The police officers and Gavin Morton then located the three jerry cans of fuel, and the toolbox with sundry tools, and examined them. Gavin Morton confirmed that those items were his property although there were other tools in the toolbox which were not his. Photographs were taken. At this stage, Constable Willers cautioned both defendants and then, pointing to the tools, asked whether they were their tools. The defendant Chelsea Laurens said, "They're mine. My boss let me use them while I'm on holidays." He then pointed to the jerry cans and said:

"What about the jerry cans?"

26 And she again said:

"They belong to my boss."

27 The defendants were then asked by Gavin Morton whether either of them could tell him what was engraved on the tools contained in the red socket set. Both defendants were together during this questioning and one

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said, "I don't know what you're talking about". The police officers searched in the vicinity of the tent a little further and found a rope leading into a bush. On following the line of the rope they found that it was attached to a fishing tackle box which Gavin Morton then identified as his. According to PC Fishwick, when the tackle box was discovered, the defendant Moodie said, "My knife's in there. I want it back," whereupon the defendant Laurens told him to be quiet. On being asked about the tackle box, the defendant Laurens said that it was hidden in the bush so that it would not be stolen. The two defendants were thereupon arrested and conveyed to the Dongara police station.

28 At the trial, during the prosecution case, various witnesses for the complainant were cross-examined about the ownership of the property said to have been stolen and their ability to identify the jerry cans, the box of tools with the contents said to be the Mortons' property and the fishing tackle box and its contents. It is unnecessary to detail here the particulars of those issues because both Mr Gavin Morton and Mrs Karen Morton gave evidence variously identifying the items as their property. Furthermore, Mr Morton's father, Mr Barry Lawrence, gave evidence that the socket set in the red cover was a present which he had given to his son Gavin years before when the latter was working on a cattle station. These individual sockets had been engraved with the letters "JUN" as an abbreviation for the word "junior" by which young Gavin Morton had been known at the time. Gavin Morton himself had identified those sockets positively because of this engraving, and it was to the engraving that he alluded when he asked the defendants, in the presence of the police officers at the camp site, whether they could tell him what was engraved on those tools.

29 Somewhat surprisingly, however, it was conceded by counsel for the defendant at the trial that it was accepted that Mr Gavin Morton owned the tools contained in the "Reflex" box which was among the materials discovered at the defendants' camp site.

30 The arguments advanced in support of the defendants' no case submission, at the end of the prosecution case, were essentially that: no adverse inferences of any kind could be drawn from the discovery of the missing property at bay 3 at the Dongara-Denison Tourist Caravan Park because this caravan park was open to the public, without any effective barriers and the missing property could have been left there by another or others; that neither of the defendants was in possession of the missing property so there was no scope for the operation of the doctrine of recent possession; allied to this last contention, the defendants did not have sole

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or exclusive control or any sufficient control of the missing property so as to constitute possession or to give rise to any adverse inferences. Counsel for the defendants also submitted that to draw any inferences from the absence of an acceptable explanation for the missing property being found in proximity to the defendants' camp site would be to reverse the onus of proof; that the evidence relating to the discovery of the missing property followed an unauthorised search, without warrant, of the defendants' camp site and should have been excluded; and, finally, that the so-called doctrine of "recent possession" related only to charges of receiving stolen property and would not support a charge of stealing itself.

31 In dealing with this no case submission, the learned Magistrate, of necessity, was required to rule on the objection to the admissibility of the evidence of PC Willers, and also the evidence from PC Fishwick received under the cover of the same objection, relating to the search of the defendants' camp site in the course of the police interview with them both on their return to that location on the afternoon of 17 July 1999. It is to be noted, however, that evidence to similar effect relating to the location of his property at or near the defendants' camp site was given by Mr Gavin Morton in relation to his visit to the camp site in the absence of the defendants that afternoon as he and his family were setting out for the return journey to Perth. Mr Morton described his investigations again in relation to the occasion when he was present when the defendants returned and were interviewed by the police officers after which he and the police searched the adjacent area for missing items which led to the discovery of the fishing tackle box. That evidence from Mr Morton was led and admitted without objection and before the police officers had been called as witnesses.

32 It is also to be noted that the no case submission was made at a point when the defendants had already gone into evidence by adducing the testimony, (out of order for reasons of convenience for the witness) of Mr Peter Escott, the manager of the Dongara-Denison Tourist Caravan Park. There was no submission to the effect that the ruling on whether or not there was a case to answer should be based only on evidence from the prosecution witnesses, nor, in my opinion, was there any scope for such a submission. The question of whether or not there was a case to answer depended on all the evidence which had been received at that point of the case. If a defendant chooses to go into evidence to any extent before or during the course of the prosecution evidence, then the result must be that the evidence so adduced becomes part of the material which a court must act on from then on.

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33 It becomes necessary, therefore, to mention the substance of the evidence given by Mr Escott. He testified that the defendants, Laurens and Moodie, had arrived at his caravan park about three days before 17 July. He confirmed that visitors and other members of the public were freely permitted into the caravan park at all times. He confirmed that PC Glen Willers had arrived at the caravan park early on the morning of Saturday, 17 July, asking about a Toyota Hilux twin cab. Escott told Willers that there was such a vehicle at camp site number 3F and the police officer then drove up to look at that camp site and drove back. At that time there was no vehicle at camp site 3F and the police officer left. I have already mentioned that Mr Escott confirmed that he permitted police to enter the camp site whenever they wished and regarded it as useful for them to do so.

34 In his evidence-in-chief Mr Escott said that he heard a dog barking loudly in the caravan park at about midnight on the evening of Friday, 16 July 1999. He got out of bed to go and investigate and walked to the far end of the camp site about 150 metres from the manager's house, to bay 3F. There was a tent pitched there and the dog was barking loudly but there were no people in immediate attendance. A one-tonne white twin cab ute was parked nearby. After establishing that nothing appeared to be wrong, he walked back to the manager's house and on the way, but only about 30 metres inside the caravan park, he came across the defendant, Cheryl Laurens and Joshua Moodie, walking towards their camp site. They were carrying crab nets and some motor cycle helmets and seemed to be walking back from a fishing excursion. They were coming from the direction of the marina area. A few inconsequential words were exchanged and Escott told the two defendants that their dog was barking. In the course of giving evidence it emerged that Escott had previously given a statement about meeting the defendants in his caravan park that evening in which he had said that he came across them at about 11 pm. When asked about this, he said at the trial that he believed the time was closer to midnight but that he may have had a better recollection of the time when he made his earlier statement. He acknowledged that he was not wearing a watch at the time.

35 No particular reference was made to the evidence of Mr Escott in the course of the submissions dealing with the question of whether or not there was a case for the defendants to answer. By going into evidence and adducing testimony from Mr Escott, it might be thought that it had already been conceded by the defendants that there was a case to answer and that the evidence from Escott was led in anticipation of that. On this approach it was unnecessary for the learned Magistrate to entertain, or rule upon,

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the submission. However, no such point was raised before the learned Magistrate on behalf of the prosecution and the no case submission was considered and ruled upon in these unorthodox circumstances. No possible prejudice can have been caused to the defendants by allowing the no case submission to be dealt with at that point. If anything, they were advantaged by the procedure being allowed at all.

36 The first task is to ascertain the admissible evidence which could be considered in support of the prosecution case, in the light of the objection which had been taken to the evidence led from PC Willers and PC Fishwick about the results of the search for the stolen property at the defendants' camp site.

37 The details of this objection were never fully articulated and it is, therefore, not surprising that the matter was not fully examined by the learned Magistrate. It is, however, clear that neither of the police officers had obtained any search warrant to search the defendants' camp site or the Dongara-Denison Tourist Caravan Park itself. In the course of the no case submission, the prosecuting sergeant accepted that the only power to search available was the common law power of search for the police officers. Equally, it is clear that the search was conducted before the defendants were arrested and that it was the discovery of property in the vicinity of the camp site identified by Mr Morton as having been stolen which led to their arrests.

38 No close examination of the rights of occupancy or use of the camp site by the defendants was undertaken, either by counsel who had submitted that a search warrant was necessary or by the learned Magistrate. It seems unmistakably clear, however, that neither of the defendants owned or had any right of exclusive possession of any part of the Dongara-Denison Tourist Caravan Park. They were, at the most, contractual licensees who were permitted by the owner-operator to use the area at bay 3 of the caravan park to pitch a tent and store their belongings for a short-term stay. There was no suggestion that the camping bay which the defendants were using was clearly designated, or marked out, or in any way enclosed. While enclosure of land or an area of land is not necessary in order to make out a claim by the person in possession to an action for damages in trespass, the entitlement to possession is, of itself, inconsistent with a right to entry by any third person, unless that third person derives a superior right to possession from the owner. However, a mere contractual licensee, such as a person using a bay in a caravan park, is not normally regarded as having an exclusive right to possession so as to be able to maintain an action in trespass – see for example the position

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of a lodger, or a hotel guest – Allan v Liverpool Overseers (1874) LR QB 180 at 191 and 192; and Smith v Overseers of St Michael's Cambridge (1860) 3 E & E 383 at 390. Although there may be some circumstances in which a contractual licence is sufficient at law to confer rights of possession enforceable by the licensee against third parties – National Provincial Bank v Ainsworth [1965] AC 1175 and Binions v Evans [1972] Ch 359, there is nothing in this case to demonstrate that the appellants had any right of exclusive occupation of bay 3F at the camp site. Consequently, persons entering the camp site with the leave or licence of the owner, or the person entitled to possession of the camp site as a whole, such as these police officers, were entitled to examine the whole of the area including bay 3F so long as, in the process, they caused no damage or interference to the goods or chattels of the defendants.

39 A licence for the police to enter the general areas of the caravan park is to be implied in the circumstances – unless revoked by the owner or person in lawful possession, Halliday v Nevill (1984) 155 CLR 1. In this case there is the direct evidence of the manager of this caravan park, Mr Peter Escott, that the police officers had his approval to come onto the caravan park. This is of vital significance in the present case because, without it, and without any implied licence to go on the premises, they would have been acting unlawfully in going onto that property without authority. The law in this regard is well established.

40 In a case dealing with attempts by police officers to effect service of a summons on private property where the owners had ordered them off, it was held that the police officers were liable in damages for trespass – Plenty v Dillon (1991) 171 CLR 635. In that case, at pages 638 and 639 Mason CJ, Brennan and Toohey JJ said:

"Thus the issue for determination is simply whether a police officer who is charged with the duty of serving a summons is authorized, without the consent of the person in possession or entitled to possession of land and without any implied leave or licence, to go upon the land in order to serve the summons.

The starting point is the judgment of Lord Camden L.C.J. in Entick v. Carrington (1765) 19 St Tr 1029, at p 1066:


'By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing ... If he

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admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him.'

And see Great Central Railway Co. v. Bates (1921) 3 KB 578, at p 582; Morris v. Beardmore [1981] AC 446, at p 464. The principle applies to entry by persons purporting to act with the authority of the Crown as well as to entry by other persons. As Lord Denning M.R. said in Southam v. Smout [1964] 1 QB 308, at p 320, adopting a quotation from the Earl of Chatham:

'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement.' So be it - unless he has justification by law.'

And in Halliday v. Nevill (1984) 155 CLR 1 Brennan J. said (at p 10):

'The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.'

The proposition that any person who 'set(s) his foot upon my ground without my licence ... is liable to an action' in trespass is qualified by exceptions both at common law and by statute."

41 The question which next arises is whether, although permitted to be in the caravan park at bay 3F, by the leave of licence of Mr Escott on behalf of the owner, the police officers had a right to search among the private property of the defendants, including the white Hilux utility, for what were suspected to be stolen goods.

42 At common law, it has generally been regarded that a police officer has no power to search for or seize property, except pursuant to a valid warrant. However, goods may be seized without warrant if they are in possession of a person at the time of his or her arrest – Field v Sullivan

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[1923] VLR 70. Such goods must be in the possession of the arrested person, and be the subject of, or evidence of, an offence – Levine v O'Keefe [1930] VLR 70 (FCt) and Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397 per Heerey J at 405. It is also the case that, at common law, a police officer may seize goods which have allegedly been stolen if the officer can do so without force or violence – Dalton v McNaughton (1903) 29 VLR 144.

43 However, there is authority in support of wider common law powers for seizure of goods without warrant by police officers even in circumstances when no arrest is made. This view is based on the decision of Ghani v Jones [1970] 1 QB 693 where, in addition to confirming the above propositions, Lord Denning observed that seizure without warrant by police officers is permissible when they have reasonable grounds for believing that a serious offence had been committed; that the article in question is either the result of the crime, the instrument by which the crime was committed or would provide material evidence for proof of the crime and where the police officers have reasonable grounds to believe that the person in possession of the item has committed the crime or was associated with it. Ghani v Jones (supra) has been much criticised (see Laws of Australia: Criminal Investigation 11.1, point 197 and the authorities collected at note 5). It has been held that what has been considered to be an extension of the common law made by Ghani v Jones (supra) is inconsistent with Australian law - see Heerey J in Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397. But Ghani v Jones (supra) has been followed in Australia in R v Davidson (1991) 54 SASR 580; GH Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635 and Tye v Commissioner of Police (1995) 84 A Crim R 147. The topic has also recently been re-examined, to a limited extent, by the House of Lords in R (Rottman) v Commissioner of Police [2002] 2 All ER 865.

44 If it was necessary for me to choose, I would be inclined to follow the approach taken by Heerey J in Challenge Plastics Pty Ltd v Collector of Customs (supra), apply Levine v O'Keefe (supra) and so confine any recognition of a power of search and seizure, without warrant, to articles in the possession of the accused person at the time of his arrest or in the immediate vicinity which were, or were likely to provide evidence of, associations with the offence under investigation. However, it is unnecessary in the present case to make any such choice because established authority also recognises the right of a police officer, without warrant, to seize property alleged to have been stolen if this can be done without force and violence (see Dalton v McNaughton (supra)).

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45 In the present case, PC Willers and PC Fishwick were in a situation where Mr Morton positively identified items of personal property in the possession of the defendants or in the vicinity of their camp as being his own property which had recently been stolen. They were, accordingly, well within their powers on any view to seize those items because there was no suggestion of any violence or damage occurring from such action. It follows that there was no trespass or other unlawful conduct by the police officers in conducting this search and in seizing the items and, consequently, no impediment to the admissibility of the evidence which they gave in that regard.

46 Even if there had been a search or seizure of property which had not been strictly authorised, the circumstances are not such as would lead to the exclusion of evidence gained by that search or seizure in the exercise of the Court's discretion – Bunning v Cross (1978) 141 CLR 54 – because there could be no suggestion of deception, oppression or other unacceptable conduct by the investigating police officers which would lead to the exercise of a discretion to exclude such evidence as being unfair to the accused defendants – see King v The Queen [1969] 1 AC 304 PC.

47 The next step is to consider the submission that the property identified as being stolen from the Morton family was not in the possession or control of the appellants. This seems, with respect, to me to be a false issue in this case. Not only were there grounds for concluding that the items of property which were alleged to have been stolen were in the possession of the defendants but the defendant Laurens, when in company with the defendant Moodie, expressly asserted that the items pointed to by the police officers, the three jerry cans of fuel, the toolbox and all its contents, and when later discovered, the fishing tackle box hidden in the bush, were their property and that the fishing tackle box had been hidden by them in order to prevent it from being stolen. There is no scope for any submission, in these circumstances, that these items of property only happened to be in the vicinity by a coincidence or as the result of being left there by some other unknown persons.

48 It was further submitted that for the property to be in the possession of the defendants in the relevant sense, it had to be under their control and there was a reasonable inference open that the property could have been left there by some unidentified person who had gained access readily to this unfenced area of the caravan park. As I have already mentioned, that suggestion is inconsistent with the evidence of the defendants' conduct when questioned. Furthermore, the items of property discovered by

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Mr Morton and the police officers were found so proximate to the place where the defendants were camped that they should be regarded as being within their possession – see for example Williams v Douglas (1949) 78 CLR 521.

49 The next submissions relating to the application, significance and scope of the doctrine of "recent possession" can all be taken together. The doctrine of recent possession which, in reality, is no more than an illustration of inferential reasoning, has been described in Trainer v The King (1906) 4 CLR 126 and in R v Schama & Abramovich (1914) 11 Cr App R 45. It means no more than that the tribunal of fact, whether jury, judge alone or magistrate, may attach weight to evidence that the accused person was found in possession of recently stolen property. If this occurs, the tribunal of fact may, although it need not, convict the accused person of stealing or receiving the property. If the accused person gives any explanation of how he or she came to have the property, that must be taken into account. Then, on the whole of the evidence, the tribunal of fact must decide whether or not there is any reasonable doubt whether the prosecution has proved the case. If the tribunal is in doubt over whether or not the evidence supports a conclusion of stealing on the one hand or receiving stolen property on the other, the proper course is to convict for the offence which is less serious in the circumstances. However, I am satisfied that the doctrine of recent possession, as far as it applies, may in combination with other evidence lead to a conviction either of stealing or of receiving.

50 These explanations about the significance and effect of evidence of recent possession to support a conviction for either stealing or receiving have been repeatedly approved. A recent example of such approval is found in the judgment of Brennan J in Gilson v The Queen (1991) 172 CLR 353 at 367 - 368. His Honour went on to say:

"Although it is clear enough that evidence of recent possession of stolen goods is sufficient to support a conviction for either larceny or receiving, the reference by Griffith CJ [in Trainer v The King (1906) 4 CLR 126 at 132 - 133] to a 'presumption' may be taken to suggest that some evidential onus passes to the accused and that, prima facie, that onus is to rebut a presumption of larceny. To understand what his Honour said in that way is to mistake the true effect of evidence of recent possession. It is merely circumstantial evidence which is capable of supporting an inference of either larceny or receiving according to all the circumstances of the case but it raises no

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presumption of guilt and the jury are bound to acquit if, on the whole of the evidence, they entertain a reasonable doubt."

51 Accordingly, it is now possible to consider the state of the evidence before the learned Magistrate when he was called upon to rule on the appellant's submission of no case to answer. Plainly, there had been an unauthorised taking of items of property from the Mortons' trailer parked outside the James' house at the Dongara-Denison Caravan Park. This had occurred some time between 9.00 pm and 11.37 pm on Friday, 16 July 1999. Investigations carried out by Mr Gavin Morton and by Mr Ian James immediately after the discovery of the disturbance, and before the arrival of the police at 11.37 pm, revealed suspicious activity by two persons loading and driving a white traytop four-wheel drive diesel utility outside the fence of the caravan park. This vehicle was also seen by Mrs Karen Morton driving without headlights as she was waiting for the police to arrive. The two male witnesses who saw the vehicle identified it as a white traytop utility, with a diesel motor and as a Hilux utility. That evening, shortly after the loss of the property was detected, a list was made of the property missing and this was given to the police. The items listed were three green jerry cans of diesel fuel, a fishing tackle box and a tool-box containing sundry tools.

52 The next morning, at about 9.30 am, that is, only some 10 hours or so after the episode, a vehicle fitting the description of that seen by Mr and Mrs Morton and Mr James, was found by Mr Gavin Morton parked at bay 3 at the Dongara-Denison Tourist Caravan Park and its existence reported to the police. A police vehicle check identified the owner as being some company which was never identified in the evidence. Two subsequent visits to the second caravan park by PC Willers were unsuccessful in finding the owners or occupants of the vehicle or the vehicle itself. Some time shortly before 3 pm on Saturday, 17 July Mr Gavin Morton again visited the Dongara-Denison Tourist Caravan Park. This time the vehicle was missing but an item at a tent site attracted his attention. He got out of the vehicle and after a short investigation found jerry cans of diesel fuel and a tool-box which he identified as part of his missing property. The tool-box contained a number of tools; some, but not all of which, he identified as his.

53 The police were again called and, after noting Mr Morton's identification of the property, left him with a police radio alone nearby to keep the camp site under surveillance while they carried out a search in the town site for the white utility, the registration number of which was, by then, known. A short while later a white utility, being the vehicle

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identified by Mr Morton at bay 3 of the second caravan park earlier that morning, returned to that caravan park. The only occupants were the two defendants. On being questioned about allegations that the jerry cans and tool-box found in the vicinity of their camp site had recently been stolen, one of them asserted, in the presence of the other, that all the property in the vicinity, including the jerry cans and the tool-box, were theirs. A short search of the locality by the police then revealed a fishing tackle box in a nearby bush. Again one defendant said, in the presence of the other, that it was their property. The other defendant said that the fishing tackle box contained a knife which belonged to him. Mr Gavin Morton positively identified the fishing tackle box, the tool-box and certain of the tools, and the three jerry cans of fuel as belonging to him. No further explanation was offered by either defendant.

54 In these circumstances it was open to conclude, but not necessary to conclude, that the defendants had made false statements about their ownership of the three items of property claimed by Mr Morton. This, combined with the short time which had elapsed between the alleged theft the evening before, and the discovery of these items, and the fact that the two defendants alone were driving and using a white four-wheel drive Hilux traytop utility, which matched the general description of the vehicle being used in suspicious circumstances immediately after the loss of property was first discovered, provided evidence which, in my opinion, undoubtedly raised a prima facie case against both defendants. That is, it raised a prima facie case in the sense that it was evidence upon which a finding, beyond reasonable doubt, that both had stolen the property could be made. It was for the tribunal a fact ultimately to decide whether or not such a finding should be made, but I have no doubt that the submission of no case to answer was, in these circumstances, correctly dismissed.

55 The trial against the appellants then continued and two further witnesses were called for the appellants. These were Mr Neil William Strickland, the employer of Chelsea Laurens, and Mrs Coral Jeanette Laurens, her mother. Neither appellant gave evidence. Mr Strickland gave evidence that Miss Laurens had been working very hard and that he advised her to go away for two weeks for a holiday and to use his beach house at Peaceful Bay. He offered her the company utility, his boat and motor, together with fuel, tools and whatever equipment she wished. He said that she took two jerry cans of fuel from Perth and some fishing lines and gear from the holiday house at Peaceful Bay. He was asked whether he was able to identify the jerry cans which had been found at bay 3 of the camp site and which Mr Morton claimed was his property. He was unable to do so positively, admitting that one jerry can is much like another.

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Efforts by him to identify tools as his own property which were found at the camp site and claimed by Mr Morton were similarly inconclusive. He also explained that white Hilux Toyota utilities are vehicles commonly encountered and that when he was in Dongara the day before the trial, he had seen about 11 or 12 such vehicles within the space of 30 minutes.

56 Mrs Laurens gave evidence that when her daughter and Joshua Moodie departed on their trip, she helped them load the vehicle and that she saw five jerry cans of fuel and one drum being loaded. She was asked to inspect the jerry cans which were claimed by Mr Morton. She claimed that they were her property and that she could identify them as such from their general colour and appearance, including the remnants of a "Made in China" sticker on one of them. She also identified the tackle box as being one of the items which was loaded on the vehicle before her daughter and Moodie set out and said that it was Moodie's property. She was cross-examined by the prosecuting officer on the basis that it was not possible for her to make positive identifications of such general items of property, but she maintained that she was quite certain that the fishing box belonged to Joshua Moodie. That was the end of the evidence for the defendants and the evidence at the trial.

57 It is to be remembered, of course, that at the outset Mr Escott had given evidence that he had seen Miss Chelsea Laurens and Joshua Moodie walking back to their camp site, carrying crabbing nets and motorbike helmets, apparently returning from a fishing excursion, some time between 11 pm and midnight on 16 July. He had been returning from his investigation of the dog barking at their camp site and had said that the white four-wheel drive utility had been parked at the camp site at the time he found the dog barking. He also said that, as far as he was aware, the white utility had not left the caravan park that evening.

58 The significance of this evidence of Mr Escott, depending, of course, upon the reliability of the timing, is that the two appellants were seen by an independent witness at some time which was either not long before or not long after the interference with the Morton vehicle at the other caravan park some distance away. There was no evidence before the Court about how far it was from one caravan park to the other or how long it would take to drive or walk from one to the other, but no doubt the trial progressed on the basis that all concerned were aware that Dongara is only a small settlement and all facilities were within easy and convenient reach.

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59 Therefore, at the end of the case the learned Magistrate was faced with the position where there was evidence which, if it satisfied him as to its credibility and reliability, would support a finding of stealing against both appellants. On the other hand, there was no admission by the defendants, the evidence which was led, and their explanation when confronted by the police, was that all the property in question belonged to them or was lawfully in their possession, and that they had been seen at their own caravan park, away from the scene of the crime, at about the time that the offence must have been committed. On the defendants' case, the fact that they were driving and using a white Hilux Toyota tray-back utility was merely a matter of coincidence as that was a vehicle commonly found in coastal fishing communities such as Dongara.

60 The learned Magistrate was clearly aware that any finding of guilt against either defendant could only be established beyond reasonable doubt, and that there was no onus upon either defendant to give evidence. It was a case which largely, but not entirely, depended upon the learned Magistrate's conclusions about the credibility of the witnesses. Perhaps the most significant issue of fact was the determination of the ownership of the property alleged to have been stolen but which was claimed by the defendants to be lawfully in their possession. However, the set of wrenches which had been engraved with the letters JUN, were positively identified by Mr Gavin Morton and by his father, Mr Barry Morton, and this evidence provided a distinctive method of identification. There was also a concession on behalf of the defendants in the course of the cross-examination of Mr Gavin Morton that he owned the tools contained in the Reflex box (transcript page 66).

61 Once it is established, as the learned Magistrate found it to have been established, that at least some of the items claimed by the Mortons were found at the defendants' camp site on the day following their disappearance, the case against the defendants becomes far stronger. First, the assertions to the police at the time they were interviewed that all the property belonged to the defendants are revealed as being, at least in part, false. The significance of such a false answer must then be assessed in the context of other available evidence. That evidence suggested that two persons, driving a white Hilux traytop utility, were seen acting suspiciously at the scene of the crime a short time after it had been committed. Some of the stolen property was then found the next day in close proximity to the camp site of two people travelling by themselves, who were driving a Toyota Hilux utility which matched the description of the vehicle seen the night before. When confronted with an accusation

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that they had stolen property in their possession, they then claimed, as it turned out falsely, that the property in question was all theirs.

62 It was also submitted that the convictions of the defendants involved an error such as was revealed by the High Court in Prasad v The Queen (1994) 68 ALJR 194 in that the evidence did not allow an inference to be drawn that both defendants had been involved in the stealing and both were the persons seen in the suspicious white utility outside the first caravan site shortly after the offence. In my opinion, the decision in Prasad (supra) is entirely consistent with the conviction of these two appellants and no error of the kind which occurred in that case has been revealed in this trial. In Prasad, the High Court pointed out that a finding that the accused had been present at the scene of a murder could not be based solely on the evidence of three boys who saw unidentified men at the time of the crime in the vicinity of the place where the body was found and that the jury should have been directed to this effect. In that case there was, erroneously, an implication in the address to the jury by the presiding Judge that the evidence of the boys alone would support such a finding. There can be no suggestion, in the present case, that the evidence of Mr Gavin Morton, Mr Ian James or Mrs Karen Morton, of what was seen of the unlit vehicle and its occupants on the evening of 16 July 1999 could of itself directly implicate either of the defendants. Rather, it was the discovery of property claimed to have been stolen at the defendants' camp site less than 24 hours later, coupled with a false claim of ownership which gave rise to a possible inference against the appellants. The fact that they were two people travelling by themselves in a vehicle which matched the description of the one seen in suspicious circumstances near the place of the offences shortly afterwards is circumstantial evidence which the learned Magistrate was entitled to evaluate. By itself it would almost certainly have been insufficient to support any conviction but, in combination with the possession of the recently stolen property, it assumes a significance which, in combination with all the other evidence, the learned Magistrate was entitled to take into account.

63 In my opinion, the learned Magistrate was justified in convicting the appellants of the charges of stealing on the evidence which was before him at this trial. The question of whether or not he was persuaded beyond reasonable doubt of their guilt was a matter for him on the evidence adduced. For reasons which I have given I am satisfied that the evidence adduced was capable of sustaining a finding of guilt of the offences charged. There is nothing to suggest that the learned Magistrate took any mistaken or unsupportable view of the evidence before him or acted upon any wrong principle of law. It follows that the appellants were tried on

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admissible evidence and that there has been no error or omission in the process by which the learned Magistrate reached his conclusion that they should be convicted. Consequently, no error of law or fact having been established, these appeals must be dismissed.