Maslin v Searle - [2010] WASC 146

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MASLIN -v- SEARLE [2010] WASC 146

CORAM: SIMMONDS J

HEARD: 4 FEBRUARY 2010

DELIVERED : 18 JUNE 2010

FILE NO/S: SJA 1081 of 2009

BETWEEN: MATTHEW RONALD MASLIN
Appellant
AND
DEBBIANNE SEARLE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT JOONDALUP
Coram  :MAGISTRATE R K BLACK
File No  :JO 7842 of 2008, JO 7843 of 2008

Catchwords:

Criminal law - Charges of burglary and stealing - Unexplained possession of goods recently stolen - Inferences - Whether it was not reasonably open to magistrate to have found only rational or reasonable inference open to him was that the offender was guilty - Whether magistrate could not reasonably have concluded otherwise than that rational or reasonable inference was open that the appellant was guilty of receiving

Legislation:

Criminal Code (WA), s 378, s 401, s 414
Criminal Investigation Act 2006 (WA), s 118
Criminal Procedure Act 2004 (WA), sch 1, cl 11

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms M M In De Braekt
Respondent: Ms J F Boots

Solicitors:

Appellant: Megan in de Braekt
Respondent: Director of Public Prosecutions (WA)

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

Bruce v The Queen [1987] HCA 40; (1987) 74 ALR 219
Carle v The Queen [2002] WASCA 71
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Gilson v The Queen [1991] HCA 24; (1991) 172 CLR 353
Laurens v Willers [2002] WASCA 183
R v Beljajev [1984] VR 657
R v Langmead (1864) Le & Ca 427; (1864) 9 Cox CC 464; (1864) 169 ER 1459
R v Wanganeen (1988) 50 SASR 433
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Tasovac v Lawson [2009] WASC 394
Trainer v The King [1906] HCA 50; (1906) 4 CLR 126

SIMMONDS J:

Introduction

This is an appeal by leave against convictions on charges of burglary and stealing. The convictions followed a trial before a magistrate. The accused elected to adduce no evidence.
The appeal concerns the appropriate use of circumstantial evidence, principally the unexplained possession of recently stolen property.

Background

On 20 May 2008 Mr Adrej Mijatovic suffered a burglary and theft at his home in Balcatta. The appellant was charged with two offences in relation to those incidents.
One charge was that on that date without Mr Mijatovic's consent the appellant was in his dwelling and committed an offence there, namely, the stealing of property valued at $900, against Criminal Code (WA) (the Code) s 401(2)(b) (the burglary offence).
The other charge was that on that same date the appellant stole three gold chains, ten ear rings, one folding metal pocket knife and 6,150 lire cash to the value of $900 the property of Mr Mijatovic, against Code s 378 (the stealing offence).
It was common ground before me that the offence referred to in the charge for the burglary offence was the stealing offence. It was also common ground before me that, as testified to by Mr Mijatovic and accepted at trial, in the burglary Mr Mijatovic also suffered the loss of a mobile phone.
On 10 July 2009 in the Magistrates Court at Joondalup Magistrate Black presided at the trial of the two charges.
The prosecution called three witnesses, Mr Mijatovic and two police officers, the respondent, First Class Constable Debbie‑Anne Searle and Senior Constable Roger John Hogben.
On the same day, 10 July 2009, following closing addresses from the prosecution and counsel for the appellant (who was also counsel for the appellant before me), the learned magistrate delivered reasons for his decision to convict the appellant on both charges. The learned magistrate made findings as to the circumstances as follows. There was no suggestion before me that there was any significant error in those finding.
At about 7.00 am on 20 May 2008 Mr Mijatovic had left his home to go to work. At 1.00 pm that day, when he returned home, he found the front door ajar and the laundry window open. He had left his home with the doors and windows locked. He found various items of his property missing, being the items specified in the charge for the stealing offence, and also his mobile phone. He also found in one room various items of his packed in shopping bags.
Shortly after 1.00 pm on the same day, 20 May 2008, police officers Constables Searle and Hogben were at premises occupied by medical practitioners (the medical premises). At about 1.10 pm outside the medical premises Constable Searle observed the appellant, whom she recognised, on the opposite side of the road, running past. She called his first name, and he raised his hand, continuing to run.
The learned magistrate referred to the medical premises as 50 m from Mr Mijatovic's home or in the vicinity of 200 ‑ 250 m 'through streets' (10 July 2009, ts 35). However, the only evidence on the relative location of the medical premises was that of Constable Searle, who testified that Mr Mijatovic's home was approximately 50 m 'as the crow flies' or '[n]o more than 200 to 250 metres' by his 'quickest route ... from where I saw the accused', which was about '15 to 20 metres' away from where she stood (10 July 2009, ts 12 ‑ 13). However, in my view correctly, there was no significance attached to this difference by either party before me.
Constable Searle then had a conversation with Constable Hogben, and, after a search in the general area first by Constable Hogben and then by the two police officers, they located the appellant, at a car park at a shopping centre close by the medical premises. The appellant was seen crouched down behind a motor vehicle in the car park. Constable Hogben approached the appellant, who ran off. Constable Hogben caught the appellant, of whom he at no point lost sight, in the drive way of units nearby. Shortly thereafter the appellant was arrested and cautioned.
I note that there was unchallenged evidence, not referred to by the learned magistrate, from Constable Searle, that from the time she first saw the appellant running past the medical premises to the time of the arrest between five and seven minutes had elapsed.
Following the arrest and caution, the items listed in the charge for the stealing offence were located in a pocket of his jacket, except for the metal folding knife and some Italian coins, which were found at his feet. It was not in contest before me that all of these items should be treated for the purposes of the principles I will shortly review to have been in the appellant's possession at the time they were so located.
The learned magistrate noted that there was no direct evidence placing the appellant at the scene of the burglary, 'no eyewitness who saw him there or in the vicinity' (10 July 2009, ts 36) and no evidence as to the exact time on 20 May 2008 between 7.00 am when Mr Mijatovic left for work and 1.00 pm when he returned when the burglary took place. I understood the learned magistrate to have thereby laid emphasis on the fact there was no direct evidence of the appellant's presence at the scene or its immediate vicinity between those times.
After referring to submissions from the prosecutor and counsel for the defence, the learned magistrate stated that (10 July 2009, ts 36 - 37):
In my view, given the circumstances that I have outlined, the undisputed evidence that I have outlined, the only reasonable, rational inference that can be drawn on the evidence that is before the court is that it was the accused who entered the property at 9 Broughton Street, Balcatta, and it is the accused who removed from those premises the various items of property that were later found to be in his possession, a short time after Mr Mijatovic had returned home.
They are in my view, as I've said, the only reasonable, rational inferences that can be drawn from the evidence before the court today. Of course Mr Maslin did not give evidence, and that of course is his right. Nothing can be drawn from that, from his failure to give evidence; but, as I say, on the basis of the evidence before the court in my view for the reasons expressed the prosecution have proved each of the charges to the necessary degree, and that is beyond reasonable doubt.
Later on 10 July 2009 the learned magistrate sentenced the appellant. For the burglary offence, he sentenced the appellant to a term of immediate imprisonment of 15 months, backdated to 18 May 2009, without eligibility for parole. For the stealing offence he sentenced the appellant to a fine of $100.

This appeal

On 4 January 2010 Jenkins J granted the appellant leave to appeal against these convictions. The grounds of appeal on which leave was granted were taken before me to be the following. Although they were not as stated in the appeal notice dated 10 July 2009, they were apparently put to her Honour as expressed in the appellant's written outline of submissions dated 7 October 2009, and were those addressed in submissions by both counsel before me.
(1)The learned magistrate erred in law in that inferences consistent with guilt were not the only reasonable inferences available.
(2)The learned magistrate erred in law in that the charges were not proven beyond a reasonable doubt.
I should note the following about these grounds.
Firstly, there is no doubt the grounds were interrelated. The parties addressed them together, as I will.
Secondly, it appeared to be common ground that the test to apply to the grounds was whether or not it was reasonably open to the learned magistrate to conclude that the charges for the burglary offence and for the stealing offence had been proved beyond reasonable doubt, on the basis that the only rational or reasonable inference open to him was that the offender was guilty of those offences. That basis is of course the 'customary direction' for a case where the finder of fact in a criminal case may rely upon circumstantial evidence: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 578 (Dawson J, Toohey and Gaudron JJ agreeing).
In any event, I consider that the test of whether it was reasonably open to the learned magistrate so to conclude is the proper test to apply. I consider it is not the proper test to apply whether or not the learned magistrate had to so conclude. See Laurens v Willers [2002] WASCA 183 [49] ‑ [50] and [63] (E M Heenan J). I set out those paragraphs below.
I turn then to the grounds of appeal.

The applicable principles

It was common ground that at the heart of this appeal was the question of the proper approach for a finder of fact to take to a prosecution case which depended to a significant degree upon the possession of recently stolen property.
It was not in contest, before the learned magistrate or before me, that the prosecution had proved beyond a reasonable doubt that the burglary offence and the stealing offence had been committed by someone. The only question remaining was whether or not it had been proved beyond a reasonable doubt that the appellant was the offender.
I consider it was common ground that a useful statement of the applicable principles for such a case is to be found in Laurens [49] ‑ [50], read with [63], to which I have already referred. Laurens was an appeal against convictions on charges against two accused of stealing diesel fuel, fuel containers, fishing equipment and a box containing assorted tools. One of the grounds of appeal was that the learned magistrate in that case had erred in finding 'the stolen items' were found in the 'actual or constructive "possession'' of the applicant 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' ([3]).
In Laurens E M Heenan J said this at [49] ‑ [50] as to the 'doctrine of recent possession', referring to, among other authorities, Trainer v The King [1906] HCA 50; (1906) 4 CLR 126 and Gilson v The Queen [1991] HCA 24; (1991) 172 CLR 353:
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 ... 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.
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 ... 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 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 presumption of guilt and the jury are bound to acquit if, on the whole of the evidence, they entertain a reasonable doubt.'
I also note his Honour's conclusion, at [63] (part):
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 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. ...
The quotation in Laurens [50] from Brennan J's judgment in Gilson (367 ‑ 368) immediately follows Brennan J's reproduction at (367) of the following often‑quoted passage from Griffith CJ's judgment in Trainer (132 ‑ 133), which reads as follows:
In any indictment for larceny you must prove first of all that the property has been stolen, and you must then prove that the person who stole it was the prisoner, or that it was stolen by some other person, and received by the prisoner knowing it to have been stolen. It is a well known rule that recent possession of stolen property is evidence, either that the person in possession of it stole the property, or received it knowing it to have been stolen, according to the circumstances of the case. Prima facie, the presumption is that he stole it himself, but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it, knowing that someone else had stolen it. This is only an illustration of the rule as to circumstantial evidence.
In this case there was evidence that when Constable Hogben removed from the appellant's jacket items among those listed in the charge for the stealing offence the appellant said the items belonged to his brother. It was accepted by counsel for the appellant, before the learned magistrate and before me, that that statement was false.
The counsel for the appellant had objected to this evidence being admitted, apparently on the basis it was not admissible because of Criminal Investigation Act 2006 (WA) s 118(3). The learned magistrate had dismissed the objection, and no exception was to be taken to that dismissal before me.
However, the learned magistrate made no reference to the appellant's statement in his reasons, and it appears to have been common ground before me that the learned magistrate had correctly taken the appellant as having provided no explanation of his possession for the court to take into account.
It further appeared to be common ground before me that the learned magistrate should be taken to have approached the case on the basis there was an opportunity to provide an explanation for the appellant's possession and no reasonable explanation was provided. It was not to be taken that the learned magistrate proceeded on the basis that a false explanation had been provided. The provision of an explanation shown to be false is capable of being a further circumstance relevant to drawing an inference of dishonest possession: see R v Wanganeen (1988) 50 SASR 433, 436 (King CJ; Cox J agreeing); however, both parties before me appeared to take it that the learned magistrate could not and did not so proceed in this case.
I consider that for these reasons this case was one to which the often quoted passage in the joint judgment in Bruce v The Queen [1987] HCA 40; (1987) 74 ALR 219, 219 might possibly apply:
Where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused. Such an inference will be drawn from the unexplained fact of possession of such property and not from any admission of guilt arising from the failure to proffer an explanation. It is the possession of recently stolen property in the absence of explanation or of explanatory circumstances, which enables the inference to be drawn. Thus the absence of any reasonable explanation must not itself be explicable in a manner consistent with innocence.
Although no reference to Bruce is made in Gilson, there appears to be no reason to consider that this passage does not state the law. Indeed there is reason so to believe, from the generally approving reference in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in Gilson (359) to R v Langmead (1864) Le & Ca 427; (1864) 9 Cox CC 464; (1864) 169 ER 1459, 1464 (Blackburn J). That passage as quoted in Gilson 359 reads as follows:
When it has been shewn that property has been stolen, and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to the circumstances. If he had been seen near the place where the property was kept before it was stolen, they may fairly suppose that he was the thief. If other circumstances shew that it is more probable that he was not the thief, the presumption would be that he was the receiver. The jury should not convict the prisoner of receiving, unless they are satisfied that he is not the actual thief.

As will be seen below, there was a significant qualification in Gilson to that approval of Langmead. However, that qualification does not affect the present point.
The appellant's case before me centred on whether in this case in all the circumstances the facts would justify a finding beyond a reasonable doubt of the appellant's guilt of the offences with which he was charged in accordance with these principles, properly understood.
The appellant's case rested in particular on the circumstances the subject of the following submissions.

The application of the principles given advances in forensic evidence

One submission of counsel for the appellant was that the principles had been enunciated at a time when techniques of forensic evidence gathering and analysis were less advanced than today. The age of the most recent High Court authority cited to me by either party, Gilson, was emphasised; and reference was particularly made to DNA evidence. Counsel for the appellant put to me that the courts should now approach the drawing of inferences of guilt in accordance with those principles with greater caution than previously in cases where there was no such forensic evidence linking the accused to the offending, such as a DNA sample from the scene for which a match with a sample of the accused's DNA was made.
However, no supporting authority was cited to me, and I could find no support in the most recent decisions on these principles cited to me, Laurens and Tasovac v Lawson [2009] WASC 394 (Hall J). Nor does the submission commend itself to me. The principles were enunciated in cases in which, so far as appears, there was no forensic evidence of the kind possible at the time placing the accused at the scene. There is no suggestion in those cases that the application of the principles was affected by whether there was an explanation for the lack of any such forensic evidence, such as fingerprints. Nor is there any suggestion in those cases that the courts should take into account advances in such forensic evidence.

The recency of the offences

A further submission for the appellant was that the appellant's possession was not shown to be very close in time to the earliest time at which the burglary offence and the stealing offence could have been committed.
It was not submitted, as I understood it, that the items stolen found in the appellant's possession were not 'recently stolen'. In any event, on the authorities on possession of such property cited to me, the contrary would in my view be difficult to sustain, even allowing for matters that need to be taken into account which I will shortly reach.
Rather, as I understood it the submission was that in weighing the evidence in this case, the learned magistrate should have taken account of the failure of the prosecution to establish that the items were stolen at the end of the period of Mr Mijatovic's absence from his home. The fact of the shopping bags he found packed with other items, pressed on the learned magistrate in the prosecutor's closing address, was insufficient to establish that matter, as such a circumstance in itself was too ambiguous. Given the nature and value of the items, and the place where they were found in the appellant's possession, this failure meant the inference the appellant received stolen goods, rather than himself being guilty of burglary and stealing them, was reasonably open. As I will explain below, this would mean that there was a reasonable or rational inference open consistent with the appellant's innocence of the offences with which he had been charged: he had not been charged with receiving stolen goods (see Code s 414 for that offence).
The items stolen found in the appellant's possession may be accepted to have been of a kind that could be readily disposed of rather than specialist goods, such as the horse bridles in Tasovac, and were also highly portable. Further, as counsel for the appellant pointed out to me, although not to the learned magistrate, the appellant was found with the items near a shopping centre, and thus in a place where disposal of such items might be encountered.
The authorities establish that recency falls to be assessed with the nature of the stolen property, the expectation they will be retained or passed on and all the circumstances of the case. One such circumstance, it seems clear, would be the opportunity to pass the property on: see R v Beljajev [1984] VR 657, 663 (Starke J), quoted with approval in Carle v The Queen [2002] WASCA 71 [43] (Wallwork J); see also [90] (Owen J).
However, in considering all the circumstances of the case, it seems to me the learned magistrate was able to take into account as a relevant circumstance, one on which indeed he made a specific finding, the shopping bags of goods Mr Mijatovic found. This in my view was matter to be weighed, with the ambiguity pointed to by counsel for the appellant and with other relevant circumstances, in determining the opportunities for the thief to pass on the items stolen. It seems to me that the process of inferential reasoning described in Shepherd (580) (Dawson, Toohey and Gaudron JJ agreeing), as that to be followed in criminal cases where the prosecution placed particular reliance on circumstantial evidence, called for the learned magistrate so to approach the matter. That process is described in Shepherd (580) by reference to Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 as follows:
In Chamberlain Gibbs CJ and Mason J [at 535] accept that evidence may have a cumulative effect and point out that it is the duty of the jury to consider all the facts together at the conclusion of the case. They say:
'At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence.'
Gibbs CJ and Mason J apply the same principle to circumstantial evidence, saying that 'in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it'. They continue [at 536]:
'It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference.'
In my view of the learned magistrate's reasons there is no indication that he did not engage in the process of inferential reasoning described, nor that he failed properly to do so in relation to the present circumstance.

Not all of the items found missing found in the appellant's possession

The appellant submitted that the learned magistrate needed to take account of the fact that not all of the items Mr Mijatovic found to be missing were found in the appellant's possession. Doing so would have led him, with his consideration of the other circumstances of the case, to find as a reasonable inference open on the facts that the appellant had received the items found in his possession rather than having committed the burglary and the stealing of them.
Consistently with the process of inferential reasoning I have described, it seems to me the learned magistrate ought to have taken the fact referred to as tending so to lead him. However, it also seems to me that the fact that all but one item, and that a mobile phone, were so found also ought to have been borne in mind in weighing that circumstance, and as capable of leading away from that inference.
In my view of the learned magistrate's reasons there is no indication he did not so proceed, consistently with the process of inferential reasoning I have described.
Although it is not clear the contrary was put to me, I should add that the authorities give no indication that all of the recently stolen property must have been in the accused's possession for the present principles to be capable of application. Indeed there is indication to the contrary in Laurens [53], where it appears the evidence was that most, but not all, of the property recently stolen was found in the possession of the accused.

The appellant's proximity to the home of Mr Mijatovic

Counsel for the appellant submitted that the relative lack of proximity of the appellant to the home of Mr Mijatovic at the time the appellant was first seen by Constable Searle, and, I took it, at the time he was found in the possession of items stolen from that home, was a matter of which the learned magistrate needed to take account. Doing so would have led him, with his consideration of the other circumstances of the case, to find as a reasonable inference open on the facts that the appellant had received the items found rather than having committed the burglary and the stealing of them.
Again, consistently with the process of inferential reasoning I have described, it seems to me the learned magistrate ought to have taken the degrees of proximity of the appellant to that home at the times indicated. Indeed, there is support for this in the passage from the judgment of Blackburn J in Langmead quoted in Gilson 359, the passage set out above, particularly the following:
If he had been seen near the place where the property was kept before it was stolen, they may fairly suppose that he was the thief.
I should add that I do not take from this part of the passage that Blackburn J was indicating that the only reasonable inference open in those circumstances was that the accused was the thief. However, I consider that the degrees of proximity in conjunction with other relevant circumstances of the case, such as the times of the proximity, may justify the fact‑finder in concluding, or indeed require the fact‑finder to conclude, that such was the only inference reasonably open. That approach appears from a passage in the judgment of Pollock CB in Langmead as it appears in another report of the case, (1864) 9 Cox CC 464, 467 ‑ 468, as reproduced in the judgment of McHugh J in Gilson (376) as follows:
No doubt, upon the evidence, no other person than the prisoner appears distinctly to enter into the transaction, and all that appears is that the prisoner was found very recently in possession of the stolen sheep. That prima facie is evidence of stealing rather than of receiving; but in no case can it be said to be exclusively such unless the party is found so recently in possession of stolen property, and under such circumstances, as to exclude the probability of receiving ‑ as where a party is stopped coming out of a room with a gold watch which has been taken from the room; but if he has left the room so long as to render it probable that he may have received it from some one else, then it may be evidence either of stealing or of feloniously receiving. In the present case, I think that the evidence of receiving was more cogent than that of stealing.
Again, there is, in the findings of the learned magistrate, nothing to indicate he did not properly take account of such matters. Indeed there are indications he did properly take them into account, in his descriptions of the relative positions of the medical premises outside which the appellant was first seen by Constable Searle, of the shopping centre in the car park outside which the appellant was observed after the search for him, and of the drive way of the units where the items stolen were found in the appellant's possession. In this regard I note that counsel for the appellant in her closing had addressed the learned magistrate on the matters of the relative proximity of the appellant to Mr Mijatovic's home when the appellant was first seen.

The reasons why the appellant was where he was

Counsel for the appellant submitted the learned magistrate needed to take account of the possibility that the appellant was where he was first seen for reasons to do with a medical appointment of the appellant, or of a person apprehended at the medical premises shortly before Constable Searle first saw the appellant; or that the appellant was visiting friends or relatives in the vicinity.
I note there was evidence that the appellant was seen together with that person so apprehended after they were both arrested; however, the learned magistrate upheld an objection of counsel for the appellant to evidence from Constable Searle that the two were partners in a de facto relationship. Further, there was no evidence that the appellant or that person had such an appointment, although Constable Searle testified she had inquired into the matter, stating that she could not recall the result of the inquiry. There was also no evidence that the appellant had relatives or friends in the area.
Counsel for the appellant had put to the learned magistrate in closing the possibility of the appellant visiting relatives or friends in the area, although she had not put the possibility of the appellant or the other person having a medical appointment. The learned magistrate in his reasons appeared to refer to and deal with the former matter (among others, as I will indicate) as follows (10 July 2009, ts 36):
A number of propositions were put as to what other inferences may be available on the evidence. With respect, there is no evidence whatsoever in relation to the other inferences that are said it is able to draw.
This appears to me to be an unexceptionable response. The inference counsel for the appellant sought to have the learned magistrate recognise as reasonable was one in my view that was unavailable on the evidence before him. This in my view was also the case for the inference as to a medical appointment.

The conduct of the appellant in running including running away

Counsel for the appellant submitted that the fact the appellant was first seen running past the medical premises and later appeared to run away from the police offered no assistance with finding the only reasonable inference open on the circumstances was the appellant's guilt of the offences charged. This was on the basis he had been arrested on other matters than those charged, matters which may have led him so to conduct himself.
This was a submission not put to the learned magistrate in the closing of counsel for the appellant. However, she did put to the learned magistrate that the appellant may have so conducted himself because the person apprehended in the medical premises shortly before he was initially seen may have 'off‑loaded' to him items from the burglary and stealing. When this was put to the learned magistrate he asked counsel 'But inferences can only be drawn from evidence, can't they?' (10 July 2009, ts 32). Counsel for the appellant responded to this in the affirmative, before adding that there was evidence that that person had been apprehended only 10 minutes beforehand. However, I consider that without evidence specifying the matter for which she had been apprehended other than the unchallenged evidence of Constable Hogben that she had been 'arrested re other matters' (10 July 2009, ts 25) there was insufficient evidence from which to draw the inference contended for. Indeed, it appears to me the learned magistrate meant to deal with this inference in his reference to inferences that 'can only be drawn on the basis of direct, expressed evidence' (10 July 2009, ts 36) in the passage previously quoted.
However, the other inference to explain the appellant's conduct, resting on his arrest on other charges, would not have been so vulnerable were there the evidence of the matter in respect of which he had been arrested referred to by counsel for the appellant. In my view, there was no such evidence properly before the learned magistrate, as I now explain.
It is notable that the learned magistrate did not refer in his reasons to any such evidence, but simply to the appellant 'having been arrested and having been cautioned' (10 July 2009, ts 35 ‑ 36). This is consistent with his approach to the evidence of Constable Hogben, the arresting officer, that the appellant had been arrested for '[s]ome other offence et cetera' (10 July 2009, ts 25). Counsel for the appellant had taken objection to the prosecutor's question 'So what was he arrested for?' before it was answered, on relevance grounds (10 July 2009, ts 25), to which the prosecutor responded by apologising, indicating he had thought the reason for the arrest 'was in relation to this, sir', after which the prosecutor asked the witness 'He was arrested for something else?' (10 July 2009, ts 25), producing the evidence from Constable Hogben I quoted. However, the learned magistrate appeared to accept the evidence only to a limited extent, as indicated by his response to that evidence, 'Just don't worry about it. He was arrested.' (10 July 2009, ts 25).
In those circumstances it seems to me that the fact of the conduct of the appellant in the present respects was capable of being one of a 'combination of facts, none of which viewed alone would support the inference', from which the finder of fact could draw the inference of guilt of the offences charged: see Shepherd (581) (Dawson J). However, the weight to be assigned for this purpose would undoubtedly have been greater had the circumstances included that the arrest and caution been for those offences.
I should add that it was not made apparent to me that the learned magistrate, to the extent he placed any weight on the conduct of the appellant in the present respects, approached the matter in any other way.

Whether it was possible to exclude a reasonable inference of receiving

Finally the appellant submitted that on all of the circumstances of the case, including in particular the combination of the matters the subject of her other submissions, the learned magistrate was not in a position to draw the inference to the criminal standard as between the charged offences and dishonest possession derived otherwise, that is, receiving. For this purpose I was taken to the appropriate direction to a jury in such circumstances, in a case on a charge of stealing or similar or in the alternative receiving or similar, considered in Gilson, on appeal from the Supreme Court of South Australia. The matter of such direction in this State is of course provided for by Criminal Procedure Act 2004 (WA) sch 1 cl 11 (CP Act): there was no corresponding legislative provision in South Australia. That circumstance was one where, as the finder of fact, the jury found itself in the position of inferring to the criminal standard that the possession of the accused was dishonest and that the accused was either the thief or the receiver, but the jury was unable to conclude beyond a reasonable doubt which. In that circumstance, as the majority judgment expressly held, the jury could not be convinced beyond a reasonable doubt with respect to either: Gilson (362) (Mason CJ, Deane, Dawson and Toohey JJ). The majority, with whose judgment in this respect Brennan J and it seems Gaudron J agreed (McHugh J dissenting in this respect), stated that the jury should not be directed in terms of the 'more probable solution' (364), which they identified with Langmead, which was the majority's qualification of 'the approach adopted in [that] case' (364). Rather, the jury should be directed to convict of the 'less serious offence', as to which the judge should direct them: Gilson (364). This approach is of course that provided for in this State by CP Act sch 1 cl 11(2)(b).

In this case, however, there was no alternative charge of receiving. Thus, on the submission of counsel for the appellant if the learned magistrate found himself in the circumstance described, he would on Gilson have to acquit. This proposition was, it seems to me, clearly put to the learned magistrate by counsel for the appellant in her closing.
Counsel for the appellant submitted to me that the learned magistrate could not resolve any such position by the 'presumption' applying 'prima facie' referred to by Griffith CJ in Trainer (132 ‑ 133), quoted above. She submitted this was because the approach of all of the members of the Court in Gilson was to emphasise that a person's possession of recently stolen goods coupled with their failure to account for that possession meant the finder of fact may very well infer that his possession was dishonest, and that he was either the thief or the receiving 'according to the circumstances': Blackburn J, Langmead (441) (1464 of ER), emphasis supplied, quoted in Gilson (359) (Mason CJ, Deane, Dawson and Toohey JJ; Gaudron J agreeing); and see 368 (Brennan J: evidence of possession is 'merely circumstantial evidence which is capable of supporting an inference of either larceny or receiving according to all the circumstances of the case'; emphasis added). Counsel for the appellant submitted that the matter is perhaps put most clearly in McHugh J's quotation in Gilson (376) from the judgment of Blackburn J in Langmead as reported in (1864) 9 Cox CC 464, 468:
As a proposition of law, there is no presumption that recent possession points more to stealing than receiving. If a party is in possession of stolen property recently after the stealing, it lies on him to account for his possession, and if he fails to account for it satisfactorily, he is reasonably presumed to have come by it dishonestly; but it depends on the surrounding circumstances whether he is guilty of receiving or stealing. Whenever the circumstances are such as render it more likely that he did not steal the property, the presumption is that he received it. In the present case, I believe that the jury have drawn the right conclusion.
The circumstances of the case beyond the 'bare fact of possession of stolen property' from which 'inferences can always be drawn' are 'the nature and place of the accused's possession, the value and type of property, and the length of time between the theft and discovery of the accused's possession': Gilson (373) (McHugh J). I have previously addressed circumstances in this case of each of these kinds. See also Wanganeen (436) on a 'sound summing up in a case which depends to a significant degree upon the fact of possession of recently stolen property'.
I consider that, on the analysis of Gilson just described, there is now no 'presumption' of the kind referred to in Griffith CJ's judgment in Trainer (132 ‑ 133). Rather, what inference or inferences are reasonably open depends on all of the circumstances of the case. I thus accept the submission of counsel for the appellant in this respect.
Counsel for the appellant, as I understood her, further submitted that all of the circumstances of this case, particularly those the subject of her other submissions which I have addressed previously, meant that at the least the learned magistrate could not reasonably have concluded otherwise than that a reasonable inference was open that the appellant was guilty of dishonest possession derived otherwise than by commission of the offences of burglary and stealing. Thus the learned magistrate could not reasonably have been convinced beyond a reasonable doubt that the appellant was guilty of the offences with which he was charged.
However, I would not uphold this further submission. In my view the learned magistrate could ‑ although he need not ‑ have concluded the only reasonable inference on all the circumstances, including those the subject of the appellant's other submissions, was that the appellant was guilty of the offences charged. My reasons for this view are the following.
As I have just indicated, I have previously reviewed the circumstances the subject of the appellant's other submissions. I do not consider those circumstances considered with the other circumstances to which I also referred in that review, meant the learned magistrate could not have excluded any inference consistent with the appellant's innocence of the charges he faced. I note in particular the relevance of the evidence as to the appellant's proximity to the place where Mr Mijatovic's property was kept before it was stolen, allowing for the earliest time at which it could have been stolen and the other circumstances relevant to the opportunity to pass on the items stolen to which I referred, and allowing for the time, nature and place of the appellant's possession, and the value and type of the items stolen.
At the same time this is not a case where the evidence as to proximity was such as to preclude the finder of fact drawing as a reasonable inference that the accused was a receiver rather than a burglar or thief. Compare the circumstances where the accused was stopped with a gold watch coming out of the room from which the watch had been taken described by Pollock CB in Langmead (1864) 9 Cox CC at 467 ‑ 468 as quoted in Gilson (376) (McHugh J) above. That is, there was no necessary exclusion of that inference in this case.
Counsel for the appellant put to me that the effect of the conclusion at which the learned magistrate arrived was in effect to have put the onus on the appellant to call evidence to provide the basis for a reasonable inference consistent with innocence. This might be seen to have required evidence from the appellant himself, where of course he had a right to silence.
However, it is clear to me that the principles on which the learned magistrate properly relied do not reverse the onus of proof or abrogate the right to silence. In respect of the onus of proof the matter is one of what inferences are and are not open on the evidence before the court, as in all cases in which a prosecution depends to a significant degree upon circumstantial evidence, including the fact of unexplained possession of recently stolen property. In respect of the right to silence, it is clear that no adverse inference is to be drawn from the exercise of that right in such a case, even if it is exercised by not giving an explanation of the possession. However, the inferences open include those to be drawn from the unexplained possession, rather than the failure to give an explanation: see Bruce 220.

Conclusion and orders

It follows that I would not uphold either of the grounds of appeal. I would thus dismiss the appeal.
I will hear from the parties as to the orders I should make.