Michaelis v Police No. Sccrm-03-1798

MICHAELIS v POLICE
[2003] SASC 67
Magistrates Appeal

BESANKO J: Matthew Robert Michaelis was charged on Information with an offence under s 196(1) of the Criminal Law Consolidation Act 1935 (“CLCA”). The particulars of the charge were as follows:
“Between the 13^th day of OCTOBER, 2000, and the 15^th day of DECEMBER, 2001, at HEATHFIELD or another place in the said State, received one excavator of the value of $20,000.00 the property of Excavation S.A. Pty Ltd knowing it to have been obtained in circumstances amounting to an offence.
Section 196(1) of the Criminal Law Consolidation Act, 1935.
This is a minor indictable offence.”
After a hearing before a Magistrate, the defendant was convicted of the offence. The Magistrate imposed a sentence of four months imprisonment. The term of imprisonment was suspended upon the defendant entering into a bond in the sum of $10.00 to be of good behaviour for a period of two years.
The defendant appeals to this Court against the conviction.
The Hearing Before the Magistrate and the Magistrate’s Reasons
There were in fact four charges in the Information. The Magistrate dismissed all but the first charge. No oral evidence was led before the Magistrate. The prosecution case consisted of three documents, the first of which was a statement of agreed facts.
It is not necessary for me to set out all of the agreed facts. I need only set out those which relate to the first charge. They are as follows:
“1Lance Rowland Joyce states; He is the owner of Excavation SA Pty Ltd. He owns a Kubota excavator KX101, ID No 11905 purchased new by him in March 1995 for about $74,000. Between Friday 13 October 2000 and Monday 16 October 2000 this excavator was stolen from Conyngham Street, Glenside (Police Rept. No. 01/y66650 refers).
On 23 January 2002 he attended at Rising Sun, Gepps Cross, and identified his stolen excavator at those premises.
2Steven David Burgess states; He is part owner of Rising Sun at Gepps Cross. In November 2001 he received a phone call from the Defendant in relation to repair work needed to be carried out on a Kubota excavator. He has known the Defendent for approximately 20 years. Someone other than the Defendant dropped off the excavator in late Nov. early Dec. 2001 for repairs. He spoke to the defendant on 4 December 2001 and requested that he obtain the parts needed, and they were delivered prior to Christmas. The work was completed and the defendant invoiced by 15 January 2002. On 23 January 2002 the excavator was removed from the premises by the Police.
7Detective Sergeant MacIntyre states; On 24 January 2002 in company with Detective Olfacius he attended 13 Walker Avenue, Heathfield and spoke to the defendant who told them, ‘I am the owner of the excavator. I’ve been looking for one for a while, word just got around in the business and I was contacted by a bloke called Richard Clarke from Peninsula Excavations. I’ve tried to contact him but I can’t get through to him on his mobile. I’ve also checked his ABN number on the internet and it comes back as not registered. I paid $17,000 for the excavator. No banking records exist for the transaction. I have a receipt for it’.”
The rest of the agreed facts in paragraph 7 relate to the other charges in the Information.
The prosecution case also included a handwritten notice pursuant to s 200 of the CLCA. The notice contained allegations by the prosecution of prior convictions of the appellant. Section 200 provides as follows:
“(1) When any person is proceeded against for receiving any property, knowing it to have been stolen, or for any other offence arising out of his possession of stolen property, for the purpose of proving guilty knowledge there may be given in evidence at any stage of the proceedings-
(a) the fact that other property stolen within the period of twelve months preceding the date of the offence charged was found, or had been, in his possession;
(b) the fact that prior to the date of the offence charged he was convicted of any offence specified in subsection (2) and involving fraud or dishonesty,
and, on proof of such a conviction, he shall be deemed to have known that the goods the subject matter of the charge had been stolen at the time they came into his possession until he has proved the contrary; but no previous conviction shall be proved pursuant to this section unless not less than seven days written notice has been given to the person charged, or his solicitor, that proof is intended to be given of his previous conviction and, on such proof, he will be deemed to have known that the goods the subject matter of the charge against him were stolen at the time they came into his possession, until he has proved the contrary.
(2) The offences referred to in subsection (1) are the following:
(a) any indictable offence against the laws of the Commonwealth or any Territory of the Commonwealth or any State, whether the offence was tried on indictment or summarily; and
(b) any offence against section 39 or 41 of the Police Offences Act 1953 or any offence against any enactment of another State, or of any Territory of the Commonwealth, corresponding with either of those sections.”
The prosecution also tendered the receipt given to the investigating police officer by the defendant (see agreed fact 7).
The defendant did not give evidence. The prosecutor made brief oral submissions. The appellant’s counsel did not make oral submissions. He gave the Magistrate written submissions which were in the following terms:
“1. The accused is charged with four counts of receiving.
2.The factual material upon which these charges are based is equally consistent with either larceny or receiving. In R v Assheton [2002] SASC 194 (delivered 12/7/02) the majority were able to exclude larceny as an alternative on the facts of that case (para 21). No such distinguishing features exist here.
3.It is permissible to charge both stealing and receiving of property as separate counts on the one Information (s 196(2) and (3) Criminal Law Consolidation Act).
4.Recent possession applies equally to receiving and larceny. R v Khalil (1987) 44 SASR 23; R v Myall (1986) 43 SASR 258.
5.Where both larceny and receiving is charged and the offences are made out, the accused should only be convicted of the lesser. Gilson v R (1991) 53 A Crim R 344.
6.Where an accused is charged only with receiving and the evidence is as consistent with his being the thief as it is with his being the receiver then he cannot be convicted (R v Dawson (1964) SASR [64] 256; McCarthy and Ryan (1993) 71 A Crim R 395; Thanh Long Nguyen (1992) 60 A Crim R 196; R v Assheton [2002] SASC 194.
7.The person in possession cannot receive the property that he himself has stolen. If it is reasonably possible that the accused is the thief then that is an hypothesis consistent with innocence on a charge of receiving.”
In his reasons the Magistrate referred to a passage in the reasons for judgment of the Full Court in R v Dawson [1964] SASR 257 at 260, a decision discussed below. He referred to the elements of the offence of receiving as set out in Criminal Law South Australia, Judge Lunn QC vol 1 pages 4693 – 4694. He then referred to s 200 of the CLCA and noted that the appellant had admitted that on 13 November 1998 he was convicted in the Adelaide Magistrates Court of the charge of unlawful possession of goods reasonably suspected of having been stolen or obtained by unlawful means, and that he was convicted on 12 August 1994 in the Adelaide Magistrates Court of one charge of receiving.
The Magistrate noted by reference to the agreed facts that on 24 January 2002 the appellant admitted that he was the owner of the excavator. Since November or December 2001 he was exercising control over the excavator, and, in fact, had been invoiced for repairs by 15 January 2002.
The Magistrate then referred to a number of cases which discuss the application of the doctrine of recent possession. The Magistrate concluded that the prosecution could not possibly rely solely on the defendant’s assertion of ownership to the excavator or the principle relating to recent possession to prove a charge of larceny. He said that the excavator was both movable and saleable. The Magistrate considered that the situation was different in the case of a charge of receiving stolen goods. The appellant was in the market for the goods, and he had paid approximately twenty per cent (20%) of the original purchase price. The Magistrate concluded from what the appellant told the police on 24 January 2002 that there was a strong inference that the defendant was protecting the person from whom he received the excavator.
The Magistrate expressed his conclusions in the following way:
“In my opinion all the prosecution evidence leans quite heavily towards a charge of receiving stolen goods but little, if any, indicates an act of larceny.
Those charges are simply not on an equal footing and accordingly I believe the defendant has been appropriately charged with the single offence of receiving stolen goods.
Pursuant to s 200 of the Criminal Law Consolidation Act (in light of his prior conviction, coupled with the admission of possession) it is incumbent upon the defendant to prove that he came by the goods honestly.
He has produced no evidence whatsoever.
Having read all the agreed facts and having heard the submissions of prosecution and read the submissions by the defendant, I come to the very firm conclusion that the defendant did receive the goods the subject of Count 1 into his possession knowing them to have been obtained in circumstances amounting to dishonesty.”
The Arguments on Appeal
The Grounds of Appeal are as follows:
“a.The Learned Special Magistrate erred in concluding that he could be satisfied beyond a reasonable doubt that Count 1 had been proved in that:
(i)     he drew (or may have) adverse inferences in the absence of evidence as to
§The whereabouts of the excavator from 13 October 2000 to November/December 2001;
§The value of the excavator in October 2000;
§Any further investigations by the Appellant into the person Clarke;
§Any investigations made by the police into the person Clarke;
(ii)    Failed to exclude larceny as being reasonably possible, or, in the alternative, if he did so exclude it, was wrong.
(iii) Relied upon the s 200 material to support the charge of receiving when in reality the s 200 material was only of evidentiary value once the charge of larceny had been excluded as a reasonable possibility.
b.      Failed to adequately explain the basis of his reasoning in any event.
c.Despite the Applicant’s statement to the police that he was the owner of the Kubota KX101 excavator (the subject of Count 1) there was no evidence capable of establishing that the Applicant had ever been in the possession of it and the Applicant’s statement in this regard was rejected by the Learned Special Magistrate in any event.”
The appellant abandoned ground (c).
At the hearing of the appeal, counsel for the appellant put three principal arguments. First, she submitted that the Magistrate had erred in failing to consider whether he could exclude as a reasonable possibility guilt of larceny. Counsel submitted that that was the correct test and that statements suggesting that the question was whether the evidence pointed more strongly to guilt of receiving rather than larceny did express the test accurately. It was submitted that the Magistrate erred by in fact considering whether the charges were on an equal footing. She argued that guilt of larceny had to be excluded as a reasonable possibility before reliance could be placed on s 200 of the CLCA.
Secondly, counsel for the appellant argued that the Magistrate had erred in finding that the appellant had produced “no evidence whatsoever” that might rebut the “presumption” created by s 200 of the CLCA. It was submitted that there was evidence in the form of the appellant’s statement to police on 24 January 2002 (see agreed fact 7).
Thirdly, counsel for the appellant argued that the Magistrate erred in concluding that the appellant was guilty of the offence based on his finding that the appellant received the excavator into his possession knowing it to have been obtained in circumstances amounting to dishonesty. The charge was that the appellant received the excavator knowing it to have been obtained in circumstances amounting to an offence. It was argued that it was not enough to constitute the offence to find that when it came into his possession the appellant knew that the excavator had been obtained in circumstances amounting to dishonesty.
Receiving
General
Section 196(1) of the CLCA provides:
“A person who receives property, knowing it to have been taken, obtained, converted or disposed of in circumstances which amount to an offence, is guilty of an offence.
Penalty: Imprisonment for eight years.”
There are three elements to the offence of receiving, namely, (1) a “receiving”, (2) of stolen goods, (3) with knowledge at the time they were received that they were stolen (R v Dawson at 259). There was no dispute in this case that the excavator was stolen property (agreed fact 1), and, in view of agreed fact 2, I do not think it could be said the excavator was not received into the appellant’s possession.
As I understand it, the prosecution accepts that guilt of larceny must be excluded before the provisions of s 200 of the CLCA are applied.
The doctrine of recent possession means that proof of recent possession of stolen property is evidence either that the person in possession of the property stole it or received it knowing it to have been stolen (R v Khalil (1987) 44 SASR 23). It does not give rise to a presumption, rather it is an item of evidence from which one may infer guilt in a similar way to the familiar process of reasoning from circumstantial evidence (R v Wanganeen (1988) 50 SASR 433). In Bruce v R (1987) 61 ALJR 602, the High Court said (at 603):
“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 explanatory circumstances, which enables the inference to be drawn. Thus, the absence of any reasonable explanation must not in itself be explicable in a manner consistent with innocence.”
What constitutes “recent” possession for the purposes of the doctrine will depend upon the nature of the goods and the circumstances of the case (R v Khalil per O’Loughlin J at 35 – 37).
Larceny or Receiving
It was open to the prosecution to allege larceny or receiving in the alternative (s 196(2)). In Gilson v The Queen (1991) 172 CLR 353, the High Court said that if the jury (or Magistrate) was satisfied beyond a reasonable doubt that the accused either stole the property or received it knowing it to have been stolen, but was unable to say which, then the jury (or Magistrate) should return a verdict of guilty of the less serious offence. The prosecution did not charge the appellant in the alternative in this case presumably because it wished to rely on the provisions of s 200 of the CLCA. It could not do so if it charged the appellant in the alternative (R v Davies [1953] 1 QB 489 at 493).
In R v Dawson, the Full Court of this Court considered the position where the accused was charged only with one of the two offences. The Court said (at 260):
“But, where the accused is charged with one only of the two offences, larceny or receiving as the case may be, it seems to us that the charge must be proved as it is laid. The jury are not at liberty to return a verdict of guilty unless the fact is proved beyond any reasonable doubt, and it is not so proved if the evidence shows no more than that accused is guilty either of the offence charged or of some other offence with which he is not charged (citation of authority omitted).
In the present case, it seems to us that, if the evidence called by the Crown is accepted, it is, at the least, equally consistent with the appellant being either the thief or a receiver from the thief. If there had been a proper direction and the jury realising the difficulties of the case had, nevertheless, found against the appellant, it might have been a different matter, but, as the case stands, we think that the appeal must be allowed so far as it relates to the conviction on the third count.”
The proper approach where the accused is charged with one of the two offences of larceny or receiving was also considered by the Court of Criminal Appeal in R v Assheton [2002] SASC 194. Doyle CJ (with whom Lander J agreed) considered the question in the context of a no case submission on charges of receiving stolen property. Doyle CJ said (at 593):
“I agree that the submission of no case to answer should have been upheld if the Judge was not able to conclude that it was open to the jury to exclude the competing hypothesis of guilt of larceny. That is so because, if at the end of the day the jury could not do so, their verdict had to be not guilty, for the reason explained in Dawson. On a no case submission the Judge must consider whether the jury can exclude any hypothesis consistent with innocence of the offence charged. If the jury could do no more than conclude that the evidence pointed to guilt of larceny or receiving, they could not exclude the possibility that Mr Assheton was guilty of an offence not charged: see Gilson (at 362). A hypothesis of guilt of larceny, if reasonably open and not able to be excluded, would in the particular circumstances lead to an acquittal: Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; R v Clune (1999) 72 SASR 420 at 421, 425 and 442 – 443.
I consider that the Judge was correct, although I agree that excluding as a reasonable possibility guilt of larceny is not easy. … Nor have I overlooked the impact of the presumption of guilt of larceny or receiving that arises from the unexplained possession of recently stolen property: see R v Wanganeen (1988) 50 SASR 433 at 435 per King CJ. But, taking the material overall, it pointed more strongly to a joint activity in receiving stolen goods, rather than in stealing.
On that material it was open to the Judge to hold that the jury could conclude that the evidence pointed much more strongly to receiving than to larceny and that a charge of larceny could not be proved beyond reasonable doubt.”
In R v McCarthy and Ryan (1993) 71 A Crim R 395 the New South Wales Court of Criminal Appeal made it clear (at 398 – 400) that the non-charged offence (in that case, receiving) must be excluded as a reasonable possibility. In my respectful opinion, that is the correct position. It seems to me to follow from the decisions in R v Dawson and R v Gilson. In this case the Magistrate needed to be satisfied that guilt of larceny could be excluded as a reasonable possibility.
The appellant submitted that the Magistrate had erred by in effect asking himself which offence was the more probable, rather than the correct question of whether guilt of larceny was excluded as a reasonable possibility. There is support for the appellant’s submission in the observations by the Magistrate that, “all the prosecution evidence leans quite heavily towards a charge of receiving stolen goods but little, if any, indicates an act of larceny” and “those charges are simply not on an equal footing”.
The appellant further submitted that insofar as the Magistrate relied on the doctrine of recent possession, that doctrine led to the conclusion that the appellant was the thief or else a guilty receiver of the property. It did not enable the Magistrate to exclude guilt of larceny as a reasonable possibility. If the Magistrate relied on what the appellant said to the police on 24 January 2002 to exclude larceny as a reasonable possibility, then he erred in going on to find beyond a reasonable doubt that the appellant was guilty of receiving. The appellant submitted that the conversation of 24 January 2002 in fact exonerated him.

The appeal before me is a rehearing. There was no oral evidence in the case so that the Magistrate had no advantage over this Court in terms of being able to assess the demeanour of witnesses. I think I am in as good a position as the Magistrate to draw relevant inferences.
I agree with the Magistrate that there is little evidence of larceny in this case. The excavator was stolen in October 2000. It was in the possession of the appellant late in 2001. The nature of an excavator is such that it may be difficult for a thief to pass it onto another. On the other hand, the thief would be keen to dispose of it as soon as possible because it is not an item of property easily concealed. In my opinion, any inference which might arise by reason of “recent” possession is a relatively weak one. I think the Magistrate was entitled to find on the basis of what the appellant said to the police on 24 January 2002 that he obtained the excavator possibly in April 2001 from another person whom he identified as a Mr Richard Clarke. The Magistrate was entitled to draw the inference that the appellant was protecting the person from whom he obtained the excavator, but the critical point is that he was entitled to find that the appellant obtained the excavator from an unidentified person. Guilt of larceny was excluded as a reasonable possibility. Counsel for the appellant submitted that the Magistrate should have accepted all of what the appellant said on 24 January 2002 or none of it. It was submitted that as a whole what the appellant said established his innocence of any offence. I note that the appellant did not say he did not know the excavator was stolen, but even if what the appellant said contains an implied assertion of innocence the Magistrate was not bound to place equal weight on all aspects of what the appellant said. In Spence v Demasi (1988) 48 SASR 538, Cox J said (at 540):
“It is common for the Crown to tender a record of the accused’s interrogation by the police, and often this will contain a mixture of admissions and self-serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay. The whole interrogation (or narrative statement, as the case may be) goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict. They may give different weight to different parts: see R v Higgins (1829) 3 C & P 603; 172 ER 565. The failure of the accused to give evidence may well influence their attitude to the self-serving answers.”
As I have already said, in this case the appellant did not give evidence.
In Spence v Demasi, Cox J went on to say (at 546):
“When a party’s unsupported out of court assertions are received in evidence, for whatever reason – and in the present case they went in by consent – plainly the court’s decision to reject them as worthless will not ordinarily be assailable. The tribunal of fact is generally entitled, in criminal or civil proceedings, to act on whatever amounts to a confession or admission and to reject the exculpatory parts: (citation of authority omitted).”
The Magistrate was entitled to act on those parts of the appellant’s statement which established that he obtained the excavator from an unidentified person. He was entitled to reject or not act on other parts of the statement. In deciding not to act on self-serving statements he was entitled to have regard to the contents of the statement as a whole and to the fact that the appellant did not give evidence. In my opinion the Magistrate was right to find that there was little evidence of larceny and I think the evidence excluded guilt of larceny as a reasonable possibility.
The prosecution was then entitled to rely on s 200 of the CLCA to establish that the appellant had the requisite knowledge unless the appellant proved the contrary.
Proof to the Contrary
In considering whether the appellant had proved the contrary under s 200 of the CLCA the Magistrate said that the defendant had produced no evidence whatsoever. That is incorrect. He did not give evidence or call evidence. However, his statement to the police on 24 January 2002 was evidence which the Magistrate could have relied upon to find that the contrary had been proved. However, he was not bound to do so.
I think having regard to the contents of the statement and the fact that the appellant did not give evidence, the self serving statements by the appellant did not prove the contrary. His statements about his attempts to locate the person from whom he allegedly purchased the excavator and the absence of banking records are far from satisfactory in terms of an explanation.
In my respectful opinion, the Magistrate erred in saying the appellant produced no evidence whatsoever, but the error does not mean that his decision to convict is wrong.
Knowledge of the Excavator Having Been Obtained in Circumstances Amounting to an Offence or Dishonesty
The Magistrate did express his conclusion in terms of knowledge that the excavator had been obtained in circumstances amounting to dishonesty, whereas before convicting the defendant the Magistrate was required to find that the excavator had been received in circumstances amounting to an offence, namely (in this case) larceny. As I have said, the appeal before me is by way of rehearing. Having regard to the evidence and the Magistrate’s reasons I am satisfied that he would have found (had he directed his mind to the question) that the appellant at the time he took possession of the excavator knew it had been obtained in circumstances amounting to an offence. I am satisfied that there has been no miscarriage of justice.
Conclusions
For these reasons I would dismiss the appeal.

[2003] SASC 67

6 March 2003