R v Assheton

R v ASSHETON
[2002] SASC 194
Court of Criminal Appeal: Doyle CJ, Perry and Lander JJ

DOYLE CJ: Mr Assheton was convicted on one count of receiving property knowing it to have been stolen, after a trial before a jury.
The grounds argued on appeal are that the Judge erred in ruling at the close of the prosecution case that there was a case to answer, and that the guilty verdict is inconsistent with verdicts of not guilty returned on other counts on the Information.
Facts
On 11 October 1999 the police entered a shed at an Adelaide address. The prosecution case was that the shed was rented from another person by Mr Mather from 30 September 1999 at a rental of $650 per month.
In the shed were some motor vehicles that had been stolen, numerous motor vehicle parts, a Commodore motorcar that belonged to Mr Assheton, and a Ford Falcon station wagon. The prosecution case was that Mr Assheton had bought the Ford Falcon about two days before.
The evidence about what was found in the shed suggested quite strongly that the shed was being used to break up or to alter and disguise stolen motorcars, and to store and handle stolen parts from motorcars.
A number of men were in the shed. Mr Mather was one of them. Mr Assheton was asleep in the red Commodore. There was no dispute that it was his car.
Mr Assheton was jointly charged with Mr Mather on five counts of receiving. The Judge ordered that the two men be tried separately.
Mr Assheton was tried on five counts. Count 1 related to three motorcars and personal property stolen from Marion Daewoo between 1 and 3 October 1999. These vehicles were not in the shed. Two were found in streets nearby, and one at the back of a home not far away. They had been stripped. A lot of items in the shed came from them. Count 2 related to a Toyota Land Cruiser that was in the shed. It had been stolen some time during the first half of 1999. There was no evidence about its whereabouts between it being stolen and being found in the shed. It had been cut up. Count 3, the only count on which the jury found Mr Assheton guilty, related to a blue Ford utility that was in the shed. It was stolen between 9 October and 10 October, only 24 hours before the police arrived. Quite a lot of work had already been done on the Ford utility. Count 4 related to a Troop Carrier also found in the shed. It was stolen on 8 August 1999. It was in the process of being cut down. Count 5 related to fuel cards and service books and other items stolen from a car at Marion Daewoo or from the premises there. These items were found in the back of the Ford utility the subject of count 3.
Only Mr Mather and Mr Assheton were charged on the Information. They were not charged with stealing as an alternative, but only with receiving.
The prosecution case was that Mr Mather and Mr Assheton were jointly involved in a scheme or enterprise of receiving stolen motorcars and dealing with them. The prosecution case was that although it could not prove the receipt of stolen goods, they had been received by Mr Mather and Mr Assheton jointly at various times. The prosecution case was that although Mr Mather had rented the shed, the two men were jointly in control of the stolen contents.
The Judge directed the jury that the logic of the prosecution case was that Mr Assheton was guilty of all counts or none, but the Judge pointed out that the jury must consider each count separately, and that the jury were not bound by this approach of the prosecution.
Ground 1. The submission of no case to answer.
At the conclusion of the prosecution case, counsel for Mr Assheton submitted that there was no case to answer.
He submitted that if the inferences reasonably open and most favourable to the prosecution were drawn, the evidence was not capable of leading to a conclusion beyond reasonable doubt of guilt of receiving, rather than of larceny. Guilt of larceny remained as a hypothesis or conclusion from the facts, which hypothesis or conclusion could not be excluded. There was no basis for concluding that Mr Mather and Mr Assheton had not stolen the vehicles and parts. Accordingly, as the jury could not reasonably exclude the possibility that Mr Assheton was guilty of stealing the motorcars and other property there had to be an acquittal.
The submission on this point was based on observations made by this Court in The Queen v Dawson [1964] SASR 256 at 260. There, the Court dealt with the approach to be taken when a person is charged with larceny or with receiving in the alternative, and then turned to the position when the person is charged with one of those offences only. The Court said:
“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.
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.” (Citations omitted.)
In Gilson v The Queen (1991) 172 CLR 353 the High Court considered the approach to be taken when larceny and receiving are charged in the alternative, and in one respect corrected what this Court said in Dawson. But there is nothing that the majority said in Gilson to cast any doubt on what was said in Dawson about the approach to be taken when there is no alternative charge. As I understand their Honours’ reasons, they proceed on the same basis as did this Court in Dawson: in particular at 361-362.
It follows that the Judge could reject the submission of no case to answer only if he came to the conclusion that the jury could reasonably be satisfied beyond reasonable doubt that Mr Assheton was guilty of receiving, and in the circumstances that would require the jury reasonably to conclude that the evidence did more than establish merely that Mr Assheton was guilty either of larceny or of receiving.
The Judge rejected the submission and the case proceeded. Mr Assheton gave evidence.
The prosecution case rested in part on the presence of motor vehicles and motor vehicle parts in the shed, and on what was being done to the vehicles and with the parts. The contents of the shed suggested quite strongly that motor cars were being stripped and disguised, and that parts were being removed with a view to sale or other use. In other words, there was a strong basis for concluding that the shed was being used to deal with stolen vehicles. As to joint enterprise, the prosecution relied on the combined effect of a number of circumstances. First, Mr Assheton’s presence in the shed. Second, the fact that a bull bar from the stolen utility (the subject of count 3) was attached to the Ford Falcon station wagon, alleged to belong to Mr Assheton. Third, that the Commodore and the Ford Falcon station wagon were stored in the shed and took up a fair amount of space. The suggestion was that Mr Mather would not have allowed Mr Assheton to occupy so much space unless he were involved in the overall activity. Fourth, the fact that in the boot of the Commodore were a CB radio and stereo taken from the stolen utility the subject of count 3. Fifth, the fact that in the back of the stolen utility were some items apparently discarded by Mr Assheton. There were other items in the back of the utility that could not be linked in this way to Mr Assheton. Sixth, building on the connection between Mr Assheton and the stolen utility, the prosecution then pointed to other items in the back of the utility that came from other vehicles or that were the subject of other counts. This was said to provide a link between Mr Assheton and the other vehicles. However, there was nothing at all to link Mr Assheton to the Toyota Land Cruiser the subject of count 2.
On the basis of all this material the prosecution submitted that one could infer that Mr Assheton was involved in a joint enterprise with Mr Mather.
The Judge was satisfied that the jury could conclude beyond reasonable doubt that Mr Assheton was party to a joint enterprise in receiving stolen goods. He did not elaborate on how the jury could properly exclude the competing hypothesis of involvement in the larceny of the motor vehicles and of the parts that were in the shed.
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. The hypothesis of guilt of larceny, if reasonably open and not able to be excluded, would in the particular circumstances lead to an acquittal: Question 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. It was open to the jury to decide that Mr Assheton’s involvement in larceny could be excluded, despite the difficulty. There was nothing at all to connect Mr Mather or Mr Assheton with the stealing of any of the property, other than the fact of their possession of it in the shed, if the jury accepted that they were in possession of it. Moreover, as I understand it, on the prosecution case there was no evidence of any link between Mr Mather and Mr Assheton that went back to the first half of the year when the vehicle the subject of count 2 was stolen. No other person was identified as a further party to the joint arrangement and involved in the stealing of the motor vehicles and personal property. The activity in the shed pointed to dealing in or with stolen motor vehicles and parts, not to the larceny of motor vehicles and parts. I have not overlooked the fact that a person might steal cars and strip them, or steal goods and deal with them. 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 433-435 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. The jury could so conclude on the basis that the link to any involvement in the taking of the vehicles and other property was too tenuous. The Judge could also conclude that it was open to the jury to make a finding of guilty of receiving on the evidence.
It is not necessary to consider whether, when an appeal against a conviction challenges the correctness of a ruling on a submission of no case to answer, the appellate court should take into account evidence given by the defendant as part of the defence case. I have not placed any reliance on that material. There is no suggestion that it added anything to the prosecution case. The outcome of the appeal would be the same either way.
Counsel for Mr Assheton also argued that the Judge’s reasons indicate that the Judge considered only whether the jury could find beyond reasonable doubt that Mr Assheton was guilty of receiving. Counsel submitted that the Judge had not also considered whether the jury could exclude the competing hypothesis that Mr Assheton was guilty of larceny. I agree that on this point the Judge’s reasons are not completely clear. But I am not satisfied that the Judge did fail to pose the correct test. In any event, it was open to him to reject the no case submission as he did.
Ground 2. An unreasonable verdict.
The jury convicted Mr Assheton on count 3 only. The jury must have rejected the prosecution hypothesis of a joint enterprise with Mr Mather in the overall activity taking place in the shed. It was entitled to do so. The basis for inferring a joint enterprise does not seem to be particularly strong to me.
Once that is done, the jury’s verdicts are readily explicable. The vehicle the subject of count 3 is the only vehicle to which Mr Assheton is shown to have had a real connection. A bull bar from this car had been attached to the Ford Falcon utility that the prosecution said belonged to Mr Assheton. A CB radio and a stereo from the vehicle the subject of count 3 were found in the Commodore. The jury might reasonably have concluded that this demonstrated that Mr Assheton was in the process of stripping parts from the vehicle the subject of count 3, and in possession of the vehicle for that purpose. Once the overall joint enterprise was not accepted, there was no sufficient basis to connect Mr Assheton with the other stolen goods in the shed. The fact that some bits and pieces from other stolen vehicles, or that other stolen goods, were found in the back of the utility the subject of count 3 was not a sufficient basis for an inference of guilt. Anyone could have tossed bits and pieces into the back of the utility.
It is for that reason that there is no conflict between the verdict of guilty and the verdicts of not guilty.
As well, it was open to the jury to conclude that Mr Assheton was guilty of receiving. Once his involvement in the joint enterprise with Mr Mather was rejected, the case for any involvement in larceny became very thin. There was simply no link to the other vehicles and parts in the shed. The Judge gave the jury a clear and firm direction that before finding Mr Assheton guilty of receiving, they had to exclude as a reasonable possibility the conclusion that he stole the property. There is no reason to fear that the jury misunderstood what the law required for a verdict of guilty.
Conclusions
For those reasons I would dismiss the appeal.
PERRY J. The relevant facts are set out in the judgment of Doyle CJ.
The information alleged five counts of receiving. The only count upon which the jury found the appellant guilty was count 3. This count alleged that the appellant, together with the co-accused, Mr Mather (who was tried separately):
“... between the 9 October 1999 and 11 October 1999 at Windsor Gardens or other places, received one motor vehicle, namely a Ford Falcon ute of the value of about $8,000, the property of Michael Richard Williams, knowing it to have been stolen.”
The case as it was put by the prosecution to the jury was that the appellant and Mr Mather were involved in a joint enterprise of receiving stolen vehicles, stripping them and dealing with the parts.
The police raid on the shed in which the vehicle the subject of that count was found, together with other items which were the subject of other counts, took place on 11 October 1999. Both Mr Mather and the appellant were in the shed at the time of the police raid. The appellant was seated inside another vehicle, a red Commodore.
The Ford Falcon utility had been stolen from an address at North Adelaide overnight, that is, between 9 and 10 October 1999, about a day before the police raid.
The evidence established that some parts had been removed from the stolen utility and placed in the boot of the red Commodore. A bull-bar which had been removed from the stolen utility had been attached to a Ford Falcon station wagon alleged to belong to the appellant.
There were other items found in the back of the stolen utility which had been removed from other vehicles the subject of other counts.
The Submission of No Case to Answer
This submission proceeded on the footing that having regard to the state of the evidence at the conclusion of the Crown case, inferences that the appellant had been guilty either of receiving or larceny ranked equally. As the appellant had been charged with receiving only, in those circumstances, there was no case fit to go to the jury.
It has long been accepted that if the evidence is consistent with the accused being either the thief or a receiver of stolen property, and he is charged with only one of those offences, he or she must be acquitted. See, for example, the dictum of the Court of Criminal Appeal[1] in Dawson:[2]
“... 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.”[3] (emphasis added)
[1] Napier CJ, Mayo and Chamberlain JJ.
[2] [1964] SASR 256 at 260.
[3] Citing Ghys v Crafter [1934] SASR 28 and R v Seymour (1954) 38 Cr App R 68
Given that the Crown case was circumstantial, the question arose as to the appropriate approach to the determination of the submission of no case to answer in such circumstances.
The matter is dealt with in Questions of Law Reserved on Acquittal (No 2 of 1993).[4] In that case, King CJ (with whose judgment Bollen J agreed) made the following observations (at 5):
“It follows from the principles as formulated in Bilick[5] in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence: Attorney-General’s Reference (No 1 of 1983);[6] Thorp v Abbotto.[7] He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.
...
There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.” (Emphasis in the original)
[4] (1993) 61 SASR 1.
[5] (1984) 36 SASR 321.
[6] [1983] 2 VR 410.
[7] (1992) 34 FCR 366.
In this case, the learned trial judge gave written reasons for his ruling on the no case submission.[8] After referring, inter alia, to Dawson and Question of Law on Acquittal (No 2 of 1993), the learned trial judge concluded:
“In my view, if one considers the inferences which are reasonably open and are most favourable to the prosecution, it would be open to a jury to be satisfied beyond reasonable doubt that the accused was a party to receiving as charged. In my opinion it is a question for the jury whether there is a competing hypothesis reasonably open on the evidence that the accused might have been the thief. If the jury so concludes, then they must acquit. In my view, that is ultimately a question for the jury, not for the Judge. It follows therefore that I reject the application on this ground.”
[8] See R v Randel Scott Assheton [2001] SADC 189, 31 December 2001.

With respect to those observations of the learned trial judge, I accept that it is true that ultimately, if the case is fit to go to the jury, it is a matter for the jury to determine whether in fact “there is a competing hypothesis reasonably open on the evidence that the accused might have been the thief”.
But at the stage at which a submission of no case to answer is made, it is purely a matter for the judge and not the jury to determine whether, on the Crown case taken at its highest, the jury could convict.
On a no-case submission made in such circumstances the trial judge must address the question whether the jury “could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence”.[9]
[9] Question of Law Reserved on Acquittal (No 2 of 1993) (supra) per King CJ (emphasis added).
Putting it another way, the case should only be left to the jury if, on the trial judge’s assessment of the evidence, he or she reaches the view that the jury could reasonably exclude any hypothesis consistent with innocence (in this case, guilt of larceny rather than receiving) beyond reasonable doubt.
In fairness to the learned trial judge, it may be that such a conclusion should be inferred from the first sentence of the passage which I have cited. But to put the matter in that way does not, with respect, fully articulate the role of the trial judge.
The correct principle as explained in Question of Law Reserved on Acquittal (No 2 of 1993) does not mean that for a no-case submission to succeed the inferences pointing to guilt of either receiving or larceny must rank equally in terms of probability. The evidence might point more strongly to evidence of receiving, but where only receiving has been charged, if the possibility of guilt of larceny could not be excluded beyond reasonable doubt, the case should not be left to the jury.
In this case, the evidence pointed strongly to the fact that the appellant and Mr Mather were involved in a joint enterprise, and further, that the enterprise involved the stripping of stolen motor vehicles for their parts. However, I am, with respect, unable to accept that the possibility that the appellant was guilty of theft rather than receiving of the Ford Falcon utility in question could be excluded beyond reasonable doubt.
It is a notorious fact that thieves steal vehicles and strip them of their parts. This vehicle had been stolen within 24 hours of the police raid. At the time of the raid, it was open on the evidence to conclude that it was in the possession of the appellant.
The doctrine of recent possession applies to both larceny and receiving. In many cases it may not point any more strongly to one as opposed to the other offence. In my view, this is such a case.
Even if I am wrong in that conclusion, nonetheless, it seems to me that, taking the Crown case at its highest, the possibility that the appellant was engaged either as a principal or as an accessory in the theft of the stolen utility could not be excluded beyond reasonable doubt.
In my opinion, the learned trial judge should have upheld the submission that there was no case to answer.
The question arises as to the appropriate course for this Court to take where the trial judge has erred in rejecting a no case submission, and subsequently the accused gives or calls evidence.
There is a view that in such circumstances the only question for an appeal court is whether on the whole of the evidence, including the defence evidence, there has been a miscarriage of justice. But there is a conflict of authority in Australia on the point. Some of the authorities are noted by Williams J in Liddy.[10]
[10] Judgment No [2002] SASC 19, 31 January 2002 (CCA) at paras 526 - 534 inclusive.
I agree with Doyle CJ that in this case and for this purpose, the evidence of the appellant did not add anything to the prosecution case. It follows that the outcome should be the same, whichever is the current view of the role of this Court in a case such as this. Accordingly, I refrain from expressing a view on the matter.
Eventually the conflict of authority ought to be resolved by this Court, but it is better to wait for a case in which the point will be decisive.
In this case, the question may affect the ground upon which the appeal should be allowed. If it was to be allowed on the basis that the trial judge had erroneously rejected a submission of no case to answer, that would amount to an error of law. If that is not to be the approach, then in terms of s 353(1) of the Criminal Law Consolidation Act, the verdict should be regarded as one which “cannot be supported having regard to the evidence”.
In either event, I would allow the appeal and set aside the conviction. I would substitute a verdict of acquittal.
LANDER J:I agree for the reasons given by the Chief Justice that this appeal should be dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.    Napier CJ, Mayo and Chamberlain JJ.
2. [1964] SASR 256 at 260.
3.    Citing Ghys v Crafter [1934] SASR 28 and R v Seymour (1954) 38 Cr App R 68
4. (1993) 61 SASR 1.
5. (1984) 36 SASR 321.
6. [1983] 2 VR 410.
7. (1992) 34 FCR 366.
8.    See R v Randel Scott Assheton [2001] SADC 189, 31 December 2001.
9.    Question of Law Reserved on Acquittal (No 2 of 1993) (supra) per King CJ (emphasis added).
10. Judgment No [2002] SASC 19, 31 January 2002 (CCA) at paras 526 - 534 inclusive.

[2002] SASC 194

12 July 2002