R v Assheton No. DCCRM-00-211

[2001] SADC 189

R v Randel Scott Assheton
[2001] SADC 189

Judge Sulan
Criminal

1. Randel Scott Assheton is charged with five counts of receiving.

2. The charges all relate to property which was found in a shed at 14 Katrina Avenue, Windsor Gardens.  In the early hours of the morning of the 11^th October, police entered the shed and inside the shed they found various items, including parts of motor vehicles, three vehicles and various other items, including documents. 

3. Much of the prosecution case is not in dispute.  It is not disputed that many of the items found in the shed came from three Daewoo motor vehicles which had been stolen from Marion Daewoo between the 1^st and 3^rd October 1999.  The shells of two of those vehicles were found not far from the shed, in a nearby suburb. 

4. Also found in the shed was a Toyota Land cruiser which belonged to Frances Richards.  That vehicle had been stolen from premises at which they had been stored, some time in the first half of the calendar year 1999.  Also in the shed was a blue Ford utility which had been stolen between the 9^th and 10^th October 1999, from North Adelaide.  In the back of that vehicle were some documents belonging to a Mr Crawford.  They had been stolen in the vicinity of Saint Mark’s College, also on the night of the 9^th and 10^th October 1999.  Another Land cruiser which had been stolen on about the 9^th August 1999, was also located in the shed.

5. There were a number of young men in the shed when the police entered, including a man named Troy Morel Mather.  It is not disputed that Mather had leased the shed from his girlfriend’s father and that Mather had unlimited and unconditional access to the shed.  He had rented the shed at the beginning of October 1999. 

6. The accused, Assheton, was asleep in a car inside the shed.  That car was a Commodore which was registered in his name.  In the boot of the car there was a CB radio and a car stereo.  Those items had been removed from the blue utility which is the subject of count three.  Also in the shed was a Ford Falcon station wagon.  Evidence led on behalf of the prosecution supports the prosecution’s contention that that Ford Falcon was disposed of by the registered owner, Glenn Healey, to the accused, Assheton on the 9^th October 1999.  Attached to the front of that vehicle was a bullbar which came from the stolen utility, the subject of count three.  In the back of the stolen utility were a number of items, including a bumper bar which came from the Ford Falcon station wagon.  Also in the rear of the stolen utility were a number of items which came from some of the vehicles which had been stolen from Marion Daewoo and which are the subject of count one.  The prosecution case, as put by Mr Heffernan, relies upon circumstantial evidence and upon joint enterprise.  Mr Heffernan submitted that the evidence points to the central activity in this shed as being one of stripping motor vehicles and dealing in the parts of those motor vehicles.  Inside the shed were hoists and other tools which could be used to strip vehicles.  He said that the shed was packed with vehicles and other items.  He submitted that the accused was present in the shed.  Items from the vehicle, the subject of count three (the Ford utility), were found in the red Commodore.  In the rear of the stolen Ford utility were items of stolen property and items which related back to the accused Assheton, because they came from two vehicles inside the shed, which he owned.  He submitted, therefore, that there was evidence upon which a jury could conclude that Assheton was more than a visitor to the shed, that he had two vehicles stored there and that he was involved in the criminal activity which was taking place in the shed and that he was jointly in possession of the stolen property with Mather, who was the lessee of the shed.  He submitted that there was sufficient evidence upon which the jury could conclude that Assheton was in joint possession of the stolen property in the shed.  That is, that he had joint control over it with Mather and that they were involved in a joint enterprise of receiving.

7. Mr Aitken submitted no case to answer.  He based his submissions on two grounds.  The first ground upon which he relied is that a reasonable jury properly directed could not convict Assheton because the unchallenged evidence of the Crown put at its highest, leads to equally consistent inferences of larceny and receiving.  Mr Aitken submitted that the evidence of the prosecution put at its highest, assuming that Assheton was in possession of all the stolen items, is equally consistent with Assheton having been involved in the larceny of these items as it is with him having been involved in receiving them.  Mr Aitken submitted, therefore, a jury properly directed could not conclude that the only reasonable inference to be drawn from the evidence was the guilt of the accused because it was equally open to the jury to find that the accused was the thief.

8. The question of the interrelationship between larceny and receiving was considered in The Queen v Dawson (1964) SASR 256.  In that case, the appellant was charged with one count of breaking and entering an hotel and stealing certain property.  He was also charged with receiving that property.  He was further charged with receiving a tin containing foreign coins, knowing it to have been stolen.  Counts one and two were charged in the alternative.  The third count of receiving the tin was not related to the first two counts.  In respect of the third count, the Court of Criminal Appeal considered the question of inferences, which are equally consistent with the appellant being either the thief or receiver.  At page 260, the Court made the following observation :

   “In the present case, it seems to us that, if the evidence called by the Crown is accepted, it is, at 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.”

   Earlier in their judgment, the Court decided that where the accused was charged with only one offence, either larceny or receiving, then that charge must be proved as it is laid.  The jury must be satisfied beyond reasonable doubt about that charge and the charge is not proved if the evidence shows no more than that the accused is guilty either of the offence charged or of some other offence with which he is not charged. 

9. In Gilson v R (1991) 100 ALR 729, the High Court considered the direction that a trial Judge should give when a person is charged with both larceny and receiving and the prosecution case depended upon circumstantial evidence, which may lead to a conclusion that there are equal inferences to be drawn from the evidence that the accused was guilty of either larceny or receiving, but it is not possible to determine beyond reasonable doubt which of those offences the accused has committed.  Mason CJ, Dawson and Toohey JJ, in a joint judgment, referred to the decision in Dawson’s case and confirmed that before an accused can be found guilty, the jury must be satisfied beyond reasonable doubt of his guilt of the offence.  They concluded that in the circumstances where larceny and receiving are charged in the alternative and the jury conclude beyond reasonable doubt that the accused committed one or other, then the trial Judge should direct the jury to return a verdict of guilty of the less serious offence.  It is for the trial Judge to direct the jury which of the two is the less serious in the circumstances of the case.  It follows from the decision of the High Court in Gilson that if the prosecution charge only one of the two offences, either larceny or receiving, then the prosecution must prove all the elements of that offence beyond reasonable doubt.  If the jury conclude that the evidence points to either larceny or receiving and they are satisfied beyond reasonable doubt the accused committed either larceny or receiving, but they are not able to conclude which offence he has committed, then it follows that they cannot be satisfied beyond reasonable doubt that the accused has committed the offence charged and they must acquit.

10. Mr Aitken submitted that that is the position in the case at bar and I should therefore find no case to answer and direct the jury accordingly. 

11. Mr Heffernan submitted that the question of whether there are equal inferences to be drawn from the evidence, is not a question to be determined by the Judge but it is a matter for the jury.  He submitted that the test to be applied in respect of a submission of no case to answer is, that if the evidence is capable of producing, in a reasonable mind, a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypothesis as unreasonable, there is a case to answer.

12. In Question of Law Reserved on Acquittal (No. 2 of 1993) 1993 61 SASR page 1 at page 5, King CJ considered the test to be applied by a Judge in respect of a submission of no case to answer.  The learned Chief Justice referred to the decision of R v Billick (1984) 36 SASR 321, which was a case of circumstantial evidence.  His Honour referred to a passage from the judgment of Mohr J at page 335 in Billick’s case.  He then said :

    “It follows from the principles as formulated in Billick (supra) 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 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) (1983) 2 VR 410; Thorp v Abbatto (1992) 34 FCR 366. He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypotheses as not reasonably open on the evidence.”

13. 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.

14. Mr Aitken further submitted that there was no evidence or there was insufficient evidence upon which the jury could conclude that the accused was in possession of the items, the subject of the various counts.  In my view, if the jury were to conclude that the accused was part of a joint enterprise with Mather to receive stolen goods and they had a common purpose and that the accused acted in furtherance of that common purpose, then it would be open to the jury, in respect of each count, to conclude beyond reasonable doubt that the accused was in possession.  Again, in my view, it is ultimately a question for the jury.  I consider that there is sufficient evidence upon which a reasonable jury could be satisfied beyond reasonable doubt that the accused was in possession of the items, the subject of the various counts.  It follows that I reject the submission of no case to answer.