R v BASLIS - [2011] SASCFC 160

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BASLIS
[2011] SASCFC 160
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Stanley)
21 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - PROCEDURE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - CLAIM OF RIGHT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction – appellant tried for two counts of theft – prosecution alleged that the appellant played a role in a scheme designed to deal with stolen cars by modifying them – appellant acquitted on first count and convicted on second count – whether trial judge adequately directed jury on elements of theft – whether judge required to give directions in terms of a claim of right as provided in s 131(5) and (6) Criminal Law Consolidation Act 1935 (SA) – whether judge required to direct jury that before returning a verdict of guilty they must reject the appellant’s version of events beyond reasonable doubt – whether judge presented defence case adequately to the jury – whether judge required to direct jury that a finding of not guilty on one count could be considered in evaluating the other count – whether verdict unreasonable or could not be supported having regard to the evidence.
Held: Vanstone J (Anderson and Stanley JJ agreeing) appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134, s 131(1), s 131(5), s 131(6), referred to.
R v Miller (2008) 103 SASR 174, applied.
R v Daniel [2010] SASCFC 62; R v Calides (1983) 34 SASR 355, distinguished.
R v Phan & Ton (2010) 108 SASR 260, discussed.

R v BASLIS
[2011] SASCFC 160
Court of Criminal Appeal: Vanstone, Anderson and Stanley JJ

VANSTONE J: The appellant stood trial in the District Court before a judge and jury upon an information charging him with two counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (the Act). Each charge alleged theft of a motor vehicle which had been taken from a vehicle retailer in Adelaide in the period September to November 2008. The prosecution alleged that the appellant played a role in a scheme designed to deal with cars stolen from that business and to modify them for his own or for someone else’s use. He was found guilty only on the second count.
He now appeals, with permission, against his conviction arguing that the directions to the jury going to the offence of theft were flawed; that they were not adequately linked to the evidence; that there were defects in other directions concerned with proof of the charge; that the judge failed to put the defence case adequately and that the verdict is unreasonable.
Background
It was proved before the jury that both the Mitsubishi Outlander motor vehicle the subject of count 1 (car 1) and the Mitsubishi Express van (car 2) the subject of count 2 were stolen from Agostino Mitsubishi Motors in Adelaide between 7 September and 11 November 2008. The first charge was based on the appellant’s admitted conduct in playing a role in registering car 1 in the name of Giuseppe Panzarino. He and Panzarino attended for that purpose with the vehicle at the Regency Park premises of the Department of Transport. The appellant’s name and driver’s licence were used to register the vehicle. The appellant’s explanation for that conduct, given both in interview with police and in evidence, was that he inserted his name on the relevant documents at the prompting of the vehicle inspector because Panzarino was not the holder of a driver’s licence. He told police that he did not really know Panzarino, but that he had met him at a friend’s house (later described as the Liberty Workshop on Henley Beach Road). Panzarino had needed a ride to the Regency Park premises “to get the car complianced”. He was happy to oblige. Because Panzarino did not have a driver’s licence the inspector said that the transaction could not be processed. The inspector suggested that if he, the appellant, had a licence he could sign the documents and the transaction could be completed. That is what he did. He said he had had no contact with Panzarino since.
The basis of the case against the appellant on the second count was that car 2 was located inside a large shed in the back yard of his home, among other vehicles. A number-plate had been affixed to the rear of the vehicle. It was a number-plate which had come into the appellant’s possession several years previously. He said when interviewed that he had taken possession of car 2 from a person whose name he did not know, so that he could “fix some racks” to it and install a reversing camera. He said he had met that man through the Liberty Workshop. In evidence he said that man’s name was “George”. He said he had only had possession of car 2 for a couple of days prior to police attending at his home. When asked in interview why car 2 bore a registration plate from a car formerly registered to him, the appellant said he did not know and that he had not placed the registration plate on car 2. He explained in evidence that when he had, some time before, removed number-plates from a Statesman sedan he had purchased, he had placed them in the tray of his Nissan utility. He could not recall what happened to them after that. He said the utility was used by persons at the Liberty Workshop as a runabout. The inference promoted by the defence was that someone else, possibly George, must have taken the number-plates and, for their own reasons, fixed one of them to car 2.
Arguments on the appeal
I turn then to the grounds of appeal. Ground 1 was abandoned during the appeal hearing and need not be further mentioned.
Grounds 2 and 3 raise the adequacy of the directions given to the jury on the elements of theft. It is convenient to deal with them together. Insofar as there is a complaint that the judge failed to identify those aspects of the appellant’s evidence going to the disputed elements, I shall deal with that in the context of ground 6 which complains of a failure to put the defence case adequately.
Section 134 of the Act creates the statutory offence of theft. Section 131 of the Act provides the definition of “dishonesty”. There are variations from the common law position. It will be necessary to refer to the specific terms of both sections.
131—Dishonesty
(1)     A person's conduct is dishonest if the person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting.
(2)     The question whether a defendant's conduct was dishonest according to the standards of ordinary people is a question of fact to be decided according to the jury's own knowledge and experience and not on the basis of evidence of those standards.
(3)     A defendant's willingness to pay for property involved in an alleged offence of dishonesty does not necessarily preclude a finding of dishonesty.
(4)     A person does not act dishonestly if the person—
(a)finds property; and
(b)keeps or otherwise deals with it in the belief that the identity or whereabouts of the owner cannot be discovered by taking reasonable steps; and
(c)is not under a legal or equitable obligation with which the retention of the property is inconsistent.
(5)     The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way.
Example—
A takes an umbrella violently from B honestly but mistakenly believing that B has stolen A's umbrella and that A is entitled to use force to get it back. In fact, it belongs to B. A is charged with robbery. A cannot be properly convicted on this charge because of his honest but mistaken belief (however unreasonable). However, he may still be guilty of an assault.
(6)     A person who asserts a legal or equitable right to property that he or she honestly believes to exist does not, by so doing, deal dishonestly with the property.
Example—
A takes an umbrella violently from B honestly believing that the umbrella belongs to A and that A is entitled to possession of the umbrella (but knowing that she is not entitled to use force to get it back). The assertion of that possessory right (whether or not correctly founded in law) is not dishonest (and therefore cannot amount to theft) although the means used to get the umbrella back may well amount to some other offence.
134—Theft (and receiving)
(1)     A person is guilty of theft if the person deals with property—
(a)dishonestly; and
(b)without the owner's consent; and
(c)intending—
(i)to deprive the owner permanently of the property; or
(ii)to make a serious encroachment on the owner's proprietary rights.
Maximum penalty: Imprisonment for 10 years.
(2)     A person intends to make a serious encroachment on an owner's proprietary rights if the person intends—
(a)to treat the property as his or her own to dispose of regardless of the owner's rights; or
(b)to deal with the property in a way that creates a substantial risk (of which the person is aware)—
(i)that the owner will not get it back; or
(ii)that, when the owner gets it back, its value will be substantially impaired.
(3)     It is possible to commit theft as follows:
(a)a person may commit theft of property that has come lawfully into his or her possession;
(b)a person may commit theft of property by the misuse of powers that are vested in the person as agent or trustee or in some other capacity that allows the person to deal with the property.
Example—
Suppose that land is vested in a trustee in a fiduciary capacity. She is empowered under the instrument of trust to mortgage the land for the purposes of the trust. The trustee dishonestly mortgages the land as security for a personal liability that is unrelated to the trust. In this case, the trustee commits theft of the interest created by the mortgage.
(4)     If a person honestly believes that he or she has acquired a good title to property, but it later appears that the title is defective because of a defect in the title of the transferor or for some other reason, the later retention of the property, or any later dealing with the property, by the person cannot amount to theft.
(5)     Theft committed by receiving stolen property from another amounts to the offence of receiving but may be described either as theft or receiving in an instrument of charge and is, in any event, punishable as a species of theft.
(6)     If a person is charged with receiving, the court may, if satisfied beyond reasonable doubt that the defendant is guilty of theft but not that the theft was committed by receiving stolen property from another, find the defendant guilty of theft.
Mrs Shaw QC, for the appellant, argued that in directing on what is dishonesty the trial judge omitted to give a direction to the jury in terms of s 131(5) to the effect that an honest but mistaken belief in a right to act as the appellant did would not be dishonest. It was further argued that the judge erred in failing to give a “claim of right” direction in accordance with s 131(6). Such considerations would arise, counsel put, if the jury entertained the reasonable possibility that the appellant had come into possession of car 2 in the way he said, that is, from George, for the purpose of modifying it, for reward, and with no reason to doubt that George was either the owner, or otherwise entitled to possession of it.
Counsel also pointed to the fact that when dealing with the meaning of “serious encroachment” (s 134(1) and (2)) the trial judge mistakenly told the jury at one point that an intention to deal with the property in a way that creates a risk (as opposed to a substantial risk) would suffice. Then, it was said, the judge failed to direct the jury that any such risk had to be proved to be one of which the appellant was aware: s 134(2)(b). There was a further complaint (ground 4) to the effect that in giving directions about the number-plate and the shirt, the judge failed to state how a finding contrary to the appellant’s evidence would bear on any particular element of the offence.
I do not agree that the judge wrongly omitted any direction of law in terms of s 131(5) or (6). Section 131(5) provides that conduct in pursuit of an honest but mistaken belief in a legal or equitable right is not dishonest. Section 131(6) preserves the entitlement to make a claim of right.
Sub-sections 131(5) and (6) can only be relevant where a defendant knowingly acts or deals with property in a way which is objectively dishonest, but does so having an honest and mistaken belief that he has a legal or equitable right to act in that way, or having an honest belief that he has a legal or equitable right to so deal with the property. In the circumstances of this case, there was no view of the facts which could provide a basis for the application of either sub‑section. The appellant’s defence was that because he was unaware the vehicle was stolen he had not acted dishonestly according to the standards of ordinary people: s (131)(1). In other words, the defendant’s explanation contested the allegation that he had acted with the knowledge that would have made his actions dishonest. As the defendant gave no further or other reasons for his belief that he was entitled to deal with car 2, there was no room for the operation of either s 131(5) or s 131(6). Those sub-sections had no work to do. Accordingly, had directions along the lines of sub-sections (5) or (6) been given, they would have been otiose. The fact that Parliament has restricted the ambit of s 131(1) by sub-sections (5) and (6) does not require a trial judge to direct upon them in every case. Only if there is a particular facet of the facts which gives rise to the potential for either sub‑section to apply need a trial judge direct upon them: R v Miller (2008) 103 SASR 174 at 180-181.
The argument that an error of law was made in respect of the omission to define serious encroachment correctly is a barren one. Plainly, if the jury were satisfied that the appellant knew car 2 was stolen when he effected modifications to it, then that would amount to a serious encroachment on the owner’s proprietary rights. In the context of this case, the omission on one occasion out of three, when reference was made to the risk of the owner not getting back the property or its value being impaired, to mention the adjective “substantial” could not have had any impact.
The judge did not say, in as many words, that the appellant had to be aware that his dealing with the car created such a risk: s 134(2)(b). However he did say:
The fourth element is that in dealing dishonestly with the vehicles, the accused intended either to: deprive the owner permanently of the property or; to treat the property as his, to dispose of regardless of the owner’s rights or, thirdly, in the alternative, to deal with the property so as to create a substantial risk that the owner will not get it back.
What the prosecution was putting to you, in the case of count 1, what was happening was redesignated ownership of the vehicle in order to avoid detection of its theft and, count 2, that what was being done by altering the vehicle was a step in the direction of, I will just call it, “re-badging” or “reassigning” the vehicle in order to avoid detection.
In the face of these directions the jury could have been in no doubt as to what was required by the element of intention. In this case everything turned on proof that the appellant knew the vehicles were stolen. If he did, then plainly his conduct against that knowledge showed an intention to either deprive the owner permanently or to make a serious encroachment on the owner’s proprietary rights.
As to ground 4, I would say the following. The judge chose to give a circumstantial evidence direction in this case. I am far from persuaded that one was necessary, since the evidence connecting the appellant with both alleged crimes was direct. True it is that the jury was asked to draw inferences on the basis of that evidence but that is not the determining factor. In any event, in giving the circumstantial evidence direction the judge made particular reference to two items of evidence, namely the number-plate and the shirt bearing the name “George”. Clearly, the number-plate was a critical item of evidence. The judge told the jury it would have to be satisfied beyond reasonable doubt that the number-plate was placed deliberately on car 2 by the appellant, before that item of evidence was used by it in its deliberations. In effect, the judge told the jury that this was an indispensable link in the chain of proof. In my view the direction was unnecessary and unduly favourable to the appellant. Mrs Shaw’s complaint is that the judge did not go on to elaborate on how the jury might use a conclusion that the appellant affixed the number-plate to car 2 – that is to what element it related – and that he told the jury that such a finding would be a sufficient basis for a finding of guilt.
I do not think there was any requirement to elaborate on the use against the appellant that might be made of the number-plate. If the jury was satisfied that the appellant affixed the number-plate to the vehicle knowing that it was stolen then that was clear evidence of both dishonesty and the intent to make a serious encroachment on the owner’s proprietary rights. So much was obvious. I do not agree that the judge implied that this item of evidence could, by itself, prove guilt. The judge specifically directed that it was the combined strength of all the evidence that had to be considered. He used the number-plate as an example of a fact requiring proof beyond reasonable doubt before it could be used as a “circumstance providing an inference of guilt”. I do not see that as a misdirection.
Ground 5 embodies a complaint that the judge omitted to direct the jury that before finding any element of the offence proved the appellant’s version must be rejected beyond reasonable doubt. The decision of this Court in R v Daniel [2010] SASCFC 62 was cited. In that case the complaint was that the jury was misdirected as to the onus of proof. That is not the situation here. Plainly the evidence of an accused person must be taken into account by the jury, along with that of any defence witnesses. However, general directions as to the onus and standard of proof and as to the elements of the relevant offence will generally ensure that the jury understands the task which confronts it. There is no general requirement to instruct the jury that before finding the elements proved it must reject the defendant’s evidence. The well-known decision in R v Calides (1983) 34 SASR 355 flowed from the way the trial judge had expressed himself, which invited the jury to choose between the two competing versions, and therefore undermined the directions on the burden of proof. That situation did not arise in the present case. Anyway, here the jury was told more than once that it would have to find beyond reasonable doubt that the appellant had actual knowledge that each vehicle was stolen before it could proceed to conviction. As I have said that was the critical issue.

Ground 6 complains that the judge failed to present the defence case adequately. In R v Phan & Ton (2010) 108 SASR 260 I encapsulated in general terms the duty upon a trial judge to put the defence case. I mentioned a number of the main authorities which deal with this topic. In that case, White J and Kelly J joined in my reasons. I reproduce the relevant paragraphs:
39The principles concerning the duty to put the defence case emerge from a number of cases decided in this jurisdiction, in the New South Wales Court of Appeal and in the High Court. I draw the following principles from R v Lavery No 2 (1979) 20 SASR 430, 444-446 per Wells J; R v Von Einem (1985) 38 SASR 207, 216 per King CJ; R v Perks (1986) 43 SASR 112, 115-117 per King CJ; R v Whittingham (1988) 49 SASR 67, 69-70 per King CJ; Reg v Veverka (1978) 1 NSWLR 478, 480-482 per Street CJ; Domican v The Queen (1992) 173 CLR 555, 560-1.
40The extent of the duty upon a trial judge to put the defence case can be described in general terms. However the obligations cast will vary from case to case depending on the length and complexity of the legal issues, the way in which the issues have been crystallised both during the evidence and in counsel’s addresses, and the structure of the summing up. In principle, the trial judge must fairly and impartially put the defence so that the jury is fully apprised of the challenge mounted to the prosecution case, both in the course of the evidence and argument.
41That duty will involve stating the substance of the defence case and explaining its bearing on the legal issues. Generally speaking, fulfilment of these requirements would lead the judge to refer to the crucial parts of the evidence of the accused (if any) or to his explanation given in interview or otherwise. In many cases the encapsulation of the defence case would be found in an identifiable part of the summing up. But in other cases, particularly long and complex matters, it may be preferable to deal with both prosecution and defence cases on an issue by issue basis.
42However, a judge is not obliged to read, or to refer in detail to, evidence called by the defence and is not obliged to repeat all the arguments of defence counsel.
43Where the prosecution evidence is lengthy and the defence does not present evidence, there will necessarily be a disparity in the time taken to put each case adequately.
44If the judge desires to make his or her own observations as to aspects of the defence, that should be done in a separate part of the directions.
The present evidence was completed in less than four days and the summing up occurred on the following Monday morning. Early in his summing up the judge reminded the jury of the appellant’s evidence, which involved putting the essence of the appellant’s explanation for his dealings with the two vehicles. The judge also summarised the evidence of the two witnesses called by the appellant – going to the sequelae of a head injury suffered by him some years earlier – and its effects on his cognitive powers and personality. Dr Davis, a psychiatrist, gave evidence which included the opinion that the appellant might be vulnerable to suggestion by others. The judge explained the relevance of that evidence. In addition, the judge made various references to the appellant’s interviews with police, which contained an exculpatory account of his dealings with the two vehicles in similar, although less detailed, terms than his evidence.
All in all, I consider that the defence case was fairly put to the jury. The facts of the case did not involve any particular complexity. The very fact that the jury acquitted of count 1 and found the appellant guilty of count 2 – which was by far the stronger case – demonstrated that it understood the thrust of the prosecution and defence cases.
In my view this ground is not made out.
Ground 7 complains of a failure to direct the jury that a finding of not guilty on one count could be considered when determining whether the other count was proved. In fact, the jury was told on more than one occasion that each charge had to be the subject of separate consideration. The judge said there were two exceptions to this: first, the jury was entitled to consider the coincidence of two vehicles stolen from the same premises being in the appellant’s possession, and secondly, that a finding of guilt on one count could be used on the other count as relevant to proof of dishonest intention. In my view both directions were correct. The direction for which ground 7 contends would not have been correct. It is hard to see what use the jury could have made of its failure to be satisfied of count 1 when it came to consider count 2. This is not a case where the failure to be satisfied of, say, a rape victim’s evidence going to one count could have consequences in the evaluation of the same witness’s evidence going to other counts. In my view the ground is misconceived.
Ground 8 complains that the verdict “is unsafe, unreasonable and against the weight of the evidence”. Among the complaints made are that the verdict of guilty on count 2 was inconsistent with the acquittal on count 1. As I have observed, there was a marked difference between the quality of proof going to the two counts. The case on count 2 was plainly a stronger one. Since the jury was specifically told that the counts needed to be evaluated separately (with the two qualifications I have mentioned) it was plainly entitled to render different verdicts. The fact that the jury returned the acquittal on the first count demonstrates, in my mind, the close analysis to which the evidence on count 1 must have been subjected.
The fact that the number-plate, the property of the appellant, was affixed to the back of car 2 was potent evidence implicating him in the theft. His denial of being responsible for it and his explanation of how it might have come to be there were, in my view, entirely unconvincing.
As I have already observed, the case against the appellant was straightforward. Neither his interviews with police nor his evidence reads in a convincing manner; and I say that having due regard to the evidence of the two experts whom he called.
Having assessed the matter as a whole, I have no misgivings about the verdict on count 2.
Conclusion
None of the appeal grounds has been made good. I would dismiss the appeal.
ANDERSON J: I agree that the appeal should be dismissed for the reasons given by Vanstone J.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Vanstone J.