R v Burns

[1989] TASSC 137

Serial No B59/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Burns [1989] TASSC 137; B59/1989

PARTIES:  R
  v
  BURNS

FILE NO:  C283/1989
DELIVERED ON:  19 December 1989
JUDGMENT OF:  Crawford J

Judgment Number:  B59/1989
Number of paragraphs:  21

Serial No B59/1989
File No C283/1989

THE QUEEN v BURNS

REASONS FOR JUDGMENT  CRAWFORD J

19 December 1989

1. The prisoner has pleaded guilty to one count of burglary and one count of stealing. The allegations are that he[i] trespassed on the premises of St Helens Seafoods Pty Ltd at St Helens with intent to steal and stole from those premises 345½ boxes of assorted frozen fish to a total value of $56,778. He has admitted his guilt to both charges but disputes the amount and consequent value of the fish stolen. For the purposes of deciding the appropriate sentence it was therefore necessary for me to receive evidence.

1. The evidence satisfies me that on 26 September the prisoner in company with another person, who he said was one Paul Wilkinson, went to a Launceston service station which carried on the business of hiring out vehicles. He remained silent while Wilkinson arranged the hire of a Toyota Hi Ace van.

1. The premises of St Helens Seafoods Pty Ltd were closed and locked at about 5pm on 27 September 1989 and sometime between then and shortly before 7am the next morning, seafood was stolen by the prisoner, presumably in company with Wilkinson and with the use of the van. The Crown allege that 345½ boxes, weighing about 3.4 tonnes and having a volume in excess of 8 cubic metres, were stolen. However, the cubic capacity of the van was no more than 6.3 cubic metres and its maximum weight bearing capacity was 2.04 tonnes. It was agreed as a fact that with that much weight on board the van would have been difficult to manoeuvre and hard to handle. It is therefore clear that if the amount of seafood alleged by the Crown to be stolen was removed by the prisoner in company with at least one other, he either made two trips to the premises with the van or at least one other vehicle was involved at the time.

1. The evidence of the prisoner was that he went with Wilkinson to the premises and after they broke into the freezers, they removed no more than 12–14 boxes containing crayfish tails, crayfish and prawns. They then returned to Launceston and made efforts to sell what they had. When being interviewed by the police the prisoner said that included in what they stole were about 4 boxes of prawns. He said they did not want them and so threw them away at Duck Reach. They were in fact recovered from there by the police. The prisoner also told the police that he had sold a crayfish but nothing else had been sold.

1. If the prisoner is telling the truth then either St Helens Seafoods Pty Ltd has attempted to commit a fraud on its insurer by claiming that a substantial quantity of seafood was stolen or some other person or persons, unconnected with the prisoner, entered the premises on the same night as him but earlier and stole about 330 boxes of frozen seafood, re–locking the freezers afterwards. The latter possibility is so unlikely as to be ridiculous.

1. For me to find that the prisoner did steal approximately 345½ boxes of seafood instead of approximately 12–14 boxes as admitted by him, I must be satisfied of that beyond reasonable doubt: Nash v Haas [1972] Tas SR 1; Smith v The Queen [1979] Tas R 311 (NC), unreported 48/1979.

1. Evidence was given by Mr D. G. Burn, an employee of the company, that he conducted a stock–take on 31 August 1989 which indicated that there were 204 boxes of lobster weighing 2040 kilograms and other quantities of seafood. Evidence was also given by the company's supervisor, Mr R. A. Reid, to the effect that at about 6.50am on 28 September he found that someone had broken into the premises. He carried out a stock–take later that day and it disclosed no lobster. Neither Mr Burn nor Mr Reid were able to say what was in the freezers at the time of the break–in as they had not been into them for some time.

1. An accountant, Mr Dawkins, conducted a reconciliation[ii]. He used Mr Burn's stock–take and Mr Reid's stock–take. He also examined the company's fish weight receipt dockets (recording purchases of fish) and the company's invoice statements (which recorded sales). He prepared a reconciliation which revealed that the amount of stock allegedly missing was, according to the books, in fact missing. It also highlighted that the August stock–take of Mr Burn showed an excessive amount of orange roughy.

1. I have no reason to doubt the evidence of Mr Burn or Mr Reid. They impressed me as apparently honest in what they said. Mr Dawkins's evidence is accepted by me. It was not attacked in any way.

1. One of the directors, and the manageress of the company, Mrs McDonald, gave evidence. She appeared truthful when she gave evidence. She was telephoned at her home about the burglary and arrived at the premises at about 8am She said that the day before the burglary the shop freezer was packed high with export cartons of lobster. There were boxes of trevalla, crayfish tails and prawns. Following the burglary that freezer was virtually empty. She had last been in it on the day prior to the burglary. There was another freezer, referred to in evidence as the no. 1 freezer. She had not been in it for 4 or 5 days. It had contained orange roughy (none of which has allegedly been stolen) and morwong (100 boxes are alleged to have been stolen).

1. The business records produced verify a considerable amount of missing stock. Mr Reid's stock–take immediately following the burglary reveals substantially less stock than would have been expected from the records. Not only that, a comparison between the stock–takes of 31 August and 28 September suggests that the company had a substantially depleted stock on the later date. For example, the 31 August stock–take revealed 2040 kilograms of lobster and 1000 kilograms of morwong, whereas the stock–take of 28 September showed no lobster and no morwong. The company's records produced to the court do not account for this missing stock.

1. Although it is possible I consider it unlikely that the prisoner and one other went to the lengths of hiring a van and then travelled all the way to St Helens to steal seafood, probably a large quantity of crayfish, unless they had previously arranged for the disposal of it. It was frozen and it would thaw quickly. Speedy disposal was necessary.

1. The allegation that 345½ boxes had been stolen had been made by the time the police interviewed the prisoner at 8.30pm on 28 September. How then is the company attempting to perpetrate a fraud on its insurer, as suggested by the prisoner? No particular method was suggested by counsel. On the basis of the prisoner's story lobster and morwong were simply not there. He and Wilkinson broke the locks on the freezers and so no–one had broken into them earlier that night. If the company is attempting to perpetrate a fraud then the stock must have been missing from the freezers prior to the night of the burglary. According to the records 810 kilograms of lobster worth $30,212 is missing, as is 1000 kilograms of morwong worth $5,145 and other items. If not stolen it must have been disposed of by the company without the disposal being recorded in the invoice statement book, which is unlikely.

1. The prisoner only admitted to stealing the few boxes found in his possession by the police plus the prawns and 8 crayfish, 12–14 boxes in all being involved. He told the police that he and Wilkinson had discussed making the trip to St Helens. He said that "we just needed some money because Wilky isn't on the dole", and Wilkinson said that he knew where to steal some crayfish from St Helens Seafoods Pty Ltd where he had once worked. The prisoner himself was an unemployed 19 Year old. It is difficult to believe that these two unemployed men hired a van at some expense ($260 was paid for the hire when the van was returned) with a weight bearing capacity of 2.04 tonnes and drove all the way to St Helens and stole only 12–14 boxes, leaving behind, according to the evidence, 2 boxes of crayfish, 78 boxes of orange roughy, 15 boxes of trumpeter and 78 boxes of trevalla. The hiring of the van suggests that they in fact intended to steal a considerable quantity of seafood for which it would be expected they had arranged a market.

1. The evidence of Mr Burge satisfies me that the van travelled 800 kilometres while in the custody of the prisoner and Wilkinson. The evidence suggests that the round trip to St Helens was 400 kilometres and the prisoner gave evidence for the purpose of accounting for the balance of 400 kilometres. It is clear that after the burglary they drove to a number of premises in  Launceston trying to sell some crayfish including, at least once and possibly twice, an attempt to sell at Hadspen. But these endeavours did not account for the extra 400 kilometres of travel. His evidence went further however to detail driving of the van on 26 and 27 September after it was hired at about 4pm On 26 September and before it was driven to St Helens in the early hours of 28 September.

1. The prisoner was an unimpressive witness. He appeared to be avoiding the giving of details. The events he was relating occurred only two months earlier yet the clarity of his recollection appeared poor. There were inconsistencies in his evidence. I also found it difficult to believe that these two unemployed youths drove a hired van of that size for general purposes such as visiting relatives, playing indoor cricket and two occasions of fishing at Bell Bay, in less than 24 hours as claimed by him.

1. The evidence of the prisoner concerning the fishing trips was unsatisfactory. The first trip he referred to was on the night of 26 September. He said it was dark when they went to and returned from Bell Bay, and when they fished off the wharves. He said that on the next day, 27 September, they went to Bell Bay again, after lunch when it was daylight. He said that on the second occasion they caught 6 cod and gave them to a couple of young fellows who were on the wharves. However, in crass–examination, the story changed. He said that the six fish were caught the night before and given to a couple of kids. He said on 27 September they caught a couple of cod and just left them because they did not want them. One of those two trips was in the dark of night and the other in broad daylight. I was left believing that he was untruthful about those trips. It might be understandable that a person would get two trips confused if they both occurred at night or both occurred during the day. But in the circumstances of one being at night and one during the day, I found most unsatisfactory that at one moment in evidence he was saying that it was during the daytime trip 6 cod were given to two young fellows and a little later he was saying that it was during the night–time trip.

1. There was another matter relevant to credit which influences me to disbelieve the prisoner. I believed the evidence of Mr Burge that the prisoner. was present, not only when the van was  hired out but when it was returned. The prisoner said that Wilkinson returned it without him and I did not believe him.

1. The prisoner also initially said in cross–examination that he did not use protective clothing such as gloves thereby, it seemed to me, to be giving the impression that the trip to St Helens was not well planned for the purpose of taking a substantial amount of seafood. When it was asked whether or not any steps were taken to guard against leaving fingerprints, he appeared to change his story and said that he did not know whether he was wearing gloves, but he might have been. I was left with the strong impression that he was being untruthful concerning his memory of whether he was wearing gloves.

1. He was also cross–examined about the sale of 8 crayfish. He said the sale was for $50 but later said that it was roundabout that figure. He said that he sold the crayfish to a man who was at his sister's home, but he did not know who he was. He said that when he arrived at his sister's home present were his sister, Wilkinson, a man (he said not the one who purchased the crayfish) and himself. He was not introduced to the unknown man. He said that Wilkinson went away and another man arrived, he being the owner of a utility, but he was not the one who purchased the crayfish. He then said that the one who purchased the crayfish wee the man who was there when he first arrived. This conflicted with what he had said only a few minutes before.

1. I will not deal further with the evidence in detail. The prisoner was most unsatisfactory as a witness. At best he had a poor memory and was lacking in clarity in relation to important matters which had occurred only two months earlier. Being as I am totally unconvinced by the veracity of the prisoner as a witness, I am left being satisfied beyond reasonable doubt that he was responsible, along with at least one other person, for the theft of approximately 345½ boxes of seafood as alleged. I am unable to say from the evidence whether the van hired by him and Wilkinson made more than one trip to the premises. If it did not then another vehicle must have been involved. I am satisfied however that the van travelled at the very least 250 kilometres more than has been satisfactorily explained by the evidence.

tasinLaw edit: the judgment has "that the he".

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tasInLaw edit: the judgment has "reconcilation"

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