R v Daniel

[2001] QCA 358

[2001] QCA 358

COURT OF APPEAL

THOMAS JA
WILLIAMS JA
WHITE J

CA No 102 of 2001

THE QUEEN

v.

ROMAN DANIEL

BRISBANE

..DATE 03/09/2001

JUDGMENT

THOMAS JA:  This is an application for an extension of time in which to appeal against a conviction of receiving stolen property.  The applicant was convicted on 10 November 2000 by a jury after a trial in the District Court of Townsville.  He was sentenced to 10 months' imprisonment, to be released after serving four months.  He was released on bail pending the appeal on 12 February 2001. 

The indictment that was presented against him contained two alternative counts.  Firstly, he was charged with breaking and entering premises and stealing and, alternatively, he was charged with receiving stolen property, namely a Mitsubishi television and a Yamaha stereo.  The jury acquitted him of count one but convicted him upon count two. 
However, the applicant had been already convicted, in substance, of receiving property that includes the same property upon a summary charge under section 25 of the Vagrants, Gaming and Other Offences Act. He had been charged that "he had in his possession property, namely a quantity of electrical items, a quantity of telephones and a quantity of tools suspected of being stolen or unlawfully obtained." The property in question was never particularised in the Magistrates Court. The Magistrate found the applicant guilty. A perusal of the transcript discloses that the property that had been seized and about which evidence was given, included the Mitsubishi television and the Yamaha sound system. The Magistrate's decision included the following statement: "The property includes 16 mobile phones, a Mitsubishi TV, a Yamaha stereo, et cetera." It therefore appears that during the summary proceedings, the property which is in issue in the District Court was a subject of the charge.

When the matter was called on in the District Court, no issue was brought forward under section 16 or section 17 of the Criminal Code.  However, Mr Campbell who appears for the Crown on this appeal concedes that an issue under section 16 is certainly raised on the material.  For my part, I would reserve the question whether an issue under section 17 might also be raised.  Mr Campbell has pointed out that the learned trial Judge's summing up includes the following statement: 

"Now, the mere possession of that which is similar to the thing which has been stolen would not, of itself, been sufficient to justify a conviction.  But on the other hand, if a similar thing is found under circumstances which make a connection between it and the thing supposed to have been stolen, in a way to make it reasonably probable that it is the same thing, then the conclusion that it is the same thing is one which you, the jury, are at liberty to arrive at. 

This is so, even though there may only be mere similarity in the things themselves.  All the circumstances can be taken into account.  The circumstances could include how the goods were found and where they were found.  Any explanation, of course, given by the accused in relation to the goods is, of course, something which can also be taken into account. 

When we are addressing the subject of whether they were Mr Byron's goods, and on either case, they were goods in the possession of the accused within a short time of the alleged commission of the offence, he did describe two identifying features, one in relation to each item, which you will recall.  So, you look at those circumstances and ask yourself the question "Do the circumstances disclose a reasonable probability that the things found in the possession of the accused were the things stolen from Mr Byron?""

It is conceded that the above passage contains an error in that the jury were not instructed that they ultimately had to be satisfied beyond reasonable doubt that the property was stolen, and of course, also that the property in the possession of the accused was the same property as that which had been stolen.

I would add that the Crown case on count 1, breaking and entering, would seem to have been extremely tenuous at best.  No evidence was called to associate the applicant with the complainants premises, so the jury's acquittal on that matter was hardly surprising.

We do not need to consider the question whether the conviction on the summary offence would justify setting it aside, as distinct from merely setting aside the sentence and removing any component of punishment from the orders, as was done in The Queen v. Kiripatea [1991] 2 Queensland Reports 686.  The conceded errors in the summing up are sufficient to require the setting aside of the conviction, and the Crown does not seek any retrial.  I would add, however, that this seems to be a case, broadly speaking, of an accused person being placed in double jeopardy in respect of substantially the same act or omission.

So far as the application for leave to extend time is concerned, it seems that the applicant believed that the notice of appeal had been lodged within time.  The delay is short and the merits are obvious. 

In those circumstances, the Court will grant the necessary extension of time.

The orders that I propose are that the applicant be granted an extension of time for lodging his notice of appeal against conviction to the date when the notice of appeal was actually received by the registry.  The appeal should be allowed.  The conviction on count two should be set aside and an acquittal should be entered.

WILLIAMS JA:  I agree.

WHITE J:  I agree.

THOMAS JA:  Those are the orders of the Court. 

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