R v Graham

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v GRAHAM
[2011] SASCFC 52
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Kourakis)
10 June 2011
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY AND LIKE OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
The appellant was found guilty by a jury on a charge of ‘going equipped for an offence against property’, contrary to s 270C of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The police found the appellant in a vehicle with a male passenger, in suspicious circumstances, in possession of a jemmy bar, two screwdrivers, a torch and a notebook containing a list of addresses. It was the prosecution’s case that the appellant intended to use those articles to commit the offences of serious criminal trespass and theft. The issues on appeal were whether: (1) it was open to the jury to conclude, as the trial Judge told them they could, that the appellant intended to use the notebook to commit the offence; (2) a direction that the Judge gave relating to joint criminal enterprise was either wrong or misleadingly confusing; and (3) the trial Judge erred in giving a direction relating to the use that could be made by the jury of evidence about other items not referred to in the particulars, but were alleged by the prosecution to be in the possession of Ms Graham at the time of the offence.
Held (Doyle CJ, David and Kourakis JJ):
(1) The trial Judge erred in the course of his direction on the use of the notebook. Section 270C of the CLCA requires proof that the defendant intended to use the article in question, in the sense of employing it, once the commission of the postulated or alleged offence in question has begun. Using the notebook to obtain or record places or addresses where an offence is to be committed, and to guide the defendant and her partner to the place where the offence was committed, was not to use the notebook to commit the offence. Despite this error of law, the findings made by the jury to arrive at its verdict assisted the conclusion that the offence was proved beyond a reasonable doubt in relation to the screwdrivers and torch. Therefore, there was no substantial risk of a miscarriage of justice in relation to the direction as to the use of the notebook as the offence was otherwise proved.
(2) Aspects of the trial Judge’s directions regarding joint criminal enterprise were not appropriate to the circumstances of the case. However, considering the directions as a whole, it could not be said that there had been a substantial miscarriage of justice in the circumstances.
(3) The jury would have understood the trial Judge’s summing up as to the use of items not stated in the particulars to mean that other things found in the car could be used by the prosecution to prove the appellant’s intention or plans, and to prove the presence of suspicious circumstances. The trial Judge referred only to the particularised articles when explaining the elements of the offence.
Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 270C(1) and s 353(1), referred to.
Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, discussed.
R v Willmot (No 2) (1985) 18 A Crim R 42, considered.

R v GRAHAM
[2011] SASCFC 52
Court of Criminal Appeal: Doyle CJ, David and Kourakis JJ

DOYLE CJ: Ms Graham was found guilty by a jury on a charge of “going equipped for an offence against property”, contrary to s 270C(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The particulars were as follows:
Aimee Kate Graham on or about the 29^th day of December 2009 at Murray Bridge, was, in suspicious circumstances, in possession of articles, namely a crow bar, two screwdrivers, a torch and a notebook containing a list of addresses, intending to use it to commit an offence, namely serious criminal trespass and theft.
Ms Graham appeals against the conviction. Mr Lang, counsel for Ms Graham on appeal, submits that the Judge wrongly directed the jury in relation to the notebook referred to in the particulars. In a nutshell, he submits that it was not open to the jury to conclude, as the Judge told them they could, that Ms Graham intended to use the notebook to commit an offence. Mr Lang also submits that a direction that the Judge gave relating to joint criminal enterprise was either wrong or misleadingly confusing. He also submits that the Judge erred in a direction relating to the use that could be made by the jury of evidence about other items, not referred to in the particulars, but were alleged by the prosecution to be in the possession of Ms Graham. A further ground, ground 5, was not pursued on appeal.
I agree that the Judge erred in his directions relating to the notebook. The Judge erred in law in directing the jury that they could find that Ms Graham intended to use the notebook to commit an offence. I reject the other complaints about the Judge’s directions.
Despite this error, I would dismiss the appeal. I am satisfied that there has been no substantial miscarriage of justice. I am satisfied that on the evidence properly admissible the prosecution proved beyond reasonable doubt that Ms Graham was guilty of the offence charged in relation to each of the other items referred to in the particulars. There is no risk that the jury rested its verdict solely on the notebook.
The trial
Section 270C of the CLCA provides as follows:
270C—Going equipped for commission of offence of dishonesty or offence against property
(1)A person who is, in suspicious circumstances, in possession of an article intending to use it to commit an offence to which this section applies is guilty of an offence.
Maximum penalty:
(a)     if the maximum penalty for the intended offence is life imprisonment or imprisonment for 14 years or more—imprisonment for 7 years;
(b)     in any other case—imprisonment for one-half the maximum period of imprisonment fixed for the intended offence.
(2)This section applies to the following offences:
(a)     theft (or receiving) or an offence of which theft is an element;
(b)     an offence against Part 6A (Serious criminal trespass);
(c)     unlawfully driving, using or interfering with a motor vehicle;
(d)     an offence against Part 5 Division 6 (Dishonest dealings with documents);
(e)     an offence against Part 5 Division 7 (Dishonest manipulation of machines);
(f)    an offence involving interference with, damage to or destruction of property punishable by imprisonment for 3 years or more.
(3)A person is in suspicious circumstances if it can be reasonably inferred from the person's conduct or circumstances surrounding the person's conduct (or both) that the person—
(a)     is proceeding to the scene of a proposed offence; or
(b)     is keeping the scene of a proposed offence under surveillance; or
(c)     is in, or in the vicinity of, the scene of a proposed offence awaiting an opportunity to commit the offence.
This section was enacted in 2003. It replaces the well known offence of being found at night armed or equipped or in possession of house breaking equipment. Section 270C is not limited to conduct at night time, and can apply to any “article”.
There was not much dispute about the primary facts at trial. The prosecution case was a strong one. Nevertheless, it is desirable to summarise the facts because they provide a background to the main issue argued by Mr Lang.
At about 1.00 am on 29 December 2009 police were on patrol at Murray Bridge. They saw a motor car parked not far from the junction of Sixth Street and Bridge Street. Ms Graham was in the driver’s seat, looking through a street directory. A man was seated in the front passenger seat. The police stopped alongside the car and spoke to Ms Graham. She told them that she was looking for Sixth Street, and that she was intending to meet a friend who was staying in a holiday house in that street. The police told Ms Graham that there were no holiday houses in Sixth Street, and pointed out that Sixth Street was only about 30 or 40 metres away from where Ms Graham had stopped. Ms Graham or the man said something about checking the address of their friend.
The police drove off, went around the block and returned via Sixth Street to the junction with Bridge Street. They kept the car under observation. When Ms Graham drove off the police followed her and stopped her after she had gone a short distance.
Ms Graham now said that she was meant to be in Mannum, a nearby town. She gave what the police soon realised was a false name, address and birth date. She said that she had no driver’s licence or other identification with her, and did not have a handbag with her. When the police enquired about the boot of the car, she said that it could not be opened. On an initial inspection the police saw two screwdrivers and a torch or bicycle light inside the car. When they searched the car they found two pairs of rubber gloves and a single latex glove. On the backseat they found the notebook referred to in the particulars. On the back floor of the car they found a “Short Stay” booklet, listing holiday accommodation at various places in South Australia. The police gained access to the boot through a pull down section of the rear seat of the car. In the boot they found a bag containing a jemmy bar. Separately they found a woman’s handbag which, I gather, Ms Graham acknowledged was hers.
The notebook contained a list of addresses. Many of the addresses included a reference to maps, and some were addresses apparently taken from the “Short Stay” booklet. An entry in the notebook contained the address and some details of a hotel or motel on Sixth Street at Murray Bridge, and a reference to LCD television sets. The “Short Stay” booklet had been marked by Ms Graham to identify particular properties. A substantial number were located along the route between Adelaide and Murray Bridge. The page relating to Murray Bridge and Mannum had been folded over, and various holiday locations or addresses were marked. One of them was a houseboat business.
The prosecution case was that the “Short Stay” booklet was used to identify premises with LCD television sets, and the notebook contained a list of addresses sorted by region.
In Ms Graham’s handbag were found a number of pieces of paper with addresses of holiday accommodation in her handwriting. Many of these were also taken from or found in the “Short Stay” booklet. Again, there were references to LCDs and to televisions.
When Ms Graham was searched, the police found a list in her pocket which the prosecution alleged was a list of houseboat names, the houseboats being moored at Mannum. There were notations which could be taken as references to the presence of television sets and to their size.
The prosecution case was a straightforward one. It was that Ms Graham and her companion were planning to break into hotel or holiday premises, or houseboats at Mannum. They were looking in particular for television sets. They had used the “Short Stay” booklet and possibly other sources to identify suitable premises. As the Judge said:
The essence of the prosecution case here is that the accused and her passenger were cruising around the place looking for places that had been previously identified by one or both of them as being places they should break into with the articles they had with them.
And again:
The essence of the prosecution submission is that the accused, and indeed her passenger, who you don’t need to concern yourself with, went equipped this night to commit a serious criminal trespass and a theft and that, when stopped, suspicious circumstances existed because she intended to use some or all of the nominated articles for the purpose of breaking into a place and stealing.
Ms Graham gave evidence. She said that that night she had had a dispute with her father, in whose house she lived. She and her partner (the man in the car with her) were “kicked out”. She grabbed some bedding and other odds and ends and put this on the back seat of the car. She was going to go to the caravan park at Mannum to stay with a friend who was visiting there from Melbourne. The Judge went on to summarise the defence case as follows (the friend in question was called “Stacey”):
The accused told you that she has since lost contact with Stacey because she, the accused, lost her mobile phone with Stacey’s telephone number. The accused said she was unlicensed and her partner put her handbag in the boot so that if they were pulled over she could hopefully escape any trouble. She planned, she said, to check her account balance on the way, so she kept her bank card in her possession for that purpose. She could not say with what bank that was because she had so many different accounts with different banks, but normally she banked with NAB, the National Australia Bank. She said she checked the balance at an ATM opposite the Murray Bridge Police Station. She said she then gave her card to her partner for safekeeping. By implication, members of the jury, the fact that the police could not find it, it must have meant, of course, it was hidden somewhere or got lost somewhere, but she says that it was certainly there and used by her on that particular morning.
She said in her evidence that it was after that, that is after checking her ATM balance, that she first spoke to the police. She said that she agreed she gave false answers to the police in a number of respects because she was unlicensed and did not want to get into trouble.
She said she bought a car about six months earlier but did not register it in her name with her address because she was waiting to get her licence. She said the car was damaged in a rear-end collision after she got it and the boot did not open using the key or any of the inside levers, and had to be forced open to gain access. She said she needed to change the fuses following the accident damages and that accounted for her possession of the screwdrivers and the torch. She said that she had changed the fuses even though she did not drive the car.
She said that she did not know the jemmy was in the boot, although she was aware, as I said to you, of its previous use by her partner to either open the boot or fix some of the damaged panel or move some of the damaged panel or panels of the car.
She said that pink gloves were in the glove box for her use when she washed the car because detergents irritate her skin. She said the soft items in the car were bedding for herself and her partner when they were due to stay, hopefully, with the friend Stacey at the Mannum Caravan Park.
She said the Shorts holiday booklet and the other lists were prepared by her because she dreamed of having a holiday and that was merely a place of identifying places that she would like to go. She said she was compulsive about writing and rewriting the list because preparing lists was an obsession with her.
She said she had marked those places with large TVs and the like because she and her partner liked to play PlayStation and watch movies and that those types of TVs, particularly plasma ones, were best for that, and that she liked to do those things, not only at home but also when they were on holidays.
In effect, members of the jury, she said that she was not going to break in and steal; rather she was simply on her way to Mannum to see Stacey and that it was a genuine coincidence that the place in Sixth Street, Murray Bridge was nearby and that she happened to have the Mannum list of houseboats in her pocket.
One of the submissions made on her behalf, of course, by Ms Mansfield was that it would be a strange time and a wrong time to go about the place with these articles for the purposes as alleged by the prosecution when it was the time of the year when those places were most likely to be occupied, and in the case of houseboats, not even there.
It was submitted that the various items in her possession had a genuine and proper explanation and that she was merely in the wrong place at the wrong time.
As would be evident, the prosecution case was a circumstantial one. It was a strong case.
Directions relating to the notebook
The Judge told the jury that to find Ms Graham guilty they had to be satisfied beyond reasonable doubt that she was in possession of one or more of the items identified in the Particulars, that the possession was in suspicious circumstances and that Ms Graham intended to use the article or articles to commit the offence referred to, serious criminal trespass and theft.
No complaint is made about that aspect of the Judge’s direction. Nor is any complaint made about the manner in which the Judge applied that general direction to each of the items particularised other than the notebook.
There was no real doubt that Ms Graham was in possession of the notebook. It was in the car. It belonged to her and had her writing in it. There was strong evidence to support a finding that when the police stopped Ms Graham and searched her and the car, the circumstances of the possession of the notebook were suspicious. There was plenty of evidence to support a finding that she was proceeding to the scene of a proposed offence, namely, an act of serious criminal trespass and theft, the offence to be committed at one of the premises referred to in her notebook or referred to in one of the other pieces of writing in her possession. Her explanation for her movements and for her false name, address and other lies to the police were unconvincing.
The issue on appeal is whether the Judge erred when he applied that general direction to the use of the notebook.
As I have mentioned, Ms Graham had the notebook with her in the car. It contained a list in Ms Graham’s handwriting of addresses in Murray Bridge and Mannum. Some of the addresses appeared to have been taken from the “Short Stay” booklet found in the car. The jury could readily have concluded that Ms Graham was, when stopped by the police, relying on the entries in the notebook to guide her to premises at Murray Bridge and Mannum. The jury could readily conclude that Ms Graham and her partner were inspecting the premises that she had identified in one of her writings intending, if practicable, to enter them unlawfully and to steal television screens. The notebook was aptly described as akin to a “shopping list”.
On those facts, was it open to the jury to conclude that Ms Graham was using the notebook to commit the postulated offence?
As to this, the Judge said to the jury:
Next, the purpose or use of the article must be to use it. Use of it can be by means of effecting an entry, or by referring to it for places and addresses.
Fairly obviously, members of the jury, a screwdrivers and a torch can be used as a means of seeing your way and effecting entry, that is obviously one use of it, but so far as the notebook is concerned, it can be used as a means of referring to it for places and addresses. So ‘use’ does not have to be in the conventional physical sense of using it to prise open a door, or anything like that. Use can be made of a document if it provides you with basically names and addresses. It must also be proved that the use of the article was proposed to be used in the commission of a serious criminal trespass, that is, to enter or remain in a place, not a public place, as a trespasser with the intention of committing the offence of theft.
So what is alleged here, members of the jury, is that the accused, no doubt in conjunction with her passengers, was in possession of these articles on this particular morning with the intention of them being used and that her possession of them was in suspicious circumstances in the way in which I outlined to you a little earlier.
In a written memorandum given to the jury the Judge said (in part):
(3) The possession must relate to one or more of the articles.
(4)The purpose or use of the article must be to ‘use’ it – use of it can be by means of effecting an entry or by referring to it for places and addresses. It is not necessary that all of the articles were intended to be used – it would be sufficient to be in possession of one article for ‘use’.
It would not be sufficient if they were merely looking at places to break and steal from at some stage in the future. The purpose of use of the article or articles must be on this occasion or journey.
(5)The use of the article must be to commit a serious criminal trespass, that is, to enter or remain in a place (not a public place) as a trespasser with the intention of committing the offence of theft.

Mr Lang submits that these directions were wrong in their application to the notebook. He argues that the direction extends too far the meaning of “… intending to use it to commit an offence”. He submits that on this approach many articles would be used to commit the offence in similar circumstances, if referring to the notebook for addresses is sufficient. For example, the motor car in which Ms Graham drove to the premises (if it can be called an article) could be said to be used to commit the offence. So could a pair of eye glasses, if the offender needed to wear them to see sufficiently well. Even the shoes worn by an offender could be said to be used to commit the offence. Quite apart from their use as footwear, one could say that the offender might use the heel of the shoe to break a window. Examples can be multiplied.
Mr Lang’s submission exposes a problem that is inherent in s 270C. The section is evidently intended to deal with conduct that falls short of an attempt to commit another substantive offence. It deals with what can be called preparatory conduct, not amounting to an attempt. Limiting the offence to the possession of an article in suspicious circumstances means that the possession and intent must coincide with the defendant going to the place of the intended offence, or being at or close to that place. But the reference to an “article” allows the prosecution to rely on anything that comes within that word, a word of wide meaning. And the word “use” also has a wide meaning.
The examples given above illustrate the difficulties that can arise in deciding when an article can be said to be used to commit an offence.
Ms McDonald, counsel for the Director of Public Prosecutions on appeal, submits that the Judge made plain to the jury that it was not enough for the jury to be satisfied that Ms Graham intended to use the notebook. They had to be satisfied that it was used to commit the offence. But, with respect, that submission does no more than identify the problem. When is an article that a person has with or about him or her intended to be used to commit a contemplated or proposed offence?
The common meaning of “use” is to employ for some purpose, to put into service, to turn to account: The Macquarie Dictionary (The Macquarie Library Pty Ltd, 4^th ed, 2005) 1551. Although it does not solve the problem, I consider that s 270C uses the word “use” in the sense of employing for a purpose, or putting into service.
As s 270C creates an offence, and as the meaning of “use” in the section is unclear, or at least the extent of the meaning is unclear, it is appropriate to favour a narrower meaning if that improves the clarity of the meaning of the section, rather than giving the word a wider and uncertain meaning. In that context I apply the observation made by Gibbs J in Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576 where His Honour said:
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … The rule is perhaps one of last resort.
Citations omitted
Guided by that approach, I conclude that s 270C requires proof that the defendant intends to use the article in question, in the sense of employing it, once the commission of the postulated or alleged offence in question has begun. That provides a reasonably clear line, although an issue will arise in some cases as to when commission of the offence begins. In the present case, that means that Ms Graham intended to use the notebook to commit an offence only if she intended to use it once the act of trespass had begun. On this approach it follows that the use of the article at an earlier stage, for example, to locate premises on which the defendant intends to commit an offence, to get to the premises, to examine them without trespassing on them, does not amount to use of the article to commit an offence.
If this is correct, it follows that the Judge’s direction to the jury was wrong. Using the notebook to obtain or record places or addresses where an offence is to be committed, and to guide the defendant and her partner to the place where the offence was to be committed, was not use of the notebook to commit the offence. It would be different if, for example, the notebook contained a plan of the premises that Ms Graham was going to use while on the premises. The screwdrivers and torch and crowbar stand differently. It was open to the jury to conclude that when Ms Graham and her partner, or one of them, trespassed on the premises where they were going to offend, they would take with them the crowbar and the screwdrivers and the torch to facilitate their entry and theft.
The Judge should have told the jury that on the evidence put forward by the prosecution it was not open to them to be satisfied beyond reasonable doubt that Ms Graham intended to use the notebook to commit the offence of serious criminal trespass and theft. There was no basis for finding that its use would continue after arriving at or near the premises. The approach that I take does not solve all the problems that can arise under s 270C. In particular, it does not solve the question of whether something such as eyeglasses, used because the alleged offender has poor eyesight, are used to commit an offence if they are worn while committing the offence. The same comment applies to footwear worn by the alleged offender. These are issues that can be left until they arise.
In my opinion it is not helpful, in dealing with the issue under s 270C that arises in this case, to postulate that the use of the article must be sufficiently proximate to the commission of the offence. Putting it that way merely restates the problem, using different language. Nor is it helpful to distinguish between real use and use that is remote or indirect or incidental or ancillary.
It follows that the Judge made an error of law. To the extent that the direction supported a conviction based on possession of the notebook, the conviction cannot be sustained, and must be set aside. But the directions in relation to the other articles were correct. It was open to the jury to convict Ms Graham on the basis that they were satisfied that she was in possession of the other articles, in suspicious circumstances, and intended to use them to commit the alleged offence.
In these circumstances does it follow that the conviction must be set aside?
By s 353(1) of the CLCA, the Court may dismiss the appeal, notwithstanding an error by the trial Judge, “… if it considers that no substantial miscarriage of justice has actually occurred”.
The proper approach to the application of this part of s 353(1) has been considered by the High Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. In its reasons in that decision the High Court rejected formulae used as a substitute for the statutory words. In particular, the Court rejected an approach based on an attempted prediction of what a jury would do but for the error, or might do, or might have done. The Court said at [39]:
[39]Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.
The reference in the second proposition to “speculation or prediction” is explained by observations made at [35]:
[35]The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a “substantial miscarriage of justice has actually occurred”.
The first and second of the propositions at [39] are expanded on at [41]. The Court there said:
[41]That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.
(Footnotes omitted)
Although the Court is not to speculate or predict what a jury would or might do, or would have done or might have done but for the error, the fact of a guilty verdict by a jury is a relevant fact and can be used in appropriate cases. At [43] the Court said:
[43]There are, however, some matters to which particular attention should be drawn. First, the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not “to speculate upon probable reconviction and decide according to how the speculation comes out”. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial...
(Footnotes omitted)
And there is one other proposition which must be observed. As the Court said at [44]:
[44]… But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.
I return to the facts of the case.
The jury’s finding of guilt must reflect the jury’s satisfaction beyond reasonable doubt that “suspicious circumstances” for the purposes of s 270C(3) were made out. That is, from the proven conduct of circumstances the inference referred to could reasonably be drawn. So the jury must have been satisfied that it could reasonably be inferred that Ms Graham was proceeding to the scene of the proposed offence, or in the vicinity of the proposed offence, awaiting an opportunity to commit the offence. The jury must have rejected Ms Graham’s explanations for the lies she told the police, her explanations for her movements, and her explanations for her presence at Murray Bridge on the night in question. The jury must also have rejected her evidence about holiday plans, as the reason for her handwritten markings and writings. The jury must have been satisfied that the writing down of addresses and houseboat names was a record of premises to be targeted by Ms Graham and her partner.
Ms Graham admitted that she was in possession of the two screwdrivers and the torch.
The jury must have been satisfied beyond reasonable doubt that Ms Graham intended to commit the offence of serious criminal trespass and theft.
Accordingly, this Court, taking into account the guilty verdict, can be satisfied that the evidence proved beyond reasonable doubt each element of the offence in relation to the screwdrivers and the torch, subject to the element that required proof that Ms Graham intended to use them or one of them to commit the offence in question.
Can this Court find that that remaining element was proved beyond reasonable doubt? In my opinion it can. First, it is sufficient to prove that Ms Graham intended to use these articles or one of them if it suited her to do so to enable her to commit the offence in question. It was not necessary to prove that she intended to use them or one of them come what may. Evidence in relation to one of the targeted premises, to the effect that the front door was unlocked, the lights were on and the house was empty, would not enable her to escape conviction. Second, it was not necessary for the prosecution to satisfy the jury that Ms Graham had not used the screwdrivers or a torch to change fuses in her car. It was sufficient to prove that she intended to use them or one of them to commit the offence in question if it was convenient to do so. Third, this Court can find on its review of the evidence and, taking into account the guilty verdict, that it was proved beyond reasonable doubt that Ms Graham intended to use the screwdrivers and the torch or one of them to commit the offence if it was convenient to do so. It is not just that the evidence supported that inference. The findings necessarily made by the jury to arrive at its verdict, even if that verdict was based solely on the notebook, enable this Court to conclude that what I have called the remaining element of the offence was proved beyond reasonable doubt in relation to the screwdrivers and the torch.
It is no longer sufficient to say that it is most unlikely that the jury convicted only in relation to the notebook, nor is it sufficient simply to ask whether Ms Graham lost a chance which was fairly open of being acquitted, or a real chance of acquittal. As I understand the reasons in Weiss, the proviso as it is called will now be applicable in more limited circumstances than in the past. But this is a case in which the proviso can be applied.
On this basis I am satisfied that no substantial miscarriage of justice has actually occurred as a result of the error by the Judge, and that it is appropriate to dismiss the appeal notwithstanding the error made by the Judge.
That disposes of the first two grounds of appeal.
Directions relating to joint enterprise
Because Ms Graham was accompanied by a male person, the Judge thought it appropriate to direct them in relation to a joint criminal enterprise. In the course of these directions the Judge said:
With two or more persons joined together in a joint criminal enterprise, every act done and word spoken in furtherance of that enterprise by either one of them is, in law, done and spoken by them all. In other words, the combined actions of two or more persons with a common criminal intent in implementing an arrangement previously agreed upon by them may make them all guilty of the resulting crime.
Might I say, members of the jury, that is no more than commonsense, that if you have two people joined together to do a particular thing in a criminal way, in effect they are one acting on behalf of the other at all times whilst they are implementing that common purpose. The law considers that in such circumstances each person is acting both on his own account and on behalf of the other person or persons concerned.
The concept of a joint criminal agreement implies that the persons concerned are, as it were, acting as a team to achieve a mutually agreed result. And that is really the prosecution case here; basically that the two of them were in it together. On the case here the trial relates to this accused only and you need to consider whether or not the case is proved against the accused that you now have before you.
Mr Lang submits, and I agree, that the first of these paragraphs was not appropriate to the circumstances of the case. It would have sufficed to instruct the jury that if they were satisfied that Ms Graham and her partner were together engaged in a course of criminal conduct, intending to commit the offence of serious criminal trespass and theft, and intending to work together as a team, then Ms Graham could be guilty of the offence charged even though they divided the task between them and, for example, Ms Graham kept watch while her partner went into the relevant premises and removed items to be stolen. That, in fact, was the example which the Judge went on to give of how the principle of joint criminal enterprise might operate.
I do not accept Mr Lang’s submission that the directions in question could have led to any miscarriage of justice. The only crime in question is the crime of serious criminal trespass and theft. Having regard to the manner in which the Judge directed the jury in relation to possession, there was no risk of the jury wrongly finding Ms Graham to be in possession of articles on the basis that they were in the sole possession of her companion in a joint criminal enterprise. In his directions to the jury the Judge noted that Ms Graham admitted being in possession of the two screwdrivers and the torch. As to the jemmy bar, the Judge said it would have to be proved that she knew it was there and had custody of it or control of it, albeit that might be by way of joint possession with her companion.
Accordingly, I am satisfied that this aspect of the directions did not give rise to a miscarriage of justice, and this ground should be dismissed.
Directions relating to “other articles”
The Judge separated the elements of the offence for the purposes of instructing the jury. They were, in brief terms, suspicious circumstances, possession, use, and intended use to commit the alleged offence. While dealing with possession of the articles referred to in the particulars, the Judge made the comment:
The prosecution is still entitled to rely on other articles not nominated in the information to prove its case.
The other articles were (not exhaustively), bedding in the back of the car, which might have been used to pack around stolen screens, gloves, pieces of paper with addresses, a diary belonging to Ms Graham.
Mr Lang submits that this statement could have misled the jury, because the jury could have taken it to mean that possession of articles identified in evidence, but not particularised as part of the charge, could establish the element of possession of an article.
This part of the summing up is, with respect to the Judge, awkwardly expressed. However, I am satisfied that it would not have been understood by the jury in the sense suggested by Mr Lang. I am satisfied that the jury would have understood it to mean that other things found in the car could be used by the prosecution to prove Ms Graham’s intention or plans, and to prove the presence of suspicious circumstances. The fact that the Judge said nothing about any articles, other than those particularised, when explaining the elements of the offence, would have been sufficient to indicate to the jury that the other articles could not be relied upon in substitution for articles particularised in the charge.
Ground 5
Mr Lang did not pursue this ground, and so there is no need to say anything about it.
Conclusion
For those reasons I would dismiss the appeal against conviction.
DAVID J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.

KOURAKIS J: I would dismiss the appeal. I gratefully adopt the summary of the evidence and trial proceedings set out in the reasons of the Chief Justice.
The reasons of the Chief Justice amply expose the problematic nature of s 270C of the Criminal Law Consolidation Act 1935 and, in particular, the phrase “intending to use [the article] to commit an offence”. In my view, the use which is intended must be a use made of the article in the act of committing an offence. I think that that requirement follows, not from the meaning of the word ‘use’ but, from its adverbial qualification: “to commit an offence”. Those words bear their ordinary meaning and it is, therefore, a question of fact for the jury whether the intention was to use the article in the course of committing an offence. In common parlance, the commission of an offence may commence shortly before, and continue for a period after, the conduct which comprises the bare legal elements of the offence. Whether or not an accused intended to use the article during the commission of the offence is a finding for the jury to make if there is an evidential basis for it.
In my view, there was no evidence which could support a finding that the appellant intended to use the notebook to commit an offence. The notebook recorded the locations of possible targets. On the facts of this case its use was spent when the appellant travelled to the vicinity of that location to await an opportunity to commit an offence. There was no evidence that she intended to use the notebook to commit the offence if and when that opportunity arose.
It should not be thought that a notebook or plan can never be intended for use in the commission of an offence. Plainly enough a plan of the internal layout of a building indicating the location of the safe and its combination code, which the accused intended to use after gaining entry to the building, may fall within the section. Even an intention to study the plan just before entering the premises may bring possession of the plan within the purview of the section.
If, contrary to my view, there was some evidence in this case on which the question should have been left, the Judge erred in telling the jury that use of the notebook to locate the premises necessarily fell within the prohibited intended use. Whether or not the use intended by the appellant was a use in the commission of an offence was a matter for the jury.
The evidence in this case does not directly raise the question whether a person who intends to use an item of clothing or a physiological aid to commit an offence comes within the section. However, because that possibility was urged as a reason for a narrow construction of the section, I will comment on it briefly. It appears to me that the suggested difficulty is resolved by the perhaps trite observation that an intention is a positive state of mind.[1] Most offenders will not have in mind the way in which a common article of clothing, or a personal physiological aid, will be used by them to commit an offence. However, there may be cases where the evidence shows that an accused wore steel capped boots because he intended to kick a door in, or brought with him his reading glasses to see the numbers on the combination lock. It is difficult to see why, in those circumstances, the commonality of those items should exclude them from the wide scope of the word ‘article’. Nor is there any apparent reason in those circumstances why the accused could not be found to have intended to use them to commit an offence. Where, however, the accused has not selected commonly worn clothes or aids because of the assistance they may provide in the commission of the offence, it is unlikely that he or she will have sufficiently turned his or her mind to the articles’ use to have formed the requisite intention.
[1] R v Willmot (No.2) (1985) 18 A Crim R 42 at 46.
Finally, I agree with the Chief Justice that this is a proper case to apply the proviso. The jury verdict necessarily entails a finding that the appellant intended to commit an offence of serious criminal trespass and theft from a building or buildings. It also, on the appellant’s hypothesis that the guilty verdict may have been based on the use of the notebook as a shopping list of possible targets, involves a finding rejecting the appellant’s innocent explanation for her possession of the notebook.
The misdirection complained of can not have affected those factual findings; it affected only the items in the car on which the jury might find the element of possession of an article proved. Having regard to the jury’s findings and, on the basis of my assessment of the written record, I am left in no doubt that the appellant intended to use the screwdrivers and crow bar to commit an offence in the sense discussed by the Chief Justice in paragraph [44].
It is, to my mind, fanciful to suggest that, while waiting in her car with the intention to steal goods from inside nearby buildings, the appellant did not turn her mind to the use of the tools in her car which were so well adapted to her intended purpose. It is equally fanciful to suggest that she was unaware of the presence of those tools which, coincidentally, could prove very useful in effecting her criminal intentions.
The appellant’s denial that she had a criminal intention, which is necessarily falsified by the jury verdict, is, in itself, further evidence of her knowing possession of, and intended use of, those tools.
This court has, of course, not heard for itself the appellant’s testimony that she was aware of the presence of only some of the tools and that she did not intend to use the implements of which she was aware for an unlawful purpose. The jury’s finding that the appellant’s testimonial denial that she had a criminal purpose was false, robs her evidence of any material weight. At the very least, the appellant’s testimony could not reasonably leave in doubt the conclusion that the appellant was aware of the presence of, and intended to use, the other articles charged. That conclusion must ineluctably be drawn from the admitted fact of their presence in the car and the finding which the jury must have made as to her criminal purpose.
I agree with the reasons of the Chief Justice as to the remaining grounds.

[2011] SASCFC 52

10 June 2011

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