R v Heginbotham

[1995] QCA 56

IN THE COURT OF APPEAL [1995] QCA 056

SUPREME COURT OF QUEENSLAND	C.A. No. 472 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. McPherson J.A.

[R. v. Heginbotham]

T H E Q U E E N

v.

RYAN KEITH HEGINBOTHAM (Appellant)

FITZGERALD P.
DAVIES J.A.

MCPHERSON J.A.

Judgment delivered 08/03/1995

SEPARATE REASONS FOR JUDGMENT BY EACH MEMBER OF THE COURT, ALL

CONCURRING AS TO THE ORDER MADE.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL - stealing - breaking and entering - receiving - whether open to the jury to be satisfied beyond reasonable doubt
Counsel:	D. Lynch for the Appellant Ms L. Clare for the Crown
Solicitors:	Legal Aid Office for the Appellant Queensland Director of Public Prosecutions for the Crown

Date/s of Hearing: 28 February 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 08/03/1995

The appellant has appealed against his conviction in the

District Court at Ipswich on 18 October 1994 of an offence of

breaking, entering and stealing. The appellant's argument is

that he should have been convicted on the alternative count of

receiving, to which he pleaded guilty.

The Ipswich branch of the National Australia Bank was broken

into and entered between 6.30 and 11.30 p.m. on 8 March 1993. A

subsequent audit revealed that $12,935 had been stolen, $10,290 in a night safe wallet, and approximately $2,645 in coins of all

denominations from 2¢ to $2. The thief had entered and exited

by forcing the rear door of the bank which led into a secluded

alleyway which was closed off to the public. Premises in the vicinity, including the Ipswich Post Office, also have access to the alleyway and, on the following morning, a Post Office

employee found the night safe wallet and a screwdriver at the rear of the Post Office. The night safe wallet had been split open and the contents removed.

Some of the coins were found nearby on 11 March 1993 in plastic

money bags, one of which bore a print of the appellant's left thumb. The total recovered was only about $266, mostly coins of smaller denominations, but also about 300 50¢ coins. An Ipswich City Council employee found a number of the plastic bags of

coins in three water control pits in an alley next to the Post Office; to gain access to the alley from the street meant

scaling a wall. The remainder of the coins were discovered on

the ground in the vicinity of the water control pits.

When he was interviewed by police on 15 April 1993, the

appellant denied handling the plastic bag on which the thumb

print was found or any knowledge of the offence.

As mentioned earlier, the appellant pleaded guilty to receiving;

more specifically, to receiving a sum of money, the property of the National Australia Bank Limited, which had then lately been

stolen which he then knew had been stolen. The actual words used by the appellant when he was arraigned were, "Guilty of receiving the money found in the manhole."

It was submitted for the appellant that the jury's verdict that the appellant was guilty of breaking, entering and stealing is

unsafe and unsatisfactory because the jury could not have properly been satisfied beyond reasonable doubt that the

appellant had done more than receive some of the money stolen from the bank. Thus, it was submitted, an inference or

hypothesis consistent with innocence had not been excluded

beyond reasonable doubt. When asked, counsel for the appellant

suggested that, for example, the appellant might have gone to the location where the plastic money bags of coins were found

and removed some, leaving his thumb print on one of the money bags. As counsel for the prosecution pointed out, the

appellant's admission that he was guilty of receiving "the money found in the manhole" does not sit entirely comfortably with

such a suggestion, but that can be left to one side.

In a case like the present, in which the issue cannot be

resolved by reference to sub-s. 568(4) of the Criminal Code, it is possible to be distracted by discussion of legal questions

which can, but mostly do not, arise: see, for example, R. v. Davis [1989] 1 Qd.R. 171; R. v. Stewart, ex parte Attorney-

General [1989] 1 Qd.R. 590; R. v. Organ (C.A. No. 104 of 1994,

unreported judgment delivered 11 August 1994). Usually, and this is such a case, it is unnecessary to consider such

questions.

It was obviously open to the jury to infer that the appellant had broken and entered the bank and stolen the money and other

property taken. The other inference, that he had merely

received all or some of the property, was no more than a theoretical possibility in the circumstances, including the

location where some of the stolen coins and the plastic bag with

his thumb print were found. Whether or not the jury was otherwise entitled to reject the theoretical possibility that the appellant had received, but not stolen, the money as not

being rational or reasonable, it was plainly entitled to do so

"in the absence of evidence to support [it] when that evidence, if it exists at all, must be within the knowledge of the

[appellant]": Weissensteiner v. R. (1993) 178 C.L.R. 217, 228.

A number of other grounds were stated in the appellant's notice of appeal, but, at least implicitly, abandoned. The point discussed above was the only one argued.

Since it is without substance, the appeal should be dismissed.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 8th day of March 1995

The question in this appeal is whether it was open to the

jury to be satisfied beyond reasonable doubt that the appellant

was guilty of breaking, entering and stealing, rather than receiving to which he pleaded guilty, in circumstances in which there was no direct, and only limited circumstantial evidence of

his involvement in the former crime and no admission by him of

his involvement in that crime.

On the night of 8 March 1994 the National Bank at Ipswich was broken and entered. A number of plastic bags containing coins and a night safe wallet also containing money were stolen.

On the following day the night safe wallet, opened and empty, was located together with a screwdriver and on 11 March a number of the plastic bags, some of them empty, others still containing coins mostly in small denominations, were found. In order to describe where they were found it is necessary to attempt a

description not only of that precise location but also of its

relationship to the bank premises.

The bank premises were on Brisbane Road. On the right side of those premises, looking at them from Brisbane Road, was a laneway running from Brisbane Road to the rear of those and

other premises. The door through which the thieves had entered was on the rear corner of the premises onto that laneway. At the other side of the laneway, also facing onto Brisbane Road

was a shop, next to it was the Post Office and next to the Post Office, but separated from it by another laneway, was the old

Town Hall. Behind the National Bank, the shop and the Post

Office was a large carpark which, it appeared, could be entered

either from the laneway between the shop and the bank or from Limestone Street which ran parallel to Brisbane Road but

separated from the rear of those premises by the carpark.

The laneway between the Post Office and the old Town Hall ran from Brisbane Road through to Limestone Street. At its Brisbane Street end there was a high besser brick wall which

prevented access to it from Brisbane Road. As one proceeded

along that laneway from that wall towards Limestone Street there was another very high wooden fence, with a wooden gate in it, running in line with the rear of the Post Office. Proceeding from that gate towards Limestone Street the rear of the old Town

Hall was on the right-hand side whilst on the left-hand side was

a fence having a brick base surmounted by chain wire running between aluminium posts. This fence separated this laneway from

the carpark.

In this laneway, between the wooden fence which I have

described and Limestone Street, but closer to the wooden fence,

were three pits, described as inspection pits, containing controls for water supply to the adjacent buildings. It was in two of those pits that most of the plastic bags containing money, one of them bearing the appellant's thumb print, were found on 11 March. Others were found, at least partially

concealed, on the ground in the vicinity of those pits and it was also in that vicinity that the night safe wallet and the screwdriver were found on the day after the theft.

The laneway in which the money was found was about 50 or 60 metres from the rear door of the National Bank. To reach it, in the most direct line from that door a person would have to cross

the carpark and climb over the brick and chain wire fence I have

described.

In pleading guilty to receiving the appellant said that he was guilty of receiving "the money found in the manhole" that plainly being a reference to the inspection pit in which the bag

bearing his thumb print was found. Whatever that admission

means precisely it may be taken as an admission that the appellant received the money in the vicinity of that inspection pit.

The laneway containing the inspection pits is fairly secluded and the inspection pits provided a good hiding place for the money. The probability is very high that it was chosen

as a hiding place before the crime was committed.

Whether or not that is so it is almost inconceivable that a

person not involved in the breaking, entering and stealing would

have been in that laneway, in the vicinity of the inspection

pits, in order to receive part of the proceeds so shortly after

the commission of the crime. In the absence of evidence to the

contrary, the only sensible inference which can be drawn from the appellant's handling of some of the stolen goods within that time at that location is that he was involved in the commission

of the breaking, entering and stealing and handled those goods there immediately after the commission of the crime. And, as

the President has pointed out, any evidence to the contrary, if

it existed, was within the knowledge of the appellant who chose

not to give evidence.

The appeal must therefore be dismissed.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 8th day of March 1995

Between 6.30 and 11.30 p.m. on 8 March 1994 the premises of

the National Bank at Ipswich were broken into. The back door

was jemmied open. Drawers were forced open and money was taken.
It included a sum of $10,290 contained in a night safe wallet,

but otherwise consisted of some $2,645.02 in coins of all

denominations, making a total amount taken of $12,935.02.

The back door of the bank building gives on to an alleyway or narrow area between other buildings. Access to it from Limestone Street was at the time blocked off by a besser brick

wall with a chain wire fence on top of it. March 8, 1993, which was the night of the break and enter, was a Monday. On the following Tuesday, an employee of the nearby post office found

the night safe wallet and a screw driver in the alleyway. The

wallet had been split open and the money taken.

On Thursday 11 March 1993 a plumber working for the City Council made a further discovery in the area. He had occasion to inspect three inground control pits or manholes housing water

installations. They were situated in the alleyway between the

Post Office and the old town hall. On removing the lids he saw

plastic packets or bags containing silver coins. He also found

two more bags on the ground among the debris next to the town

hall building and another behind a concrete slab at the base of

a nearby tree.

Examination of the plastic bags showed that they had been extensively handled. Only one identifiable print was discovered. It proved to be an impression of the appellant's

left thumb print. It was on one of the plastic bags; but at the

trial the particular place where that bag was found was not able

to be proved. The appellant was interviewed by police on 15

April 1993, but denied knowledge of the offence and denied

handling the plastic bag.

The appellant was brought to trial in the District Court at

Ipswich on an indictment containing two counts. The first

charged breaking and entering the Bank premises on 8 March 1993 and stealing $12,935.02; the second charged receiving a sum of money the property of the Bank on 9 March 1993 knowing it to have been stolen. Curiously the venue laid in count 1 was

Ipswich, while in count 2 it was Bundamba. Possibly that was

where the plaintiff lived.

When arraigned at trial, the appellant pleaded not guilty

to count 1, but guilty to count 2. The official transcript

records the plea simply as Not Guilty; but it was agreed by counsel and the judge at trial that what the appellant had said on arraignment was "Guilty of receiving the money found in the manhole". The jury were directed to that effect and were also told, as was agreed by counsel later in the trial, that the

amount of that money was $276.30. The prosecution did not accept the appellant's plea, and the trial proceeded as one in which it was for the Crown to prove count 1. The jury returned a verdict of guilty on that count. According to what was said in R. v. Seymour [1954] 1 W.L.R. 678; [1954] 1 All E.R. 1006,

the correct course in a case like this, where the jury find a verdict of guilty on one count, is to discharge them from giving a verdict on the other count, the two counts being considered mutually exclusive. No point is taken about it on this appeal.

Here the only ground argued by the appellant is that, in the state of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty of breaking, entering and stealing rather than receiving.

In Trainer v. The King (1906) 4 C.L.R. 126, 132,
Griffith C.J., with the concurrence of Barton J., said:
"It is a well known rule that recent possession of stolen

property is evidence, either that the person in possession of it stole the property, or received it knowing it to have been stolen, according to the circumstances of the case. Prima facie, the presumption is that he stole it himself, but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it, knowing that someone else had stolen it."

The "presumption", as his Honour described it, is of fairly

ancient lineage. It goes back at least as far as R. v. Oddy (1851) 2 Den. 264, 273; 169 E.R. 499, 502, where Alderson B.

said that "the mere possession of stolen property is evidence, prima facie, not of receiving but of stealing". In addition to

those decisions, the presumption or something like it has over the years been recognised and applied in various cases in

Australia and England, notably R. v. Langmead (1864) Le. & Cas.

427; 169 E.R. 1459, 1463-1464, where, however, Pollock C.B.

expressed it in this form:
"If no other person is involved in the transaction forming

the subject of inquiry, and the whole of the case against the prisoner is that he was found in the possession of the stolen property, the evidence would, no doubt, point to a case of stealing rather than a case of receiving; but in every case, except, indeed, where the possession is so recent that it is impossible for any one else to have committed the theft, it becomes a mere question for the jury whether the person found in possession of the stolen property stole it himself or received it from someone else."

Much more recently in Attorney-General for Hong Kong v. Yip

Kai-Foon [1988] 1 A.C. 642, in the Privy Council, Lord Ackner,

after closely examining what had been said by all of the judges

in R. v. Langmead, went on ([1988] 1 A.C. 642, 656):
"In speculating as to how the jury might have arrived at

their verdict the judges were in no manner suggesting that a judge, in his summing up, should direct the jury that, where a person is charged with theft and in the alternative with receiving, and the evidence (or the sole evidence) connecting him with the offence is the recent possession of the stolen property, then if the only reasonable inference is that he must have either stolen the property or received it knowing it to be stolen, they should ask themselves which is the more probable offence and convict accordingly. There is no reflection of such a rule in English authorities and Reg. v. Langmead has not been cited in any English judgments for such a proposition. Their Lordships are firmly of the opinion that not only was such a direction quite uncalled for in this case for the reasons already given, but that such a direction is wrong in law. It detracts, or may be thought to detract, from the obligation of the jury to be satisfied beyond reasonable doubt that the accused is guilty of the particular offence, before they enter such a verdict."

If the conviction under appeal rested on the so-called "presumption" mentioned in Trainer, it would be difficult to sustain it. The case here is not one in which, in the words of Pollock C.B., no other person was involved in the transaction.

Evidence was elicited in the course of the trial that another

man, referred to as Duggy Lee, had pleaded guilty to breaking, entering and stealing from the Bank on the night in question. Furthermore, it must be open to doubt whether the mere presence

of the appellant's thumb print on one of the plastic money bags found near the scene was, taken in isolation from the other

evidence, sufficient evidence of possession on the part of the
appellant.

The thumb print was, however, not the only evidence before the jury; and it was all the evidence, without reference to any presumption, that the learned trial judge invited the jury to consider in reaching their verdict. In particular, it was submitted for the Crown both at trial and on appeal that the compelling inference was that the perpetrator, or (as was contended by the Crown) perpetrators, of the offence had found it too difficult or inconvenient to take all the coins with

them, and so had hidden those of smaller denominations with a

view to retrieving them later. There was certainly evidence to justify such an inference. The coins removed from the bank were

proved to have consisted of the following: $1,130 in $2 coins;

$537 in $1 coins; $635 in 50c coins ($153); $250 in 20c coins

($38.80); $29 in 10c coins ($40); $44 in 5c coins ($34); and 2

cents in 2c coins. The figures in brackets represent the amounts later recovered from the inground pits and elsewhere near the city hall.

It does not seem to have been noticed at the trial that

there must have been some mistake in relation to the quantum of

10c coins stolen or recovered. Apart from that, the inference

was plainly open to the jury that the thief or thieves had indulged an understandable preference for the more valuable

denominations of coins, either abandoning the others altogether,

or hiding them (or most of them) in places from which they might be recovered. On this hypothesis the jury would have been justified in concluding that the appellant's thumb print got on

to the plastic bag either in the course of sorting through the

bags of coins, or in the course of hiding the bags in the pit,

if that is where the thumb printed bag was later located.

According to this view of the matter, the appellant was present

at the time of entry into the bank, and participated in it at least to the extent of later assisting with the removal or

sorting of the coins. On that footing he was guilty under s.7 of the Criminal Code of the principal offence charged in count 1.

The appellant's contention was, on the other hand, that what might equally well have happened was that he was told only later of the presence of the coins in the pits, and went there

on the following Tuesday or Wednesday night to help himself to them. On this hypothesis, his thumb print found its way on to

the plastic bag in the course of his taking other such bags out

of the pits. An obstacle to giving weight to such an explanation is why, if the appellant returned on a later occasion knowing what he would find, he left any of the coins behind instead of taking them all at once. One would not expect anyone to persist in incurring the risk of discovery involved in repeatedly returning to the scene. Moreover, the case was not one in which the jury was left with only this evidence to speculate on what had happened. The appellant's plea to count 2 was one of "Guilty of receiving the money in the manhole". The plea was a formal admission in open court on which the jury were entitled and invited by both counsel to act in reaching a verdict. To be guilty of receiving any of the coins, the appellant would have had to have had possession of them, so that his admission extended at least to that point. It is perhaps a

surprising feature of the plea that it referred to the money "found in the manhole", which necessarily means or includes the plastic bags of money, discovered in at least one of the pits on

Thursday. The guilty plea thus went so far as to admit

possession by the appellant of that money at some time before it

was found there on that day.

In the light of all these circumstances, the jury may very well have considered that the theory advanced on behalf of the appellant at the trial was not a possible or a reasonable explanation of what had really taken place. It involved the proposition that, having learned where to find the coins, the

appellant had gone to the area a night or two later; that, having found and possessed himself of the coins hidden in the

pits (or one of them), he then elected to remove only some of

them and leave the rest in that pit or pits; and that, in doing

so, he held or touched one of the plastic bags with his left thumb, before leaving it behind. It is scarcely surprising that

the jury rejected such hypothesis as far-fetched, and instead were satisfied beyond reasonable doubt that the appellant was a party to the offence of which they found him guilty.

There is no basis for upsetting the verdict.

The appeal should be dismissed.