R v Illingworth - [2000] WASCA 410

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: R -v- ILLINGWORTH [2000] WASCA 410

CORAM: KENNEDY J
MURRAY J
PARKER J

HEARD: 12 JUNE 2000

DELIVERED : 20 DECEMBER 2000

FILE NO/S: CCA 44 of 2000

BETWEEN: THE QUEEN
Appellant
AND
RODNEY GRANT ILLINGWORTH
Respondent

Catchwords:

Criminal law and procedure - Receiving stolen property - Whether Crown required to prove that accused intended to appropriate property to his own use or to the use of someone other than the true owner - Recent possession - Acquittal by direction - Appeal by Crown - Sufficient evidence to go to jury

Legislation:

Criminal Code, s 414

Result:

Appeal allowed
Judgment of acquittal set aside
New trial ordered

Representation:

Counsel:

Appellant: Mr R E Cock QC
Respondent: Mr P J Singleton QC & Mr W B Harris

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Mr W B Harris

Case(s) referred to in judgment(s):

Bruce v The Queen (1987) 61 ALJR 603
Doney v The Queen (1990) 171 CLR 207
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Matthews [1950] 1 All ER 137
R v Trainer (1906) 4 CLR 126
R v Wanganeen (1988) 50 SASR 433

Case(s) also cited:

Kobeissi v The Queen [2000] WASCA 44
Nichols v The Queen, unreported; CCA SCt of WA; Library No 950479; 13 September 1995
R v Bilick (1984) 36 SASR 321
R v Rechichi [1999] WASC 221
Scott v The Queen, unreported; CCA SCt of WA; Library No 990004; 15 January 1999
Waterhouse v Pas, unreported; CCA SCt of WA; Library No 980495; 1 September 1998

KENNEDY J: On 21 February 2000, the respondent was presented in the District Court on an indictment alleging that, on a date unknown between 1 November 1997 and 28 February 1998, at Broome, he received a geological fossilised footprint, namely one human footprint, the property of the State of Western Australia, which had then lately been stolen, then well knowing the same to have been so stolen. The respondent entered a plea of not guilty.
The evidence adduced for the Crown was relatively brief and the facts upon which the learned trial Judge had to base his decision may be shortly summarised.
Mr G G Travelstead did not give oral evidence; but, by consent, his statement was read to the jury. In April 1996, Mr Travelstead had commenced employment as managing director of City Properties Ltd, of which Lord McAlpine was chairman. Due to Lord McAlpine's interest in the collection of artefacts, Mr Travelstead became involved in managing his collection. Early in January 1998, he was contacted by the respondent, who was a former business associate of Mr Travelstead, but who was then the manager of Roebuck Plains Cattle Station. The respondent told him that he knew of some interesting artefacts that Lord McAlpine might be interested in, and inquired whether he could help or advise what could be done with them. The respondent said that they were human footprints in rocks and that they were usually under water in King Sound, except during exceptionally low tides. Mr Travelstead advised the respondent that Lord McAlpine was no longer collecting artefacts. He indicated, however, that the footprints sounded very interesting, and he expressed the opinion that they might have come from the last Ice Age. He told the respondent that, before his "contact" did anything, he should get scientific advice on their significance. Mr Travelstead said that he knew someone he could contact and would try to persuade him to come up and conduct a study.
The statement did not elaborate on who the respondent's "contact" was or what it might have been contemplated he would do.
Thereafter, Mr Travelstead contacted Mr L R Hasluck concerning what he had been told by the respondent. Mr Hasluck asked him, if possible, to obtain photographs of the footprints. Mr Travelstead conveyed this request to the respondent within a few days and asked him whether there were any photographs available. The respondent replied that he did not know, but that he would get back to him. He also asked the respondent whether it was possible "to get a piece of the rock where the artefacts were".
About one week to 10 days later, the respondent contacted Mr Travelstead by telephone, and said that he had a video of the footprints in situ. Mr Travelstead then called at the Roebuck Plains Cattle Station, where the respondent played him a colour video "showing mangroves in the background, and a series of footprints on what appeared to be mud flats, with a few rocks rising just above the mud". He stated:
"The video scanned across about 10 individual prints and lasted about 15 seconds. The footprints were easy to recognise and you could see individual toes. The footprints were evenly spaced and appeared to be of a person of small stature ie: women or child by modern standards."
Mr Travelstead recalled that, within a few days of viewing the video, the respondent came to his home in Broome with a slab of rock, which was triangular in shape and half a metre long on its longest dimension and 15 centimetres thick. The slab appeared to him to have broken away as he could not see any man‑made cuts. He estimated the rock's weight to be about 3 to 4 kilograms. It was greyish white in colour and made of fine compressed marine deposits, similar to shell grit. He saw what appeared to be a small complete single footprint in the centre of the rock. The footprint itself was about 24 centimetres long and about 2 centimetres deep. The applicant told Mr Travelstead that he had been told that the rock slab had naturally broken away from the set shown in the video. At this time, Mr Travelstead said he was sceptical about the authenticity or antiquity of the footprints because the structure of the rock was very uniform and the footprint was so well defined.
Mr Hasluck gave evidence at the trial. He is an anthropologist, having a degree in anthropology but majoring also in history and archaeology. He had previously worked in Western Australia, but at the time of the trial he was living in Melbourne and lecturing in heritage management at the Institute of Koori Education at Deakin University in Geelong. He said he was contacted by Mr Travelstead while he was in Perth over the Christmas period in 1997. Mr Travelstead then gave him a small sample of soil, taken, one assumes, from near the site of the footprints. A couple of weeks after he had returned to Melbourne, he received a video tape from Mr Travelstead. He kept the tape for "quite a few months" and showed it to some of his archaeologist friends in order to seek their advice on its contents. He said that, after viewing the video, he realised the importance of what it revealed. The soil which he had received from Mr Travelstead, however, proved to be too contaminated to be of use for dating purposes. He put what he described as a "guestimate" on the rock being about 9,000 years old.
Mr Hasluck indicated that his first telephone conversation with the respondent had been, perhaps, in April 1998. He said that they then discussed "fossilised footsteps located approximately in King Sound, under what is normally the low tide mark". He said they talked about the possibility of dating the footprints. A month or two later, he had another telephone conversation with the respondent, during which he informed Mr Hasluck that there was a second set of footprints located near the high tide mark which were in danger of being destroyed by erosion, and he suggested that Mr Hasluck could come up as an archaeologist and work with them "and that he would sort out with the local Aboriginal people if that was alright". In the course of this conversation, the respondent asked him to return the video, and told him that no more copies should be made - Mr Hasluck had already made a copy of the video for himself - and, further, that the video should not be shown to anyone else. Mr Hasluck posted the video tape back to the respondent a few days later. He addressed it to the respondent's post office box in Broome. Mr Hasluck admitted that the set of footprints would have the monetary value "of what someone was prepared to pay for it".
Mr K J Shaw was another witness for the Crown. He was an anthropologist employed by the Department of Aboriginal Affairs (and formerly by the Department of Aboriginal Sites). He had seen fossilised footprints "from the top part of Dampier Peninsula down through to the other side of Bidyadanga or La Grange, Frazier Downs" and said that Aboriginal people attached great significance to such footprints. Having viewed the video of the rock, he expressed the view that it had generally been covered at high tide.
In November 1998, police searched the homestead of the Roebuck Plains Cattle Station and discovered the videotape which had been returned to the respondent by Mr Hasluck. The respondent told Detective P McGee at this time that "an Aboriginal fellow", whom he named, had brought the rock to the station. Detective McGee was unable to trace any person of that name, but he added that this was not completely unusual with respect to indigenous people.
No "fossilised geological footprints" were discovered by the police during their search of the property. However, the video which they located at the station homestead showed a piece of rock with what appears to be a footprint in it. The obvious inference is that this was the rock which had been shown to Mr Travelstead and to which the respondent was referring when he spoke to Detective McGee. There was also some basis for believing that the foot shown as being in the footprint on the applicant's video was that of his wife, her purple nail polish on her toenails at the time of the search corresponding with the colour of the nail polish on the toenails shown in the video.
The respondent declined to take part in an interview with the police, and he gave the police no explanation as to his possession of the rock.
Detective S A Miller, who also participated in the search of the homestead, in his cross-examination, gave, without objection from anyone, hearsay evidence regarding two sets of footprints having been removed "from a certain part of the territory up this way" and that he was told that "one and a bit" footprints had been returned "back out into the water". He was told that the footprint in the video had come from "Lombadina way". This evidence was somewhat confusing and was unsatisfactory, the questions being asked of a detective who had no personal knowledge of the material on which he was being cross-examined while Mr Shaw, who was referred to in the statements upon which Detective Miller was being cross-examined, not himself having been cross-examined.
In the course of the Crown case, senior counsel for the respondent conceded that the "rock" contained fossilised footprints (sic) and that they "obviously belonged to the State of Western Australia". At the conclusion of the Crown case, senior counsel for the respondent submitted that there was no case to answer. He conceded, however, that the evidence indicated that the piece of rock was in the possession of the respondent at some time when he took it and showed it to Mr Travelstead.
The learned District Court Judge based his conclusion that there was no case to answer upon his view that there was no evidence to support a finding that, at the time the respondent received the rock, he knew that it was stolen or a finding that the respondent received the rock with a guilty intent, that is, that he intended to appropriate it to his own use or for the use of someone other than the true owner.
The test to be applied where a submission of no case to answer has been made by the defence was discussed by Malcolm CJ in Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482. At 489, the Chief Justice said:
"In my opinion, where a no case to answer submission is made by an accused in reply to a prosecution case, the trial Judge is required to ask whether the evidence of the Crown taken at its highest is capable of establishing beyond a reasonable doubt the guilt of the accused: see R v Bilick (1984) 36 SASR 321 at 335, per King CJ; Gebert v The Queen (1992) 60 SASR 110 (at 112‑113), per Mullighan J (with whom King CJ and Olsson J agreed … "
His Honour went on to refer to Doney v The Queen (1990) 171 CLR 207, at 214 ‑ 215, in which, in a joint judgment, Deane, Dawson, Toohey, Gaudron and McHugh JJ considered the test for determining whether there is a case to answer. They said:
"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
The offence with which the respondent was charged is to be found in s 414 of the Criminal Code, which relevantly provides:
"Any person who receives any property which has been obtained by means of any act constituting an indictable offence …. knowing the same to have been so obtained, is guilty of a crime."
On the face of it, the elements of the offence are:
(i)the obtaining of property by means of an act constituting an indictable offence;
(ii)the receipt of that property by the offender; and
(iii)the offender knowing that the property has been obtained by means of an act constituting an indictable offence.
The proof of the receipt of the property is assisted by the following provision in s 414:
"For the purpose of proving the receiving of anything, it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his possession, or has aided in concealing it or disposing of it."
It has been recognised that there is a difficulty encountered with the defining of the word "receives". A person who takes possession of property knowing it to have been stolen, but with the intention of returning it to its rightful owner could hardly be considered to be a "receiver" of stolen goods. As Professor Glanville Williams wrote in his work, Criminal Law, The General Part, 2nd edn (1961), at 84:
"Exceptionally, the Court may be prepared to hold that the particular statute, notwithstanding the omission of apt words, was aimed at dishonesty or wickedness only. This is a partial reversion to the older meaning of mens rea. By statute it is an offence to receive stolen goods knowing them to have been stolen; yet it was held to be no offence to receive stolen goods knowing them to have been stolen, when the recipient intended to restore them to the owner - Matthews [1950] 1 All ER 137."
In R v Matthews [1950] 1 All ER 137, Lord Goddard, delivering the judgment of the Court of Criminal Appeal, said at 137:
"The appellant undoubtedly received some property which he knew to be stolen. The defence was: 'I received that property from the thief. I knew he was a thief, and I knew he had stolen the property, but my intention when I received it was to hand it over to the police.' "
He continued, at 138:
"If the appellant received the property with the intention at once of handing it over to the police, that would not be a felonious receiving. The court cannot possibly accept the argument which has been addressed to it on behalf of the prosecution that a person who intends at once to hand to the police, or its true owner, stolen property which has come into his possession, is nevertheless guilty of the felony of receiving stolen property. That is so startling that I am surprised the argument can be put, and, if, when the property is received, the receipt is innocent, the fact that the receiver changes his mind and later misappropriates the property does not turn the receipt into a felony."
He concluded, at 138:
"In the present case, if the jury had believed the appellant's evidence that he had innocently taken the property in the sense that he was returning it to the true owner or to the police, there would be no trespass, and, therefore, he could not be guilty of the offence of stealing."
Proof of the receipt of stolen property may be facilitated by the so‑called doctrine of recent possession.
In Bruce v The Queen (1987) 61 ALJR 603, at 603, Mason CJ, Brennan, Deane, Dawson and Gaudron JJ summarised the concept of recent possession. In their joint judgment, they said:
"Where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused. Such an inference will be drawn from the unexplained fact of possession of such property and not from any admission of guilt arising from the failure to proffer an explanation. It is the possession of recently stolen property in the absence of explanation or explanatory circumstances, which enables the inference to be drawn. Thus the absence of any reasonable explanation must not itself be explicable in a manner consistent with innocence.
The accused must have had an opportunity to give an explanation in circumstances where, if he is innocent, an explanation might reasonably be expected. Those circumstances do not encompass the situation where an accused, having been duly cautioned, declines to answer questions by the police in the exercise of his right to do so. On the other hand, the fact that the caution was given or that the right to silence was asserted or exercised does not itself provide an explanation of the possession of recently stolen goods or necessarily negate the existence of circumstances of unexplained possession of such goods where such circumstances otherwise exist."
In the subsequent case of R v Wanganeen (1988) 50 SASR 433, at 434, King CJ considered the nature of the concept of recent possession as providing the basis for a verdict of guilty, and he referred to the older authority to the effect that recent possession of stolen property gives rise to a presumption of guilt which must be displaced by the accused - see R v Trainer (1906) 4 CLR 126, per O'Connor J at 138 ‑ 140. King CJ continued:
"Since the demise of the notion that recent possession gives rise to a presumption of guilt and reverses the onus of proof, there has been a gradual strengthening of the realisation that it has no claim to be treated as the subject of a special rule of law or "legal doctrine". In R v Bellamy [(1981) 3 A Crim R 432], Reynolds JA at 439 quotes a passage from Wigmore on Evidence (3rd ed) vol 9, p 421, par 2513, explaining how the essentially factual question as to the inferences properly to be drawn from possession of recently stolen property came to be looked upon as the subject of a legal doctrine and how the habitual directions providing guidance to juries as to how they might use the fact of recent possession in their deliberations came to be regarded as rules of law. In R v Beljajev [1948] VR 657 at 664 Starke J, with whose judgment the other members of the court agreed, cited with approval a passage from the judgment of the Full Court of the Supreme Court of Victoria in an unreported case R v Biason 1983:
'The present law is, in my opinion, that the so-called doctrine is no more than an application of the rules of the law of evidence to the rules relating to circumstantial evidence. In other words, the so-called doctrine is merely an application of a rule of evidence, the question always being whether the jury are prepared to infer from the fact that property recently stolen is found in the possession of a suspected person and having regard to his explanation they are prepared to convict.' "
In my opinion, the circumstantial evidence in this case, taken at its highest, was capable of sustaining a verdict of guilty. The evidence was that the respondent had knowledge of the footprints, which were situated below the high water mark in King Sound; he videoed the area where they were; a rock, which either broke off, or was broken off, from a set of footprints was brought to the respondent by "an Aboriginal fellow" at a time, it may be inferred, shortly after his first discussion with Mr Travelstead and shortly after it had broken away; the rock was in the respondent's possession at the time he displayed it to Mr Travelstead; it was admitted that it was the property of the State of Western Australia, and his Honour found that the direct evidence was capable of establishing that the rock with the footprint was the property of the alleged owner; and

there was an absence of any reasonable explanation for the respondent's possession of it. The respondent made inquiries from which it may be inferred that it was his desire to dispose of the material for his own benefit, and there was no evidence of any communication by the respondent with any public authority. On the contrary, there was an apparent desire on the part of the respondent to ensure secrecy. When all the evidence is led, a different picture may well emerge; but, in my opinion, taken at its highest, the evidence satisfied the requirements of recent possession as laid down in Bruce v The Queen to the extent that there was a case to answer.

In the circumstances, I would allow this appeal, quash the verdict and judgment of acquittal and order a new trial.
MURRAY J: I agree with Kennedy J that, for the reasons given by his Honour, the appeal should be allowed. I also agree with the consequential orders proposed.
PARKER J: I agree that this appeal should be allowed, the verdict and judgment of acquittal quashed and a new trial ordered, for the reasons now published by Kennedy J.