R v Mather No. Sccrm-02-288, Sccrm-02-131

R v MATHER
[2002] SASC 368
Court of Criminal Appeal: Duggan, Debelle and Williams JJ

DUGGAN J. The appellant was convicted by verdict of a jury on three counts of receiving. He now appeals against conviction on the grounds which are identified later in these reasons for judgment.
The charges were laid following a police raid on an industrial shed at Windsor Gardens on 11 October 1999. Several people were in the shed at the time including the appellant. The appellant rented the shed for some weeks prior to the raid. There were a number of cars, car parts and tools in the shed. The police officers took possession of two vehicles which were found in nearby streets and another vehicle which had been located at Gilles Plains before the search. It was alleged that all of this property was stolen and that the appellant received it knowing it to be stolen.
The charges on which the appellant was convicted are as follows:
“First Count
Receiving. (Section 196 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Troy Morrell Mather between the 30th day of September, 1999 and the 12th day of October, 1999 at Windsor Gardens or other places, received three motor vehicles, a motor bike, tools, electrical equipment and paperwork together of the value of about $60,000 the property of Marion Daewoo and others knowing them to have been stolen.
Second Count
Receiving. (Section 196 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Troy Morrell Mather between the 1st day of January, 1999 and the 12th day of October, 1999 at Windsor Gardens or other places, received a motor vehicle namely a Toyota Landcruiser Utility of the value of about $2000, the property of Francis Richards knowing it to have been stolen.
Third Count
Receiving. (Section 196 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Troy Morrell Mather between the 8th day of August, 1999 and the 12th day of October, 1999 at Windsor Gardens or other places, received a motor vehicle namely a Toyota Troop Carrier of the value of about $8900, the property of Louis Loizou, knowing it to have been stolen.”
According to the prosecution case, the property referred to in the first count was stolen from a Daewoo dealership at Marion about one week before the raid. None of the motor vehicles referred to in that count were found in the shed. These were the vehicles found at Gilles Plains and in streets near the shed. Some of the papers and tools referred to in the particulars were found in the shed. The appellant’s fingerprint was found on the door of one of these vehicles, a blue sports car.
The Toyota Landcruiser referred to in the particulars to the second count was stolen between January and August 1999. Various parts of this vehicle were found inside the shed. The Toyota Troop Carrier referred to in the particulars to the third count was stolen in about August 1999. It had been cut up and dismantled and the parts were located in the shed.
When the police located one of the stolen vehicles in a nearby street they found a number of small gas canisters inside the vehicle. The canisters were of the type used to provide gas for a particular kind of soda water bottle and the appellant admitted buying canisters of this description in bulk. These canisters contained nitrous oxide which, according to the evidence, was inhaled by the appellant from time to time for its euphoric effect.
When the police raided the shed, a man named Assheton was found asleep in one of the vehicles. During his interrogation by the police and in his evidence the appellant suggested that Assheton was responsible for bringing to the shed a number of the items of stolen property which were found in it at the time of the raid. There were numerous nitrous oxide cylinders lying around the shed and the appellant and others were inhaling from other cylinders when the police arrived.
The case against the appellant was based on circumstantial evidence. The doctrine of recent possession was not relied upon specifically by the prosecution. However, the main items of evidence on which the prosecution case was based included the appellant’s leasing of the shed, his apparent connection with some of the vehicles and his presence at the shed during the raid.
The appellant gave evidence at the trial. He said that he leased the shed because he wanted somewhere to work on his cars and to store household furniture. He said that Assheton shared the rent although he was not the lessee. This arrangement began at the end of September 1999. The appellant said that he purchased the Landcruiser referred to in the second count from Assheton for $4000 about a month or two before occupying the shed. He said that he did not know the vehicle had been stolen. He said that he dismantled it in order to restore and then rebuild it. He said that he also purchased the Troop Carrier referred to in the third count from Assheton. The appellant said that he intended to use it for parts.
The appellant then gave evidence that on 3 October 1999 he went to the shed and saw Assheton with other persons he had not met. Assheton was riding a red motor bike which answers the description of the motor bike referred to in the particulars to the first count. The men with Assheton drove vehicles into the shed. The appellant spoke to Assheton about one of the vehicles, a blue sports car. Assheton told him that the vehicle was stolen. The appellant said that he then told Assheton to get the vehicle out of the shed. According to the appellant, he returned to the shed on the following Tuesday and there was no sign of the vehicles. He denied being involved in the theft of these vehicles.
The appellant said that he went to the shed again with a friend on the evening of Sunday 10 October 1999. He said that Assheton arrived with a friend and Assheton and his friend started to do some work on a blue utility which Assheton had driven there. The appellant also did some work on his own car and eventually they all stopped and some of those present, including the appellant, began to inhale nitrous oxide from the cylinders. The police arrived in the early hours of the morning of 11 October.
The first ground of appeal argued on behalf of the appellant concerns directions which the learned trial judge gave to the jury in relation to explanations given in evidence by the appellant concerning various items of circumstantial evidence. In the first of these passages, the trial judge referred to the appellant’s explanation as to how his fingerprint might have been left on the blue sports car. The appellant said in evidence that he went to the shed on 3 October 1999 with his fiancée. Both gave evidence that the appellant opened the door of the sports car and sat in it until he was told by Assheton that it was stolen. The appellant and his fiancée gave evidence that when this was mentioned the appellant said to Assheton “Get rid of it”.
After referring to this evidence the trial judge directed the jury as follows:
“You will have to decide whether you believe the accused and his fiancée. Did he lie to you in recounting the story and did his fiancée support him in that lie?
If you accept that they were telling the truth, you may find that the accused did not take possession of the three Daewoos, nor any of the property stolen from Marion Daewoo. If so, you will find him not guilty of count 1.”
Later in the summing-up, the trial judge returned to the appellant’s explanations for various items of the evidence. His Honour said:
“Both counsel have put to you submissions in relation to whether or not the accused and his witnesses, in particular, the accused and his fiancée, should be accepted as evidence exonerating the accused. There was the record of interview that took place between Senior Constable Weber and the accused on the night of the raid. There was reference made by the accused to the purchase of the Toyota vehicle, the sum of $4,000 and the fact that only $200 had been paid for it by Assheton. If you take that record of interview in isolation, you have been asked by the Crown to look at his explanation of buying a vehicle for $4,000 when it only cost the seller $200 as an implausible explanation. You will recall, in addition, that the accused said, during evidence, something which he did not say to the police officer at the time that the interview was recorded, namely, that the $200 purchase price was put to Assheton by the accused and Assheton denied that he had paid only $200 for the item.
So, all of that you will take into account, in addition to the matters that counsel have put to you, that I have put to you in the first part of my charge, and which I am now putting to you, in your deliberations as to whether or not you accept the evidence of the accused and, if you so accept it, whether that evidence exonerates him from all or any of the charges the subject of this trial.”
The complaint made by the appellant in relation to these passages is that the trial judge suggested to the jury that the defence evidence on these issues could only be taken into account if the jury accepted such evidence. In fact, the jury were also required to give weight to the explanations if there was a reasonable possibility that they were correct. This would have been relevant, in turn, to the question as to whether there was a reasonable doubt about the essential element in the prosecution case to which the explanation was directed.
It must be acknowledged, of course, that the directions are to be considered against the background of the summing-up as a whole. In his earlier directions the trial judge said:
“An accused person comes into this court with a presumption of innocence in his favour. He is regarded by the law as innocent until and unless the jury finds the charge against him proved. The onus or burden of proving the charge is on the prosecution. There is no onus on the accused. The prosecution must prove the charge and every element of the charge to your satisfaction beyond reasonable doubt. A jury has a dual responsibility. It has a responsibility to the community to discharge its duty fairly and, as far as possible, to see that guilty persons are brought to justice. It also has a responsibility to the accused and also to the community to ensure that, as far as possible, an innocent person is not convicted.
. . .
If you are left with a reasonable doubt about the accused’s guilt, you are required to bring in a verdict of not guilty. If you are satisfied to the exclusion of reasonable doubt about the truth of the charges against the accused, you will bring in a verdict of guilty. It is not enough for the prosecution to show a mere suspicion of guilt, or to show that an accused is probably guilty. An accused person is not to be convicted unless their guilt has been proved beyond reasonable doubt to your satisfaction. That applies to every element of the offence and it applies to every count on the information.”
It would appear that in the impugned directions which are quoted above, the trial judge intended to do no more than use the word “accept” against the background of the general directions on onus and standard of proof. I am confident that he did not mean to imply any retreat from the requirement of proof beyond reasonable doubt. However, the direction in the first quoted passage was concerned with a vital issue in relation to the first count, namely, whether the appellant indicated to Assheton that he wanted nothing to do with stolen property. A comment of this nature would be totally inconsistent with the commission of the offence of receiving. The jury’s task in this respect was not limited to considering whether it believed the appellant and his fiancée or accepted that they were telling the truth. The jury was also required to consider whether the defence version was reasonably possible so as to lead to a reasonable doubt on the issue. The directions in the second quoted passage were directed towards the defence evidence generally.
Before discussing the consequences of these directions it is appropriate to refer to another issue raised by the appellant. The appellant complained of the trial judge’s directions as to a lie which the appellant told the police. It was not in dispute that, when the police questioned the appellant at the shed on the occasion of the raid, the appellant was asked to state his name and he told the police that it was Craig Robert Mather. The appellant’s name is Troy Morrell Mather. Craig Robert Mather is his brother’s name.
After the appellant had given a false name, one of the police officers had a lengthy conversation with him about the vehicles and other property in the shed. At the commencement of this interview the appellant confirmed that his name was Craig Mather and the police officer addressed him throughout the interview as “Craig”. At the conclusion of the conversation, the appellant was told that he was being detained on suspicion of receiving stolen goods and was given to understand that he would be taken from the shed in police custody.
Before the appellant was taken from the shed, the investigating police officer was provided with information which suggested that the appellant had given a false name when first questioned. Upon further questioning, the appellant admitted that he had given his brother’s name. He said that he did so because he had a series of speeding offences under his own name.
In examination-in-chief the appellant was asked about providing the police with a false name:
“QWhy did you give the police a false name?
ABecause I thought I had warrants out for speeding offences.
QWhen you say ‘warrants’, are they things which mean that the police can arrest you because you haven’t paid fines?
AYes.
QWas there any other reason why you gave your brother’s name when police attended?
ANo.
QDid it turn out that you did, in fact, have outstanding warrants for failure to pay fines?
AI don’t think so, no.
QHad you received fines shortly before that time for speeding offences?
AYes.”
In his final address to the jury, the prosecutor stated that there were six aspects of the evidence which should lead to the view that the appellant was in possession of the stolen items in the shed and that when he came into possession of those items he knew that they were stolen. He explained that one of those aspects was the fact that the appellant had given a false name to the police. He said:
“The fifth body of evidence that I suggest will lead you to the view that there was a requisite knowledge was what the accused said to the police. You will remember that during the course of the record of interview with the police the accused described himself as Craig Mather, another false name. His explanation may well be, it has been, there were warrants outstanding for his arrest. It shows a degree of dishonesty, don’t you think, if that be the case? It might also lead you to the view he gave that name because there was a guilty association with the items that were found by the police in the shed, the stolen items that were found by the police in the shed.” (Emphasis added)
In his summing-up the trial judge reminded the jury of the six points relied upon by the prosecution. He said:
“As to counts 2 and 3, the Crown can only prove that the accused knew the vehicles were stolen by circumstantial evidence. The accused said that he did not know that the Toyota vehicles were stolen. The Crown says that you should infer that he knew they were stolen. Of the six pieces of evidence referred to by Mr Preston, numbers 2, 5 and 6 are the most pertinent to this aspect of the case.”
After returning from a short adjournment which was taken at this stage the trial judge reminded the jury of the comment he had made prior to the adjournment. He said:
“Ladies and Gentlemen, we left off with counts 2 and 3 and the question of whether or not the accused knew that the vehicles, the subject of those counts, were stolen at the time that he took possession of them. I said that of the six pieces of evidence referred to by Mr Preston during the course of his submissions, that the second, fifth and sixth pieces that he referred to were most pertinent. I do not mean to exclude the operation of the other pieces of evidence to which he referred, but these seem to have particular reference to this aspect of the matter.”
His Honour then proceeded to deal with the second, fifth and sixth points and, in the course of so doing, he referred to the giving of the false name to the police. The trial judge said:
“The fifth part of the evidence that he referred to, Mr Preston that is, was the accused giving a false name to the police. The accused explained that he did so because he thought that there were outstanding warrants in his name for traffic offences. This is a classic example of where you have to weigh up, on the one hand, whether or not inferences should be drawn as suggested to you by the Crown or whether or not, if you accept the evidence of the accused, that that constitutes an explanation as to why he gave a false name to the police.”
It is evident from the remarks made by the prosecutor in the course of his address that he was inviting the jury to treat the giving of the false name as going beyond the issue of credit. He put to the jury that this lie could be viewed as being motivated by the appellant’s “guilty association” with the stolen items in the shed. Ms Kelly, for the respondent, properly conceded that the prosecutor was suggesting to the jury that it could rely on this lie as positive evidence of guilt.
The suggestion that the evidence might be used in this way called for a direction from the trial judge. If the judge was of the view that the lie was not capable of being used as positive evidence of guilt, as argued by the prosecution, then it was necessary to so instruct the jury. If the lie was capable of being used for this purpose, then it was necessary to direct the jury that it could only be so used if the jurors found beyond reasonable doubt not only that the lie had been told, but that it was told by the appellant because of his guilty association with the goods in the shed. It would also be necessary to direct the jury that there may be reasons for telling a lie apart from the realisation of guilt (Edwards v The Queen (1993) 178 CLR 193 at 211).
In my view, the admitted lie in the present case is not one which could give rise to positive evidence of guilt. The appellant gave the name of his brother at a time when he was being questioned along with others in the shed. It is highly unlikely that he would have given his brother’s name because he was conscious of his own guilt and thought, for example, that the giving of a false name might enable him to escape the consequences of his actions. This was not a lie on a material issue in the sense discussed in Edwards case.
Caution is required before leaving evidence of lies to a jury as positive evidence of guilt. It is appropriate in this respect to bear in mind the remarks of King CJ in Harris v The Queen (1990) 55 SASR 321 at 323:
“The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt. Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt.”
It should be said in passing that it would be a wise practice for prosecutors who intend to rely on lies told by an accused person as positive evidence of guilt to acquaint the trial judge with this intention prior to final addresses so that the trial judge can assess the appropriateness or otherwise of that comment before it is made.

Unfortunately, in the present case the use of the evidence in this way was suggested by the prosecutor and the trial judge impliedly supported consideration by the jury of the prosecutor’s argument. In the passages quoted above the trial judge referred to this argument as being among the most pertinent to the central issue of whether the appellant knew that certain of the vehicles were stolen. I do not mean to imply that the learned judge suggested acceptance of the argument, but it was given prominence as a matter which should be considered by the jury. In these circumstances, it cannot be said that the evidence was not used by the jury as going beyond the issue of credit and as relevant to knowledge that the property was stolen.
If I am wrong and the evidence could have been used to prove consciousness of guilt, then the directions discussed in Edwards’ case were not given to the jury. It is true that the trial judge referred to the appellant’s explanation of the lie, but that falls short of the directions which are to be given in these circumstances. Again, it could not be said that if this were the case, the evidence was not misused by the jury.
The next ground of appeal complains about the trial judge’s directions on possession. When explaining this element of the offence of receiving the trial judge said:
“It is necessary for the Crown to establish that the property was received into the possession of the accused. You are in possession of something if you knowingly have the thing in some place where you have either alone, or jointly with some other person or persons, control over the property to the exclusion of others. It is not necessary for you to have the thing on your person in order to have possession of it. It may be with your knowledge in your house or car or in a hiding place or any other place where you either alone, or together with other persons who you recognise as sharing control, have control of it to the exclusion of others.
You will have to consider whether the accused possessed any of the items alone. The thrust of the Crown case is that the accused received the goods, knowing them to have been stolen from the man Assheton about whom you have heard during the course of the evidence.”
Later the trial judge pointed out that the appellant agreed that he came into possession of the vehicles referred to in counts 2 and 3, but denied that he was in possession of the property referred to in count 1. His Honour then said that, if the jury accepted that the appellant and his fiancée were telling the truth when they said that the appellant told Assheton to get rid of the stolen property, then it would be appropriate to find the appellant not guilty on count 1.
Leaving aside the reference to accepting the defence version, this direction appears to meet the circumstances of the case. The trial judge was asked later to direct the jury that it would have to conclude that the appellant either exercised control or intended to exercise control over the items referred to in count 1 and that he did so.
When these directions are considered along with the instruction that the appellant was not to be found guilty if he told Assheton to take the vehicles elsewhere, it cannot be said that the directions on possession in relation to count 1 were inadequate in the respect complained of by the appellant in this ground of appeal.
Another ground of appeal complains that the learned trial judge erred in ruling that there was a case to answer in relation to count 1, the receiving of the property stolen from the Daewoo dealership.
In order to consider this ground, it is necessary to refer to some aspects of the evidence led as part of the prosecution case. The appellant leased the shed for $650 per month. The lease commenced on 30 September, 1999 and the offence on the Daewoo dealership took place during the following week.
At the time of the police raid on 11 October 1999, it was evident that the shed was being used to dismantle vehicles. Parts from each of the stolen vehicles referred to in count 1 were found in the shed. The jury was entitled to draw the inference that one of the purposes for leasing the shed was to provide a location for dismantling stolen cars and that this purpose was being fulfilled within days of the shed being leased. Tools, equipment and papers from the Daewoo dealership were also found in the shed.
When questioned by the police the appellant said that, apart from the owner of the shed, the only other person who had a key to it was a person by the name of “Randall” whose surname he did not know. It is clear that this is the man Assheton to whom reference has been made.
I have pointed out that the appellant’s fingerprint was found on the door of one of the Daewoo vehicles and gas cylinders of the type he was using at the time of the raid that were found in the boot of one of the other Daewoo cars.
In considering the submission of no case to answer the trial judge was required to decide the issue on the basis that the jury would draw such inferences as were reasonably open on the evidence before him as were most favourable to the prosecution (Questions of Law Reserved on Acquittal (No. 2 of 1993) (1993) 61 SASR 1). It is my view that when the combined effect of the prosecution case as it stood at the time of the submission of no case to answer is considered along with the inferences most favourable to the prosecution which could be drawn from that evidence, the trial judge was correct in deciding that it would be open to a jury to be satisfied beyond reasonable doubt that the appellant committed the offence of receiving charged in the first count.
Mr Boucaut, for the appellant, relied on the decision of this court in The Queen v Dawson [1964] SASR 256. In that case it was held that where a person is charged with either larceny or receiving separately and not in the alternative, the jury must be satisfied beyond reasonable doubt of the elements of the specific offence charged before convicting the accused. This consideration must also be borne in mind when considering a submission of no case to answer when only one of these offences is charged. Doyle CJ confirmed this in R v Assheton [2002] SASC 194 at [15] when he said:
“It follows that the Judge could reject the submission of no case to answer only if he came to the conclusion that the jury could reasonably be satisfied beyond reasonable doubt that Mr Assheton was guilty of receiving, and in the circumstances that would require the jury reasonably to conclude that the evidence did more than establish merely that Mr Assheton was guilty either of larceny or of receiving.”
In Assheton’s case the court was dealing with an appeal against conviction on one count of receiving recorded against Assheton. The charge related to a blue Ford utility which was in the shed at the time of the police raid. When considering a ground of appeal which complained that the trial judge in Assheton’s case had erred in finding a case to answer against Assheton, Doyle CJ (Lander J concurring) said at [21]:
“I consider that the Judge was correct, although I agree that excluding as a reasonable possibility guilt of larceny is not easy. It was open to the jury to decide that Mr Assheton’s involvement in larceny could be excluded, despite the difficulty. There was nothing at all to connect Mr Mather or Mr Assheton with the stealing of any of the property, other than the fact of their possession of it in the shed, if the jury accepted that they were in possession of it. Moreover, as I understand it, on the prosecution case there was no evidence of any link between Mr Mather and Mr Assheton that went back to the first half of the year when the vehicle the subject of count 2 was stolen. No other person was identified as a further party to the joint arrangement and involved in the stealing of the motor vehicles and personal property. The activity in the shed pointed to dealing in or with stolen motor vehicles and personal property. The activity in the shed pointed to dealing in or with stolen motor vehicles and parts, not to the larceny of motor vehicles and parts. I have not overlooked the fact that a person might steal cars and strip them, or steal goods and deal with them. Nor have I overlooked the impact of the presumption of guilt of larceny or receiving that arises from the unexplained possession of recently stolen property: see R v Wanganeen (1988) 50 SASR 433-435 King CJ. But, taking the material overall, it pointed more strongly to a joint activity in receiving stolen goods, rather than in stealing.
On that material, it was open to the Judge to hold that the jury could conclude that the evidence pointed much more strongly to receiving than to larceny and that a charge of larceny could not be proved beyond reasonable doubt. The jury could so conclude on the basis that the link to any involvement in the taking of the vehicles and other property was too tenuous. The Judge could also conclude that it was open to the jury to make a finding of guilty of receiving on the evidence.”
Perry J dissented from this view.
Of course this court must make up its own mind about this issue on the evidence led at the trial of this appellant. Furthermore, the comments in Assheton’s case were not made in relation to any of the vehicles which were the subject of the first count in the present matter and the Chief Justice’s reference to the absence of a link between this appellant and Assheton at the time the Ford utility was stolen has no application in this case. Nevertheless, the Chief Justice’s general remarks are pertinent to the present appeal and the considerations to which he referred are the matters which lead me to the conclusion that the evidence in the present case as at the time of the making of the no case submission pointed more strongly to receiving than to larceny and that a charge of larceny could not be proved beyond reasonable doubt.
In my view, this ground of appeal should be rejected.
I also take the view that ground 11 should be rejected. This ground alleges that the verdict on count 1 was unsafe, unsatisfactory and against the weight of the evidence. The factual arguments advanced in support of this ground are essentially the same as those put forward in relation to the previous ground alleging that there was no case to answer.
The next ground asserts that the verdicts of guilty in relation to counts 2 and 3 were unsafe, unsatisfactory and against the weight of the evidence. These counts are concerned with the Toyota Landcruiser and the Toyota Troop Carrier, both of which had been partly dismantled. The Landcruiser had been almost entirely dismantled. The owner said that it had been a complete vehicle when it was stolen. Parts of each vehicle were found inside the shed.
The appellant claimed that he purchased these vehicles from Assheton. At the time of the raid the police noticed that there had been some interference with the engine and chassis number of the Landcruiser which suggested an attempt at disguise. The appellant denied knowledge of any such interference. There was also evidence that the appellant made no serious attempt to obtain the registration papers of this vehicle from Assheton.
There was sufficient evidence before the court to support the inference that the appellant knew at the time he obtained these vehicles that they were stolen and the verdicts on the first and second counts are not unsatisfactory by reason of the arguments advanced on this ground. This ground of appeal should be rejected.
The final ground of appeal arises out of evidence led by the defence. Reference has been made to the nitrous oxide cylinders found in the boot of one of the Daewoo vehicles. The prosecution sought to lead this evidence in order to link it with evidence that the appellant was inhaling from a similar cylinder at the time of the raid. The ultimate purpose was to link him with the vehicle in which the cylinders were found.
The defence objected to the evidence. The trial judge ruled that it was admissible, but indicated that it would be inappropriate for the prosecution to lead evidence that the appellant was inhaling from the cylinder as opposed to simply having it in his possession. This intimation followed an expression of concern by the defence counsel that the evidence disclosed the use of what might be regarded by some jurors as a drug.
After the Crown led this evidence, the defence decided to elicit from the police officer who had given the evidence that the appellant and others were inhaling from the cylinders at the time of the raid. The reason for cross-examining on the topic is not altogether obvious, but the suggestion put on behalf of the appellant on appeal was that the presence of the nitrous oxide cylinders required some sort of explanation to the jury.
However that may be, the appellant now argues that the trial judge did not warn the jury that no inference adverse to the appellant should be drawn from the fact that the appellant was inhaling nitrous oxide.
In my view, the evidence required no such warning. There was no suggestion that the appellant was using an illicit drug. Furthermore, the inhaling of the nitrous oxide could hardly give rise to an adverse inference which would in some way influence the jury when deliberating on receiving charges. In the circumstances, no miscarriage of justice could have arisen from the failure to give a warning and this ground of appeal should be rejected.
I return then to consider the passages which I have quoted from the trial judge’s summing-up in order to examine them more closely in the context of the issues in the case.
In the case of the offence charged in the first count, there was no dispute that the property referred to in the particulars had been stolen. The crucial questions for the jury were whether the appellant had received the property into his possession and, if he had done so, whether he knew at the time that it was stolen. The evidence given by the appellant and his fiancée that he told Assheton to get rid of the blue sports car as soon as he found out it was stolen was at the core of the defence case on this count. A careful direction was required as to how the jury was to approach its task of evaluating this explanation.
The jury’s consideration could not be confined to whether it believed the defence evidence or accepted that evidence. Even if the jurors did not positively believe the defence evidence, they could not find against the defence if the evidence nevertheless gave rise to a reasonable doubt on the issue such as might arise if there was a reasonable possibility that the defence version might be true (cf.Liberato v The Queen (1985) 159 CLR 507 at 515; R v Dam (1986) 43 SASR 422).
I have referred earlier to a similar direction later in the summing-up when the trial judge was discussing the defence case in a more general way and he invited the jury to consider whether to accept the evidence of the appellant and, if the jury did accept it, whether that evidence exonerated him from all or any of the charges.
These matters fall to be considered along with the prosecutor’s comments on the use of the false name and the trial judge’s directions on that issue. I have expressed the view that this was not a lie about a material issue. However, this is not the impression which the jury would have received. The prosecutor suggested that the lie was positive evidence of guilt. The trial judge did not correct this statement, but invited the jury to consider the prosecutor’s submission and expressed the view that it was one of the three most pertinent aspects of the submissions on the issue as to whether the appellant knew that the vehicles which were the subject of counts 2 and 3 were stolen.
In my view the passages to which I have referred contain material misdirections. The directions relate to crucial issues and they include instructions as to how important evidence had to be assessed as well as the way in which false statements could be used by the jury. I cannot say that there was no risk of a miscarriage of justice. It would be inappropriate to apply the proviso.
I would allow the appeal against the convictions, set aside the verdicts and order a retrial on the three counts which were the subject of this appeal.
DEBELLE J. I agree with the reasons of Duggan J and with the orders he proposes.
WILLIAMS J. I agree with the reasons given by Duggan J.

[2002] SASC 368

20 December 2002