R v Organ

[1994] QCA 284

IN THE COURT OF APPEAL [1994] QCA 284

SUPREME COURT OF QUEENSLAND

C.A. No. 104 of 1994

Brisbane
[R. v. Organ]

BETWEEN

T H E Q U E E N
v.
GARY ROSS ORGAN

(Appellant)

Fitzgerald P.
McPherson J.A.

Demack J.

Judgment delivered 11/08/94
Joint Reasons for judgment by McPherson J.A. and Demack J.

Separate reasons by Fitzgerald P. agreeing as to order.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDSCRIMINAL LAW - STEALING AS A SERVANT - Employee of Telstra Corporation (Telecom) - Whether sufficient evidence to identify the property as Telstra's - Whether evidence only sufficient to infer receiving.

CRIMINAL LAW - DIRECTIONS TO JURY - Whether jury must be satisfied that property was recently stolen before inferring that appellant stole it - Whether special verdicts required in respect of each item.

Counsel:M. O'Sullivan for the appellant
T. Winn for the Crown
Solicitors:Suthers & Co. for the appellant
Director of Prosecutions for the Crown
Hearing Date:22 June 1994
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 104 of 1994

Before Fitzgerald P. McPherson JA. Demack J.

[R. v. Organ]

BETWEEN:

T H E Q U E E N

v.

GARY ROSS ORGAN Appellant

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 11/08/94

The circumstances giving rise to this appeal are set out in the judgment of McPherson JA. and Demack J. and need not be repeated. There was a strong circumstantial case against the appellant, and it is not surprising that he was convicted. It is nonetheless necessary to consider whether there is any basis for his appeal.

It is convenient to consider the matter by reference to the agricultural pipe, which, as McPherson JA. and Demack J. state, was, with the black polythene pipe, "the strongest individual items" in the prosecution case against the appellant. Also, as their Honours correctly state, the jury was entitled to convict the appellant on the indictment if the prosecution proved to the requisite standard that he had stolen any one of the items.

The facts in relation to the agricultural pipe may be briefly stated. The appellant was, at the material time, a Telecom employee. Daniel Spencer, the son of the appellant's friend who lived at Bundy Road, Imbil, in premises where the agricultural pipe and other property were found, gave evidence that, in about August 1993, he helped unload the agricultural pipe, which was tied with blue and yellow rope, together with some black polythene pipe, from a Daihatsu 4-wheel drive vehicle and trailer which the appellant had brought to the Bundy Road premises. Colin Arthur Smith, the appellant's immediate superior at the Telecom depot where they worked, identified the agricultural pipe as pipe which had disappeared at about that time from the depot, and identified the blue and yellow rope as Telecom rope. If the jury accepted that evidence, the inference that the appellant had stolen the agricultural pipe, i.e. taken it and converted it to his own use with the intention of permanently depriving Telecom of it, was irresistible. The other facts summarised in the judgment of McPherson JA. and Demack J. would have made it even easier to come to that conclusion.

I agree with the other members of the Court in rejecting the submission that the jury could not have been satisfied beyond reasonable doubt that the appellant had stolen the property rather than received it from another person after it had been stolen, that the trial judge was not required to order the particulars or direct the special verdicts sought by the appellant at trial, and that he was correct to refuse to rule at the end of the prosecution case that there was no case to answer.

The remaining question is whether the trial judge misdirected the jury. It is said that he erred when he told them that they could be satisfied that the appellant had stolen the property without also directing them that they first had to be satisfied that the property was recently stolen. It is sufficient to state that, on the evidence against the appellant in relation to the agricultural pipe, no such direction was called for.
Similarly, in my opinion, the trial judge was correct to tell the jury that the fact that the appellant was at the material time a Telecom employee was a matter which could be taken into account in determining whether he was guilty.

I agree that the appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 104 of 1994

Brisbane

Before Fitzgerald P.
McPherson J.A.
Demack J.

[R. v. Organ]

BETWEEN

T H E Q U E E N
v.
GARY ROSS ORGAN

(Appellant)

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & DEMACK J.
Judgment delivered the Eleventh day of August 1994

The appellant was found guilty at his trial in the District Court at Gympie on an indictment containing a single count that on a date or dates unknown between 1 January 1993 and 28 September 1993, he, being a servant of Telstra Corporation Limited, stole various items of equipment described in the indictment, which were the property of that Corporation. Telstra is better known as Telecom, and it is convenient to use that name here.

At the hearing of the appeal against conviction a further ground of appeal was added by amendment to the existing six grounds in the notice of appeal. Disregarding it for the moment, it is possible to regard each of grounds 1, 2 3, 5 and 6 of the original notice of appeal as being in one way or another related to the alleged insufficiency of the Crown case against the appellant, its lack of particularity, or what is said to be imprecision in the judge's summing up to the jury.

In alleging that the stealing took place on a date or dates unknown between 1 January and 28 September 1993, the indictment relied on s.568(2) of the Criminal Code. During that period the appellant lived at Gympie and worked, as he had done for some years, as a linesman for Telecom. Apart from two safety belts found at the appellant's residence, all of the property described in the indictment was located on 27 September 1993 in the course of executing a search warrant at premises at Bundy Road, Imbil. Some of the items were found in the house at that address; some of them were in a shed or sheds on the land; some were simply lying on the ground outside. A fence had been erected using star pickets and strung with some of the rope mentioned in the indictment. A length or lengths of black polythene piping were found to have been laid in trenches that had been dug at the site and then covered over, leaving a coil of the piping protruding from the ground. Judging by what can be seen in the photographic exhibits, it is a reasonable inference that some form of drainage or irrigation was being installed.

Many of the items located bore the name "Telecom" or the Telecom logo. That was so of some black and some white piping found at the Bundy Road property. It was also true of a very large quantity of blue and yellow Telecom rope; a PVC pit and a PVC pit cover; a pole bag; and an epoxy resin kit. The two safety belts were also marked in that way. The other items were not distinctively marked; but Colin Arthur Smith, who was the local depot supervisor for Telecom in the area and the appellant's immediate superior, identified a particular bundle of agricultural pipe found tied with Telecom rope at Bundy Road, which is shown in exs. 5 and 6, as the remnant of what had been used in laying lines between Gympie and Bell Ridge. He said it had been left at the north eastern end of the Telecom depot, but he had noticed it was missing approximately two weeks before it was found at Bundy Road on 27 September 1993. In addition, steel star pickets found at Bundy Road were proved to be of a type specially manufactured by BHP and supplied only to Telecom.

Other items located there, such as a large roll of copper guard wire, a ladder, some bolts, a pole bag, electrical tape, and three boring rods, were similar to equipment used by Telecom, but could not be positively identified as coming from that source. The most that could be said was that they were consistent with property of that description used by Telecom.

The house at the Bundy Road property was occupied by Marion Linda Spencer. She was referred to by Edward Thomas Munn, who gave evidence at the trial, as the appellant's "girlfriend". Like the appellant, Munn was a Telecom linesman. When he was working with the appellant in the area in early September 1993, Munn was invited to have his lunch at the Bundy Road property. While there he looked in a shed on the property and noticed some agricultural pipe, which he thought was Telecom pipe, and also some white pipe, which he said was "definitely Telecom's". He reported the matter to his supervisor. On a later occasion in September when he was there again, he saw that a fence consisting of blue and yellow rope strung on steel star pickets had been erected using what he recognised as Telecom property. On 17 September 1993, which was after that occasion, Smith went to the Bundy Road property, and used a home video camera to film the fence.

Munn's description of Ms. Spencer as the girlfriend of the appellant may be contrasted with that used by her son Daniel. She did not give evidence herself, but he did. Daniel Spencer described the appellant, whom he had known for about eight months, as an acquaintance of his mother. He said that in 1993 he had often seen the appellant at Bundy Road: probably, he thought, about once every fortnight. The appellant would sometimes be there for only an hour, but would sometimes stay the night. In about August 1993 Daniel helped unload a Daihatsu 4-wheel drive vehicle and trailer brought to Bundy Road by the appellant. What they unloaded was the big bundle of agricultural pipe pictured in exs. 5 and 6, which was tied with blue and yellow rope, as well as some black polythene pipe. They put those items in a shed on the property, which appears to be where they were found on 27 September and photographed as shown in ex. 5. When Daniel returned from army camp shortly after 11 September 1993 he saw that trenches had been dug in the back yard and that a fence had been erected consisting of star pickets and blue and yellow rope.

On this evidence it was open to the jury to conclude that all the articles located and identified on 27 September 1993 at Bundy Road were Telecom property. For the Crown the strongest individual items were the agricultural pipe and the black polythene pipe. Smith testified that the agricultural pipe depicted in the photographs exs. 5 and 6 was the same as that which in about mid-September he had noticed was missing from the north eastern depot. Unlike much of the black polythene pipe, the agricultural pipe did not carry the Telecom name or logo, and in cross-examination Smith agreed there was "nothing to say that that is Telecom property". That was, however, not how he identified it. Shown exs. 5 and 6 depicting the agricultural pipe, Smith said "it was in the same state as what it was when it was found". He may have identified it by the blue and yellow rope with which (as ex. 5 shows) it was tied, or by some other means. He was not asked to say what it was. He was obviously a careful witness,and his evidence was uncontradicted. The jury were entitled, as they evidently did, to accept and act on his evidence that the agricultural pipe located at Bundy Road was the pipe that in about mid-September had been found to be missing from the Telecom depot.

Some of the black polythene pipe had been laid and for part of its length covered over in the trench. One end of what was visible bore Telecom markings. It is possible that some of the unmarked black pipe located at Bundy Road came from a source or sources other than Telecom. Unmarked pipe like that was sometimes bought locally by Telecom; but it is in widespread and general use. In this instance, however, the appellant himself provided a rational link between Telecom and the property found at Bundy Road. He was employed by Telecom at the time in question. In his employment he had access to Telecom property of the kind found at Bundy Road. Between 22 July and 30 August 1993 he was away from work on sick leave. It was in late July or early August that Daniel Spencer saw him arrive at Bundy Road with the trailer and helped him offload the black polythene pipe together with the agricultural pipe tied with blue and yellow rope that Smith identified as coming from the depot.

When Daniel returned from camp on about 12 September 1993 he found trenches dug and pipes laid. It is reasonable to infer that the work had been done by the appellant. He had brought the pipes there, and laying it was work of a kind that linesmen do for Telecom. By bringing Telecom's pipes to Bundy Road the appellant converted them to his own use within the meaning of s.391(1). The subsequent laying of the pipes in trenches and covering them over was the clearest indication of intention that the pipes should remain at the site, so that Telecom should be permanently deprived of them. The trial judge was correct in refusing to require the prosecution to provide particulars of the conversion. If the property belonged to Telecom there is no doubt that the appellant converted it.

It is true that the appellant might have come by the pipes in lawful fashion. There was, however, no evidence to suggest that that is what had happened. The appellant did not testify at the trial, and, so far as the evidence goes, he at no time gave any explanation of how he came by any of the property. It was put to Smith in cross-examination that Telecom sometimes disposed of its property at auction. Apart from used vehicles, Smith was not aware of any such practice. He did not know what other supervisors might do elsewhere. He said that leftover pipe was not sold but cut up and recycled, and that any old blue and yellow rope was always burnt. In the particular case of the agricultural pipe, the possibility that it had been lawfully acquired by the appellant was excluded by Smith's evidence that it was the same pipe as had gone missing from the depot. The jury evidently accepted his evidence to that effect.

An alternative submission on behalf of the appellant was that, even if there was nothing to show lawful acquisition, there was equally nothing to show he had not acquired the property as a mere receiver knowing it to have been stolen, rather than as a thief. The foundation for the submission was the observation of Griffith C.J. in Trainer v. The King (1906) 4 C.L.R. 126, 132, applied in R. v. Davies [1989] 1 Qd. R. 171, 173, that:

"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."

Far from assisting the appellant in this case, both the remarks of Griffith C.J. and the decision in R. v. Davis are, so far as relevant, against him. The presumption, if any, is that the person in possession stole the article himself. Only if it is "impossible" that he stole it, is it to be inferred that he merely received it. In R. v. Davis it was precisely because it was not impossible for the appellant himself to have been the thief that a conviction for receiving was quashed by the majority of the Court.

The present case is, however, not one in which it was necessary for the prosecution to rely on any presumption arising from bare possession of goods known to be stolen. Here there was affirmative evidence from which legitimate inferences could be drawn. Irrespective of whether the appellant was in possession of any of the property found at Bundy Road on 27 September, he was seen by Daniel Spencer in late July arriving there with the agricultural pipe that was later identified by Smith as missing from the Telecom depot to which the appellant had access in the course of his work. In these circumstances the most obvious explanation is that the appellant himself stole the pipe from Telecom. There is on the evidence no reason to suppose that someone else stole it and passed it on to him.

The point at issue is allied to that raised in the recently added ground 7. It is that the judge misdirected the jury in saying that they could be satisfied, in the absence of an explanation, that the appellant had stolen the property, without also directing them that they first had to be satisfied that the property was recently stolen : cf. Bruce v. R. [1987] A.L.R. 219. However, for the reasons already given the present case was not one in which recent possession of stolen property was critical, or even perhaps relevant, to proof of stealing, and in summing up the judge did not invite the jury to rely on recent possession as a possible basis for a verdict of guilty. He did refer to the handling of stolen property; but he did so in the course of explaining specifically that the appellant was not charged with receiving stolen property, but with stealing. What he told the jury was:

"... you must be satisfied before you convict him that he stole it rather than received it from somebody knowing it to be have been stolen or received from someone else. You must be satisfied that he was involved in the taking or the conversion of it in the way I described. It is an inference you are entitled to draw."

He went on to explain to the jury that they might, not must, if satisfied of all other matters, be led to a conclusion that the appellant had stolen the property, rather than received it from someone else, by the evidence that the appellant was a Telecom employee at all relevant times. No redirection was sought at the trial on this aspect of the summing up, and we do not consider it to have been erroneous. The inference suggested by the trial judge was one that could legitimately be drawn.

There was therefore evidence on which the jury could properly conclude that the appellant had stolen the agricultural pipe and the black polythene pipe from Telecom. Once that finding was made, it would have been open to the jury to extend the same conclusion to other items of property whether or not they bore the Telecom name or markings. If the appellant was prepared to take the agricultural pipe from Telecom there was no reason for supposing he would have been averse to taking other items of property as well. It was not the only possible inference; but it was one that the jury were entitled to draw, and it was for them to decide whether they would do so : R. v. Stewart, ex parte Attorney-General [1989] 1 Qd.R 590. The trial judge was therefore right in refusing to rule there was no case to answer at the close of the prosecution evidence. In any event, it was in law not necessary for the Crown to prove that all the articles in the indictment were stolen by the appellant.

To secure a verdict of guilty, it was sufficient to prove that he had stolen any one of them. See R. v. Ward [1963] Qd.R. 56, 66; R. v. Lindsay [1963] Qd.R. 386-401.

This raises for consideration the further ground in para. 4 of the appeal. It is that, when requested to do so by defence counsel, the judge declined to direct the jury to return special verdicts in respect of each of the items of property referred to in the indictment. There is, however, nothing in s.624 of the Criminal Code to say that a judge is bound on an application by defence counsel to require special verdicts on each item of property charged. No authority was cited in support of such an interpretation, which is opposed to the use of the permissive "may" in s.624. Failing to require special verdicts in a case like this is capable of creating difficulties when it comes to sentencing; but there is no appeal against sentence in this case. Under s.624 the question of special verdicts was a matter for the discretion of the trial judge, which is not shown to have been wrongly exercised or to have caused the trial to miscarry.

The case against the appellant was circumstantial; but it was nevertheless a strong one. The property found at Bundy Road included items that bore the Telecom name or logo. The appellant worked for Telecom and had access to such property. He was seen bringing some of it to Bundy Road. Among the items he brought was a quantity of agricultural pipe that was later identified as having gone missing from the Telecom depot. There was evidence that it was property of a kind which it was not the practice to sell or give away. It was open to the jury to conclude that he converted it with the intention of permanently depriving Telecom of that property.

The appeal against conviction should be dismissed.