R v Whitton

[1996] QCA 231

IN THE COURT OF APPEAL	[1996] QCA 231
SUPREME COURT OF QUEENSLAND

C.A. No. 36 of 1996

Brisbane

BeforeMacrossan CJ
Pincus JA

Byrne J

[R v. Whitton]

THE QUEEN

v.

RUSSELL PAUL WHITTON

Appellant

Macrossan CJ
Pincus JA

Byrne J

Judgment delivered: 12/07/1996.

Judgment of the Court.

APPEAL DISMISSED

CATCHWORDS: CRIMINAL LAW - stealing - whether verdict unsafe and

unsatisfactory - whether circumstantial evidence insufficient.

Counsel:	Mrs K. McGuinness for the appellant. Mr D. Bullock for the Crown.
Solicitors:	Legal Aid Office (Queensland) for the appellant. Director of Public Prosecutions for the Crown.

Hearing Date: 1 May 1996

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12/07/1996.

The appellant was convicted of stealing money and jewellery at Goondiwindi. The appeal is brought on the ground that the verdict found against him is unsafe and unsatisfactory. The contention advanced on his behalf is that the circumstantial evidence on which the Crown relied was insufficient to implicate him as the perpetrator of the crime.

Money, some $17,000 in notes, coins and cheques, and jewellery valued at about $25,000, were stolen from a safe in the office of the Victoria Hotel at Goondiwindi around midnight on 13 October 1995. The hotel was licensed to trade until that hour. The theft was discovered some few minutes after midnight when one of the hotel employees saw two persons, neither of whom was the appellant, picking up money scattered in the hotel foyer. The appellant and a companion had been seen leaving the hotel with the appellant in possession of a Victoria Bitter half beer carton on the top of which was placed a packet of potato chips. This was at some time between 11.50pm and midnight. An edge or edges of the carton had been folded or bent in a way which made it possible, the Crown suggested, for the hotel assistant manager, a Mr Leo, to identify it later.

Leo, at about 11.50pm had been endeavouring to serve the appellant with takeaway drinks but the appellant was hesitating and changing his mind as between Ouzo or Fosters beer. While waiting for the appellant to make his final decision, Leo said that he began folding the edges of a Victoria Bitter beer carton containing drinks which were to be provided for the appellant. The appellant's hesitation was such that Leo finally put the carton to one side and left the appellant to be served by others. Subsequently he observed the appellant leaving the hotel with the carton and the packet of chips. Other evidence from another member of staff was that he had sold and handed over to the appellant the carton and its contents, taking the carton from the place where it had been left by Leo.

The money and jewellery stolen were kept in a safe in the hotel office, and the office was itself kept locked. Attention was directed to the theft when it was seen that the locked door to the office had been forced and split with the bottom part left ajar. It was then discovered that the money and jewellery had been taken.

An investigating police officer found a packet of Samboy tomato flavoured chips lying near the safe on a tray which had previously been within the safe. Evidence from the hotel employees was that only one packet of chips had been sold that evening and that was a packet matching the description sold to the appellant.

Only some $1,700 of the stolen cash was recovered. Those investigating the theft shortly after its occurrence found a trail of money apparently dropped at intervals leading on to a church yard some distance away and perhaps going beyond it to a Red Rooster establishment. In the morning of 14 October bundles of money were found on the front lawn of the church and coins both inside the grounds and outside on the footpath. There was also a set of keys found in the church yard that had previously been in the hotel safe. Early in the morning of 14 October an investigating security officer also found a Victoria Bitter half beer carton inside the church yard fence. The officer noted that one edge was slightly folded over. When this carton was shown to Mr Leo, he claimed to be able to identify it positively as the one he had held folding its edges while waiting for the appellant to make up his mind about his purchase.

To complete the picture so far given it should be mentioned that there was evidence that the appellant had been picked up by some companions in a motor car about forty-five minutes or so after the theft had occurred. This occurred in another part of Goondiwindi but the distances were such that there was ample time for the appellant to have proceeded from the hotel when he was observed to leave it, and go on to the church yard and back to the point where he entered the motor vehicle.

The appellant did not give evidence at the hearing and no evidence was called

on his behalf.

The only question is whether in the absence of direct evidence of the identity of the offender and of other positive explanation, the discovery of the Victoria Bitter beer carton at a point along the money trail and the discovery of the packet of potato chips within the office of the hotel was evidence which could reasonably be relied upon to convict. There was weight in the evidence that only one packet of chips had been sold that evening and that was the packet sold to the appellant and the evidence that the beer carton could be identified as the one sold to him. In the absence of any other conflicting account casting doubt upon the significance in the circumstances of these two pieces of evidence connecting the appellant with the theft, there is no reason for thinking they were insufficient to prove his involvement or that the guilty verdict should be regarded as one not reasonably open on the evidence or one that was unsafe or unsatisfactory. The fact that the charge as originally framed against the appellant was one of breaking, entering and stealing but the jury were unable to agree on the additional elements and found on an alternative basis of stealing alone, merely demonstrates that they were not satisfied of the appellant's criminal involvement in the breaking of the office door that had undoubtedly occurred. They were satisfied, as they were entitled to be, of his involvement in the theft which obviously followed.

The appeal should be dismissed.