RAPTOPOULOS v Police - [2005] SASC 374

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RAPTOPOULOS v POLICE
Judgment of The Honourable Justice Duggan
29 September 2005
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against convictions for property offences - whether the evidence supports the magistrate's findings - consideration of doctrine of recent possession - appeal dismissed.
Bruce v R (1987) 74 ALR 219; R v Brady & Smythe [2005] SASC 277, applied.
R v Wanganeen (1988) 50 SASR 433, discussed.

RAPTOPOULOS v POLICE
[2005] SASC 374
Magistrates Appeal

DUGGAN J. The appellant has appealed against conviction on three counts of theft, two counts of serious criminal trespass and one count of interference with a motor vehicle without the owner’s consent.
It was alleged at the trial before a magistrate that the offences were committed on the morning of 13 July 2004 at Somerton Park.
At approximately 6.40 am on 13 July Mrs Nelson, who lives on the corner of College Road and Tarlton Street, Somerton Park, noticed that some of her property was missing. In particular, her handbag, which she had left in the kitchen only a few minutes before, was no longer there. She reported the matter to the police who arrived at approximately 7.10 am.
The police officers made some enquiries at Mrs Nelson’s house and, as they were leaving, a resident who lives in the area, Ms Larkin, approached them. She told them that she had seen a man acting suspiciously in the garden of a house at College Road not far from Mrs Nelson’s house. Mrs Larkin gave evidence at the hearing of what she had seen at the house. She said that, at approximately 7.35 am, she was walking her dog in the area and, while she was exercising the dog in a park, she noticed it run over to the backyard fence of a property at 76 College Road which overlooks the park. The dog growled as it approached the fence and Ms Larkin saw a man who appeared to be crouching down in the yard. She then walked to the front of the house where she noticed the man in the front garden. There were two back-packs nearby. She then went to Mrs Nelson’s house where she had seen a police car a short time earlier. It was then that she told the officers of what she had seen.
The officers, Constables Graetz and Bartlett, then drove to the house at 76 College Road. Constable Bartlett saw the appellant standing behind some bushes in the front yard of the house. The appellant said he was waiting for a taxi to go to Centrelink. Constable Bartlett observed three back-packs a short distance away from the appellant. The police officers asked the appellant for identification and he started looking through each of the bags. The police officers themselves searched the bags and found various items belonging to Mrs Nelson and her husband, including a leather bag, a digital camera, a mobile telephone and a personal computer. The bags also contained various items of property belonging to Mr Lucas who lives in Skipton Avenue, a few houses away from 76 College Road. With the exception of a telephone, the property had been taken from Mr Lucas’ car which was parked on his property. The telephone had been taken from a billiard room which is located separately from his house.
When questioned at the scene, the appellant said he had been visiting a friend who lives on the end of Anzac Highway and that he was waiting for a taxi to go to Centrelink. Shortly afterwards, a taxi arrived and the appellant ran from the police officers. However, he fell and was apprehended and arrested. When he was searched an amount of $1480 was found in the pocket of his trousers. Mrs Nelson said this amount had been taken from her house. Keys taken from the Nelson house were also found in a pocket of the appellant’s trousers.
The appellant was later interviewed formally. He exercised his right not to answer questions about the property or the incident. He was charged with offences arising out of the taking of the property from Mrs Nelson and Mr Lucas.
The learned magistrate held that the appellant had been found in possession of property stolen from the houses occupied by Mrs Nelson and Mr Lucas. He excluded, as a reasonable possibility, that the appellant had received the property from another. He also excluded the possibility that the appellant had come into possession of the property innocently. He then concluded that the offences charged in the information had been proved.
It was argued on appeal that there was insufficient evidence to support the convictions on each of the offences charged. It is not in dispute that the appellant was in possession of the stolen property. However, it was argued that the appellant could not be found guilty of the three theft offences as the evidence left open the reasonable possibility that he received the property from another person. It was implied in the argument that the evidence was also insufficient to establish beyond reasonable doubt that the appellant was a trespasser on the premises from which the items were stolen.
The circumstances of the case give rise to a consideration of the doctrine of recent possession which was summarised in the judgment of Mason CJ, Brennan, Deane, Dawson and Gaudron JJ in Bruce v R (1987) 74 ALR 219 as follows:
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.
The application of the doctrine was also explained by King CJ in R v Wanganeen (1988) 50 SASR 433 at 436 when dealing with directions appropriate for a jury in cases in which the doctrine requires explanation:
A sound summing up in a case which depends to a significant degree upon the fact of possession of the recently stolen property will point out to the jury that such possession is capable, in appropriate circumstances, of supporting an inference of guilt of any crime in the course of which the property was stolen or, depending upon the circumstances, of receiving the property knowing it to have been stolen. It will explain that whether such an inference should be drawn beyond reasonable doubt depends upon all the circumstances of the case including the proximity in time of the possession to the theft and anything that is known of the circumstances of the possession, as well as upon the weight which is attached to any explanation which the accused has given as to the circumstances in which he came into possession of the property. It should, generally speaking, relate recent possession to the onus of proof, by directing the jury that if any explanation given by the accused, or the other circumstances of the case, or both, leave the jury in doubt as to whether the accused stole or criminally received the property as the case may be, the case against him has not been proved and the verdict should be not guilty, R v Aves (1950) 34 Cr App R 159. It may be necessary, depending upon the facts, to direct the jury that although no inference adverse to the accused is to be drawn from his exercising his right to silence either before trial or at trial, they are nevertheless entitled, if they see fit, to draw the inference of guilt from the fact of possession if the exercise of the right to silence leaves the possession unexplained, R v Bruce (1987) 61 ALJR 603.
It was conceded in argument that the elements of recent possession had been established in the present case. The issue in contention was whether the evidence was of such a nature as to justify the magistrate’s finding that the appellant was the thief and not a receiver of the stolen property.
In my view, the evidence was sufficient in this regard. It would appear that the offences on both properties were committed within a short time of one another and, further, that only a short period of time elapsed between the commission of the offences and the time at which the appellant was found in possession of the property. The offences were committed on premises which were only a short distance apart and the appellant was seen, apparently hiding, on premises a few houses away from each of the premises at which the offences were committed. It would appear that all the property taken from the two premises was found in the possession of the appellant. The combined effect of this evidence is such as to support the finding that he was involved in the theft of the property.
As the doctrine of recent possession is simply an illustration of the operation of circumstantial evidence, the issue for the magistrate was whether the prosecution had excluded every reasonable hypothesis consistent with innocence: R v Brady& Smythe [2005] SASC 277. On an appeal in which it is claimed that the verdict was unreasonable or cannot be supported having regard to the evidence, the issue is whether –
there was sufficient evidence upon which the jury, fulfilling their duty not to convict unless the inference of guilt was the only inference which they considered that they could rationally draw from the circumstances, could have convicted [the appellant].
Plomp v The Queen (1963) 110 CLR 234 at 252.
In the present case, the words “inference of guilt” are to be understood as referring to guilt of the offence of theft as opposed to receiving.
However, the magistrate was entitled to reject the hypothesis that the appellant was simply the receiver of the stolen property. On the evidence which I have summarised it was open to the magistrate to exclude, as a rational hypothesis, the suggestion that the appellant was at the scene in possession of all the stolen property a short time after it had been stolen, but did not take part in its removal from the two premises.
It was open on the evidence for the magistrate to find that the appellant stole the property and that he trespassed on the respective premises of the owners of the property in order to do so. It was also open to the magistrate to find that the appellant interfered with Mr Lucas’ vehicle in order to steal his property.
The appeal will be dismissed.