Regina v Claxton

[1999] NSWCCA 303

CITATION:	REGINA v CLAXTON [1999] NSWCCA 303
FILE NUMBER(S):	CCA 60615/98
HEARING DATE(S):	16 September 1999
JUDGMENT DATE:	16 September 1999
PARTIES :	Regina v Bruce Claxton
JUDGMENT OF:	Sheller JA at 1; Grove J at 35; Hidden J at 36

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/0081
LOWER COURT JUDICIAL OFFICER:	Mitchelmore J

COUNSEL:	G Nicholson QC - Appellant MM Cunneen - Crown
SOLICITORS:	Mark Rumore - Appellant S E O'Connor - Crown
CATCHWORDS:	CRIMINAL LAW - receiving of stolen property - horse float - where trial Judge incorrectly stated in summing up time at which accused must have knowledge that goods were stolen - where correct time of knowledge later stated by trial Judge - where no recognition of prior mistake
ACTS CITED:	Crimes Act Criminal Appeal Act 1912
CASES CITED:	Andrews v The Queen (1968) 43 ALJR 57
DECISION:	Appeal allowed; Conviction of appellant quashed; Judgment and verdict of acquittal to be entered

IN THE COURT OF

CRIMINAL APPEAL

60615/98

SHELLER JA
GROVE J
HIDDEN J

Thursday, 16 September 1999

REGINA v Bruce CLAXTON

JUDGMENT

1    SHELLER JA: On 18 August 1998 the appellant, Bruce Allan Claxton, was indicted before his Honour Judge Mitchelmore on two alternative counts. The first was that between 18 and 19 September 1997, at Lawson, he stole a 1997 model Builtwell Stanza brand horse float, the property of Shauna Bottrell. The alternative charge was that between 18 and 27 September 1997, at Castle Hill, he received and had a 1997 model Builtwell Stanza brand horse float, the property of Shauna Bottrell before then stolen, the stealing of which amounted to a felony and:

"he, the said Bruce Allan Claxton, at the time when he received the said property, knowing the same to have been stolen."
The offence charged in the second count was an offence under s188 of the Crimes Act . The appellant pleaded not guilty to both charges.

2    On 20 August 1998 the jury returned a verdict of not guilty on the first count and guilty on the second. On 4 December 1998 the appellant was sentenced to a minimum term of one year commencing on 3 October 1998 and expiring on 2 October 1999, and an additional term of one year commencing on 3 October 1999. The appellant appeals against his conviction.

3    The Crown case, in summary, was that during the night of 18/19 September 1997, a Builtwell Stanza brand horse float, the property of Ms Bottrell, was stolen from outside her residence at Lawson. A witness, Belinda Zaiter, gave evidence that on 27 September she noticed a "For Sale" sign for a horse float at Woodville Avenue, Granville. She bought the horse float from the appellant for $2,350 and paid a deposit of $300 to him. The appellant told her that the float was his and had been sitting on his property for 20 years. When Ms Zaiter showed surprise, he said that he had rebuilt it.

4    The appellant gave her a receipt showing the letters and numbers HF2745 which were the same as those appearing on the front bars of the horse float. The horse float did not have any registration plate or registration document accompanying it. Ms Zaiter said that the appellant told her that it was his float, that he had recently divorced from his wife, that he had lived on a farm up at Mudgee and that she got the four wheel drive, he basically got the horse float and a "bombie" old car and he bought the float down here to Sydney to try and sell it.

"He told me that the float had been sitting on his property for 20 years. When I showed surprise at that he told me he had rebuilt it all, had stripped it back, sandblasted it and rebuilt it. Hence that's why it looked in such good condition."

5    When Ms Zaiter later looked more closely she noticed stickers that had been put near the tail-light, obstructing other stickers already there. That and other matters she noticed, including the very good condition of the float, which she said smelt like it was a new float, led her to contact the manufacturer and Ms Bottrell and report the matter to the police.

6    Ms Bottrell gave evidence that she had purchased a float from Bolger Four Wheel Drive Centre for $5,000. It was placed in front of her house. She last saw it at about 7.30pm on 18 September 1997. Ms Bottrell received a telephone call from Ms Zaiter and went to have a look at the float that Ms Zaiter had. She recognised it as hers because the "Bolger Four Wheel Drive" stickers, which were underneath the tail-lights on either side of the rear, were still there. She also noticed that the left and front chest bars had been torn due to an occasion when she was transporting her own horse. Three hardboard cleat boards on the back of the coach box had been put there by her brother-in-law and those were still there. They did not come with the float when she purchased it.

7    The Crown case was that the modifications were consistent with disguising the identity of the float by those modifications. Reference is made to the stickers put over the existing stickers and to repainting.

8    On 4 October 1997 the appellant presented himself at the Ermington Police Station where he was interviewed and the interview was recorded. He gave his address as 20 Hillview Place, Glendenning. At all times he maintained he had bought the float from another person. He told police he had a receipt for the float which he had recently purchased at Castle Hill. He showed police the receipt he had obtained from the person who sold it to him. That receipt stated:

"I, Patrick Johnson, do hereby sell one double horse float for the sum of $1500 in full."

9    The paper was dated 22 September 1997 and bore a car registration number. The appellant admitted selling the float to Ms Zaiter and denied knowledge of the theft or alteration of the float. At the time he sold the float there was no suggestion that he gave any false name or false address.

10    At the trial, the appellant did not give or call any evidence on his behalf. The amended grounds of appeal now relied on are:

"1. His Honour erred in law in directing the jury there was no doubt that someone stole the horse float;

2. His Honour misdirected the jury as to the elements of the offence of receiving;

3. There has been a miscarriage of justice within the meaning of s6 of the Criminal Appeal Act (1912)."

11    His Honour's summing-up began on 19 August 1998 and continued on 20 August 1998. Early on the first day of the summing-up his Honour isolated areas in which he said there was no dispute. These included:

"It is not in dispute that someone stole Shauna Bottrell's horse float. There is no dispute that during the same month, a little later in that month, the accused endeavoured to sell the horse float to Mrs Zaiter. There does not seem any dispute that certain alterations had been made to the horse float."

12    A little later in that part of the summing-up his Honour said:

"But other than the areas where there is no dispute I will be endeavouring to express no opinion on the facts at all. If you suspect I hold an opinion or if indeed express an opinion let me make clear to you that you are obliged to disregard that opinion unless it accords with your own independent assessment of the facts."

13    On the second day of the summing-up at the start, his Honour said:

"There seems no doubt someone stole Shauna Bottrell's horse float. Someone cut the chain secured to the telegraph pole. It was removed from outside her home without her consent. That occurred on 18 September last year and later in September the accused sold the trailer to Mrs Zaiter. There is no dispute about those two matters."

14    At the conclusion of the summing-up on matters arising, Mr Hancock, who appeared for the appellant at the trial, said:

"The only thing, your Honour perhaps would be that, in terms of the property of Ms Bottrell that was stolen and the Crown has led evidence of was in possession of the accused's person - that evidence, your Honour, I think it's a matter for the jury to conclude whether they are satisfied the Crown has satisfied them--"

At that point Mr Hancock was apparently stopped by his Honour saying:
"Right, yes, no, I agree with that. Bring back the jury. If you decide between the two of you to write out those--"

Then there was an interruption. Later in the presence of the jury his Honour said:
"Members of the jury I wanted to add to my summing-up. You have got to be satisfied beyond reasonable doubt that the accused either stole or guiltily received a 1997 model Builtwell horse float, the property of Shauna Bottrell.
Mrs Bottrell told you that the float was stolen on or about 18 or 19 September 1997. She told you of many indicia which indicated to her the stolen float was the one that the accused sold to Belinda Zaiter. The photos are before you, there are details. For example it was said that the dividers of the float were covered in black padded vinyl. There were teeth marks in the padding; there was an air-vent; one of the kickboards had scrapemarks.
As I understand it, it was not suggested by Mr Hancock that the accused sold a float other than Ms Bottrell's stolen float.
But I tell you once more you must be satisfied beyond reasonable doubt the accused stole or intentionally and guiltily received the 1997 Builtwell float, the property of Shauna Bottrell as alleged in both counts one and count two of the indictment. You must be satisfied of the matter to the requisite degree I have set out to you earlier in the summing-up."

15    On the first day of the summing-up his Honour said about count two:

"Count two in the indictment alleges that between 18 and 27 September 1997 at Castle Hill, the accused did receive a 1997 model Builtwell horse float the property of Shauna Bottrell before then stolen and he the said Bruce Claxton the accused in this trial at the time he received the property knew that the horse float was stolen."

16    Later on the same day his Honour said:

"In the alternative your task is to decide whether the Crown have proven to the extent to which I will shortly refer that between 18 and 27 September at Castle Hill the accused received a Builtwell horse float the property of Shauna Bottrell before then stolen and that the accused at the time he received the property knew that it was stolen."

These were the only directions given on that day about the elements of the offence charged in the second count.

17    On the second day at an early stage in the resumption of the summing-up, his Honour said, after referring to the essential elements of larceny:

"I set out in a little more detail the essential ingredients of the charge of receiving stolen property.
The elements of the offence are that the property was stolen, that the accused received it or disposed of it and that at the time the accused received or disposed of the property he knew it to be stolen.
So that the first element is that the property has got to be stolen property. There is no doubt someone stole the horse float.
Secondly the accused has got to be in possession of the property. There is no doubt he was in possession of the property. Indeed he endeavoured to sell the property. So neither of those two ingredients will trouble you to a great extent. It is clear the float was stolen. It is clear the accused had it in his possession.
The Crown must prove, and prove beyond reasonable doubt that at the time when the accused received or disposed of the property he knew the horse float was stolen.
The receipt of stolen goods in the circumstances where the person receiving them does not know the goods were stolen does not constitute the crime of receiving. If it did many people who receive stolen goods quite innocently could find themselves charged with this offence of receiving. It is an essential feature of the offence that a person receiving the goods knew that they were stolen."

18    I should say immediately that the Crown concedes that the references by his Honour to the accused's knowledge at the time of disposal of the property, was an error.

19    A little further on in the summing-up his Honour directed the jury about recent possession. In respect of that he referred to the jury being entitled to draw against the accused "an inference either that he stole it or that he received it knowing it was stolen".

20    Some way further on in the summing-up his Honour referred to the Crown case and said:

"The Crown states clearly the accused either stole the horse float or possessed it and tried to sell it knowing it was stolen. The Crown say the accused possessed a recently stolen horse float."

21    Again it is conceded that what his Honour there said, in referring to knowledge at the time of sale, was an error and presumably did not reflect the Crown case. However, no objection was taken to this by the Crown.

22    Later in the summing-up his Honour said:

"And the Crown listed for you a set of, a series of sets of circumstances that the Crown say indicate that the accused either stole the float or received it knowing it was hot or stolen."

23    Referring to Mr Hancock's submissions, his Honour said:

"Mr Hancock says in relation to count two the receiving charge the Crown have not proven beyond a reasonable doubt that when the accused received the horse float, he knew it was stolen."

24    On two later occasions, one of which I have already quoted, his Honour referred to "guiltily received". Counsel for the appellant sought no redirection in respect of the errors to which I have referred, and which were conceded by the Crown.

25 Section 188 of the Crimes Act deals with separate offences of receiving or disposing of or attempting to dispose of property, the stealing whereof amounted to felony, knowing the same to have been stolen. In the present case the charge was as I have set it out, receiving property knowing the same to have been stolen, which undoubtedly means, as was conceded, knowing the same to have been stolen at the time of receipt. The appellant was charged with receiving, not disposing of stolen property. Accordingly, the critical time of knowledge was the time when the appellant received the goods.

26    In Andrews v The Queen (1968) 43 ALJR 57 at 62 the High Court said:

"It is not pedantry to insist that an accused be tried for the crime for which he is charged. The function of the proviso to s6 of the Criminal Appeal Act 1912 is not to provide a Court of Criminal Appeal with a refuge from the performance of the exacting duty, imposed in the interests of the due administration of the law, of close analysis of the sufficiency of the evidence led to support the essential ingredients of the precise charges laid, and of the manner in which a presiding judge has instructed the jury, as he should, in the elements of the offence and the relevance of the evidence thereto."

27    In the present case, as I have said, the error is one that, quite properly, the Crown conceded. That error is the point raised in the second ground of appeal. The Crown has submitted that there was overwhelming evidence in the case that the horse float was stolen from Ms Bottrell and was shortly after, in a disguised condition, found in the possession of the appellant.

28    The Crown submitted that the jury were entitled to, and plainly did, accept Ms Zaiter's evidence of the attempted sale and the appellant's claim to Ms Zaiter that he had had the float for 20 years. It is pointed out that the receipt which was produced at the interview and became an exhibit was questionable, and the author of it was not called.

29    It is submitted on behalf of the Crown that there was no reasonable inference consistent with the appellant's innocence. On the other hand Mr Nicholson QC, who appeared for the appellant, stressed that it was left open to the jury to convict on the basis that, while satisfied that the goods were acquired innocently by the appellant, they were also satisfied beyond reasonable doubt that at the time that he sold them to Ms Zaiter, he knew they were stolen. This, it was said, would explain or might be thought to explain, the goods being handed over to Ms Zaiter, a person unknown to the appellant, for $300, a proportion of the purchase price.

30    In the summing-up, although his Honour later correctly described the essential time of knowledge, in at least three places where he was telling the jury what the essential elements of the offence were, his Honour erred.

31 The Crown submitted that in this case there has been no miscarriage of justice and relied upon the proviso to s6(1) of the Criminal Appeal Act. In this case it is, I think, important to be particularly mindful of the passage that I have quoted from the decision of the High Court in Andrews' case. To my mind the error here was central to the offence charged in the second count. It is not, I think, an error that can be put aside or ignored because of the strength of the Crown case, or because, later, his Honour correctly stated the elements of the offence. His Honour at no stage acknowledged his earlier mistake and drew attention to it and corrected it to the jury.

32    In all the circumstances I think this is an error which requires this Court to allow the appeal and set aside the conviction. That being so, it is not necessary for me to deal with the first and third grounds that were raised by the appellant as separate matters, though the matters that are there relied upon, to some extent, fortify the conclusion on the second ground.

33    The question arises as to whether this is an appropriate case in which a new trial should be ordered. In that regard, I note that the full-time minimum sentence imposed upon the appellant has almost been served. Accordingly, in my view, it is not appropriate for a new trial to be ordered.

34    The orders that I propose are:

1. The appeal be allowed;
2. The conviction of the appellant be quashed;
3. Judgment and verdict of acquittal be entered.

35    GROVE J: I agree with the orders proposed by Sheller JA for the reasons which he has given.
36    HIDDEN J: I also agree.

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