Rollond v The Queen
[2020] SASCFC 106
•13 November 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
ROLLOND v THE QUEEN
[2020] SASCFC 106
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Hughes)
13 November 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - PROOF OF SYSTEM
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
Appeal against convictions of Theft.
The appellant was charged with 14 offences of Theft. He was acquitted of seven counts (2, 5, 6, 7, 10, 11 and 13) and convicted of seven counts (1, 3, 4, 8, 9, 12 and 14).
Police officers found and seized the subject items of eight of the 14 counts in the apparent possession of the appellant. Police officers found and seized the items the subject of the other six counts in the apparent possession of a former employee and a former associate of the appellant.
The appellant appeals against his convictions on 11 grounds:
1. The Judge erred in ruling that the evidence relating to Count 9 was admissible as discreditable conduct evidence pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA) (the Act) on the trial of the balance of the counts and vice versa.
2. The Judge erred in his directions about the cross-admissibility of the evidence of each of the counts and other discreditable conduct and how that evidence could and could not be used when considering each particular count.
3. The closing address by prosecution counsel resulted in a miscarriage of justice.
4. The Judge erred by misdirecting the jury in relation to its assessment and use of the appellant’s evidence when it decided whether the prosecution had discharged its onus to prove guilt beyond reasonable doubt.
5. The Judge’s refusal to order that the prosecution provide further particulars of the acts by which it was alleged the appellant dealt with each item of property resulted in a miscarriage of justice in relation to the convictions on Counts 8, 12 and 14.
6. The Judge erred by failing to direct the jury how, on the prosecution case, it was alleged that the appellant dealt with the items of property the subject of Counts 8, 12 and 14, resulting in a miscarriage of justice.
7. The Judge erred by failing to correctly direct the jury about s 134(4) of the Criminal Law Consolidation Act 1935 (SA) and how it applied to Counts 1 and 3, resulting in a miscarriage of justice.
8. The Judge’s directions about Stewart having his own interests to serve in giving evidence were inadequate, resulting in a miscarriage of justice.
9. The Judge erred by failing to give any warning to the jury to carefully scrutinise the evidence of Bunker and Sayers because of the potential they gave false evidence to protect their own interests, resulting in a miscarriage of justice.
10. The convictions on Counts 3, 4, 8, 9 and 14 are unreasonable and not supported by the evidence.
11. The Judge erred by ruling that the evidence relating to all of the counts, and the evidence of uncharged discreditable conduct, was admissible on the trial of each count pursuant to s 34P(2)(a) of the Act.
Held per Peek J (Blue J and Hughes J substantially agreeing) allowing the appeal; setting aside the convictions on Counts 1, 3, 4, 8, 9, 12 and 14; entering a verdict and judgment of acquittal on Count 8; and ordering that Counts 1, 3, 4, 9 and 14 be re-tried with Count 12 to be re-tried separately:
1. The broader and more non-specific the offence, the greater is the need for the courts to ensure that the defence has adequate particulars as to how the prosecution proposes to put its case. The Judge erred and should have ordered the prosecutor to provide particulars. Criminal Law Consolidation Act 1935 (SA) ss 130, 133, 134 referred to. Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Patel v The Queen (2012) 247 CLR 531; PPP v The Queen (2010) 27 VR 68; S v The Queen (1989) 168 CLR 266 discussed.
2. The Judge erred in permitting the case to proceed on the basis that the prosecutor had invited the jury to find that the appellant dealt with the respective count items in “some way”, without the prosecutor or the Judge specifying to the jury what that way may have been.
3. The Judge erred in applying the wrong test when determining the cross-admissibility of the evidence under s 34P(2)(a) of the Act. Evidence Act 1929 (SA) s 34P referred to. The Queen v C, CN (2013) 117 SASR 64; MDM v The Queen [2020] SASCFC 80 discussed; Gregg v The Queen [2020] NSWCCA 245 considered.
4. The prosecutor’s closing address was liable to invite the jury to engage in propensity reasoning, and the Judge erred in failing to correct the prosecutor and direct the jury accordingly. Evidence Act 1929 (SA) s 34P referred to. MDM v The Queen [2020] SASCFC 80 discussed.
5. There is a substantial risk that the jury may have gleaned from the prosecutor's closing address and the Judge’s summing up that they could not make any use of the appellant’s evidence unless they accepted it such that they may have adopted an erroneous approach to the onus of proof. R v Lavery (2013) 116 SASR 242; R v Schulz (2016) 126 SASR 476; De Silva v The Queen (2019) 94 ALJR 100 discussed; Murray v The Queen (2002) 211 CLR 193; Douglass v The Queen (2012) 86 ALJR 1086; Liberato v The Queen (1985) 159 CLR 507 considered.
6. The Judge erred in failing to direct the jury that the appellant could only be found guilty on either Count 1 or Count 3 if they were satisfied beyond reasonable doubt that he did not honestly believe he was getting good title of the count items when he first acquired them. Criminal Law Consolidation Act 1935 (SA) s 134 referred to.
7. The conviction on Count 8 is unreasonable and cannot be supported having regard to the evidence. It is not established that the verdicts on any of Counts 3, 4, 9 and 14 are unreasonable or not supported by the evidence. M v The Queen (1994) 62 SASR 364; R v Nguyen (2010) 242 CLR 491; SKA v The Queen (2011) 243 CLR 400; Pell v The Queen (2020) 94 ALJR 394 considered.
8. The uncharged discreditable conduct comprising evidence about registration plates and VIN plates should have been excluded.
Held per Peek J (Blue J and Hughes J contra):
1. The Judge erred in failing to direct the jury to carefully scrutinise the evidence of Bunker and Sayers each of whom had a motive to protect their own interests.
Held per Blue J (Hughes J agreeing, Peek J contra):
1. The Judge did not err in not giving a self-interested witness warning to the jury to carefully scrutinise the evidence of Bunker and Sayers.
Criminal Law Consolidation Act 1935 (SA) ss 130, 133, 134; Evidence Act 1929 (SA) ss 34O, 34P, 34Q, 34R, 34S, referred to.
De Silva v The Queen (2019) 94 ALJR 100; Director of Public Prosecutions v Faure (1993) 67 A Crim R 172; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; MDM v The Queen [2020] SASCFC 80; Patel v The Queen (2012) 247 CLR 531; PPP v The Queen (2010) 27 VR 68; R v Jones (2018) 131 SASR 532; R v Lavery (2013) 116 SASR 242; R v Macaskill (No 2) (2001) 81 SASR 155; R v Maiolo (No 2) (2013) 117 SASR 1; R v Phan (1990) 54 SASR 561; R v Schulz (2016) 126 SASR 476; R v Tran [2017] SASCFC 99; S v The Queen (1989) 168 CLR 266; The Queen v C, CA [2013] SASCFC 137; The Queen v C, CN (2013) 117 SASR 64; The Queen v MJJ (2013) 116 SASR 81, discussed.
BNM v The Queen [2020] SASCFC 10; Douglass v The Queen (2012) 86 ALJR 1086; Gregg v The Queen [2020] NSWCCA 245; Hughes v The Queen (2017) 263 CLR 338; Liberato v The Queen (1985) 159 CLR 507; M v The Queen (1994) 62 SASR 364; Murray v The Queen (2002) 211 CLR 193; Pell v The Queen (2020) 94 ALJR 394; R v Nieterink (1999) 76 SASR 56; R v Nguyen (2010) 242 CLR 491; R v Wanganeen (1988) 50 SASR 433; R v Wickers (2019) 134 SASR 504; SKA v The Queen (2011) 243 CLR 400, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"deal", "deal with", "apparent possession"
ROLLOND v THE QUEEN
[2020] SASCFC 106Court of Criminal Appeal: Peek, Blue and Hughes JJ
PEEK J: Appeal against convictions of Theft.
The appellant, Mr Philip John Rollond (Rollond), was charged on an Information with 14 offences of Theft and was tried by a District Court Judge and jury. On 20 March 2020, he was acquitted of seven counts (Counts 2, 5, 6, 7, 10, 11 and 13) and convicted of seven counts (Counts 1, 3, 4, 8, 9, 12 and 14). All verdicts were by majority only, except on Counts 2 and 3. He appeals against all of the convictions.
The structure of this Judgment
I will deal with the appellant’s grounds of appeal[1] against the convictions in the following parts:
Part A: Overview of the evidence
Part B: The offence of “Theft” – Inadequate particulars
Part C: Discreditable conduct evidence
Part D: Onus of proof – the prosecutor’s address and the Judge’s summing up
Part E: The Judge’s directions as to witnesses with their own purposes to serve
Part F: Section 134(4) of the Criminal Law Consolidation Act 1935 (SA)
Part G: Are any of the guilty verdicts unreasonable?
[1] The single Judge granted permission to appeal on Grounds 1, 2, 3, 4, 7 and 9; refused permission on Grounds 5, 6 and 8; and referred Ground 10 to this Court for determination. On 2 June 2020, the appellant filed a Form 51 Application requesting permission on Grounds 5, 6 and 8 be determined by this Court. During the hearing of the appeal, the appellant was granted permission to add a further Ground 11 of Appeal.
PART A: OVERVIEW OF THE EVIDENCE
At relevant times, Rollond and his mother owned the properties at 127 and 171 John Rollond Road, Tungkillo – the latter of which was the registered business address of Tara Hills Pastoral Pty Ltd (THP) – which will be referred to compendiously as Tara Hills.[2] The property registered to THP was a large rural property of about 5,000 acres with about 20 employees. The THP office, along with a shearing shed, a workshop/maintenance shed, and other buildings are located at 171 John Rollond Road, which is one side of the intersection of John Rollond Road and Ayres Road, whilst No. 127 is adjacent on the other side.
[2] Rollond was a director and shareholder of THP and his mother was also a shareholder. THP is also the trustee for the Rollond Family Trust.
Other enterprises associated with Tara Hills were: Frames Firetrack, Red Creek, a property of about 80 acres (with a quarry); “Rollond Rocks” (moss rocks sales); “Rollond Transport” (later “Rollond Transport Yard” at Greenfields); and “Yalli”, a Queensland cattle station of about 100,000 acres (sold in 2016-7).
The Information (with the counts on which the jury convicted in emphasis) is as follows:
First Count (Guilty)
Statement of Offence
Theft (Section 134(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Philip John Rollond between the 21st day of March 2008 and the 3rd day of March 2016 at Tungkillo, dishonestly dealt with property, namely a semi-trailer dolly (NSW registration NT59DL), without the consent of F. and A. Scarcella Pty Ltd, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s property rights.
Second Count
Statement of Offence
Theft. (Ibid).
Particulars of Offence
Philip John Rollond between the 13th day of June 2008 and the 3rd day of November 2013 at Tungkillo, dishonestly dealt with property, namely a John Deere trailer with air compressor (SA registration YFJ-841), without the consent of Michael Mason, the owner of the property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights.
Third Count (Guilty)
Statement of Offence
Theft. (Ibid).
Particulars of Offence
Philip John Rollond between the 5th day of March 2010 and the 3rd day of March 2016 at Tungkillo, dishonestly dealt with property, namely a blue Southern Cross tri-axle semi-trailer (SA registration YFA-334), without the consent of Claire Glazbrook, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights.
Fourth Count (Guilty)
Statement of Offence
Theft. (Ibid).
Particulars of Offence
Philip John Rollond between the 1st day of June 2010 and the 26th day of February 2016 at Mount Torrens and other places, dishonestly dealt with property, namely a semi-trailer (SA registration SY18AT), without the consent of Phanith Chan, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights.
Fifth Count
Statement of Offence
Theft. (Ibid).
Particulars of Offence
Philip John Rollond between the 25th day of August 2011 and the 20th day of December 2016 at Palmer and other places, dishonestly dealt with property, namely a blue Fruehauf dual axle drop-deck semi-trailer (SA registration TAF-485), without the consent of SA Sawdust Sales, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights.
Sixth Count
Statement of Offence
Theft. (Ibid).
Particulars of Offence
Philip John Rollond between the 25th day of August 2011 and the 11th day of May 2016 at Black Hill and other places, dishonestly dealt with property, namely a red and white Manitou forklift (serial no. 81646), without the consent of SA Sawdust Sales, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights.
Seventh Count
Statement of Offence
Theft. (Ibid).
Particulars of Offence
John Philip Rollond [sic Philip John Rollond] between the 25th day of August 2011 and the 8th day of June 2016 at Tungkillo, dishonestly dealt with property, namely five custom made large industrial containers, without the consent of SA Sawdust Sales, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights.
Eighth Count (Guilty)
Statement of Offence
Theft. (Ibid).
Particulars of Offence
Philip John Rollond between the 11th day of March 2013 and the 11th day of May 2016 at Black Hill and other places, dishonestly dealt with property, namely a red Southern Cross tri-axle semi-trailer (SA registration SY27AZ), without the consent of Torrens Contracting, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights.
Ninth Count (Guilty)
Statement of Offence
Theft. (Ibid).
Particulars of Offence
Philip John Rollond between the 7th day of October 2013 and the 22nd day of January 2016 at Tungkillo, dishonestly dealt with property, namely a yellow front end caterpillar loader (SA registration S71-SVF), without the consent of Boral Asphalt and Transport, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights.
Tenth Count
Statement of Offence
Theft. (Ibid).
Particulars of Offence
Philip John Rollond between the 18th day of November 2013 and the 5th day of December 2013 at Tungkillo, dishonestly dealt with property, namely a red and white flat-top semi-trailer (SA Registration SY80EB), without the consent of Phanith Chan, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights.
Eleventh Count
Statement of Offence
Theft. (Ibid).
Particulars of Offence
Philip John Rollond between the 23rd day of April 2014 and the 21st day of December 2017 at Angus Valley [sic Angas Valley] and other places, dishonestly dealt with property, namely a red Schanks semi-trailer (SA registration SY64AX), without the consent of Nicholas Campbell, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights.
Twelfth Count (Guilty)
Statement of Offence
Theft. (Ibid).
Particulars of Offence
Philip John Rollond between the 24th day of July 2014 and the 11th day of May 2016 at Black Hill and other places, dishonestly dealt with property, namely a drop deck semi-trailer (SA registration YEV-217), without the consent of Hentschke Transport, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights.
Thirteenth Count
Statement of Offence
Theft. (Ibid).
Particulars of Offence
Philip John Rollond between the 20th day of August 2015 and the 21st day of January 2016 at Tungkillo, dishonestly dealt with property, namely a car carrier semi-trailer “Dack Attack Motorsports” (WA registration 1TMF-992), without the consent of Gregory Leahy, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights.
Fourteenth Count (Guilty)
Statement of Offence
Theft. (Ibid).
Particulars of Offence
Philip John Rollond between the 20th day of August 2015 and the 21st day of January 2016 at Tungkillo, dishonestly dealt with property, namely a red Manitou Forklift (serial no. 224142), without the consent of Michael Griffiths, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights.
I will refer to items the subject of particular counts as a ‘count item’; or the ‘Count 1 item’, ‘Count 2 item’ and so on.
The police seizures of the subject items of property
Police officers found (and seized) the subject items of eight of the 14 counts in the apparent possession[3] of Rollond. As to Counts 1, 2, 3, 7, 9, 10 and 14, the items were found on Tara Hills;[4] while as to Count 4, Rollond was found by police driving the semi-trailer the subject of that count.
[3] The explanation for the use of the term “apparent possession” appears below at paragraphs [55]-[57].
[4] In the case of Counts 3 and 10, each count item was found on the side of the road immediately adjacent to Tara Hills.
However, police officers found (and seized) the items the subject of the other six counts in the apparent possession of two former associates of Tara Hills. In the case of Counts 5, 6, 8, 12 and 13, police officers found (and seized) the count items from three properties associated with Mr Robin Stewart (Stewart), a former associate of the appellant:
-The items the subject of Counts 6, 8 and 12 were seized at Lot 1, Havelburg Road, Black Hill, a large rural property leased by Stewart for cattle farming.[5]
-The item the subject of Count 5 was seized at a paddock at the rear of Stewart’s home at 2949 Reedy Creek Road, Palmer.
-The item the subject of Count 13 was seized at a property at 265 Ayres Road, Tungkillo, which Stewart had originally used for several years for business purposes. Later, from 17 August 2015, it was owned by a company controlled by Rollond’s daughter, Stephanie Rollond, but Stewart was granted a lease to store items on the property (which Stewart acknowledged in cross-examination at trial).
[5] The distance from that property to the Tara Hills properties is about 50 kms by road.
And in the case of Count 11, police officers found (and seized) the count item from a paddock at a rural property at 111 Kuhlmann Road, Angas Valley, the home of Mr Brian Clothier (Clothier), a former employee of THP.
Defence counsel rightly conceded at trial that the count items in the group of Counts 5, 6 and 7 were all stolen together at the same time and place; and accordingly, the evidence concerning any one count in that group was cross-admissible on any other count within that same group. Defence counsel also rightly conceded that the same applied to a second group of Counts 13 and 14, the count items there also having been stolen at the same time as each other.[6]
[6] Out of an abundance of caution, this did not mean that evidence was cross-admissible as between the two groups; they were stolen at very different times and places.
All of the three counts within the group of Counts 5, 6 and 7 (where the subject items were all stolen together at the same time and place) were the subject of acquittals at trial. The items in Counts 5 and 6, as well as the items in Counts 8, 12 and 13, were not found on Tara Hills, but rather on premises which were associated with the former associate, Stewart. The defence case was that the items the subject of Counts 5, 6, 7, 8, 12 and 13 were in fact dishonestly dealt with by Stewart to the exclusion of Rollond and the jury acquitted on Counts 5, 6, 7[7] and 13.
[7] Despite the Count 7 item being found on Tara Hills property.
Similarly, on Count 11 (where police officers had found the item in the possession of Clothier at his home at Angas Valley) the defence case was that the Court 11 item was in fact dishonestly dealt with by Clothier to the exclusion of Rollond and, as noted above, the jury acquitted on Count 11.
A chart showing where the police found and seized the items the subject of the Counts 1 to 14 (with the guilty verdicts emboldened) is as follows:
171 or 127 John Rollond Rd, Tungkillo (Tara Hills) Lot 1 Havelburg Rd, Black Hill (Stewart premises) 2949 Reedy Creek Rd, Palmer (Stewart home) 265 Ayres Rd, Tungkillo (Stewart connection) 111 Kuhlmann Rd, Angas Valley (Clothier home) Count 1 2.3.16
Police seize
Count 1 item.Count 2 (NG) 2.11.13
Police seize
Count 2 item.Count 3 2.3.16
Police seize
Count 3 item. (I)Count 4 25.2.16
Police find Rollond alone driving Count 4 item. (II)Count 5 (NG) 18.12.16
Police seize Count 5 item.Count 6 (NG) 7.6.16
Police seize the rotator arm from the Count 6 item10.5.16
Police seize Count 6 item (no rotator arm) (III)Count 7 (NG) 27.5.16 & 7.6.16
Police seize Count 7 item (five industrial containers)Count 8 10.5.16
Police seize Count 8 item.Count 9 21.1.6
Police seize
Count 9 item. (IV)Count 10 (NG) 4.12.13
Police seize
Count 10 item.Count 11 (NG) 20.12.16
Police seize Count 11 item.Count 12 10.5.16
Police seize Count 12 item. (V)Count 13 (NG) 20.1.16
Police find number plate registered to Count 13 item.10.5.16
Police find many stickers removed from Count 13 item.20.1.16
Police seize Count 13 item.Count 14 20.1.16
Police seize
Count 14 item.
Chart footnotes
(I): The compliance plate had been removed from the Count 3 item and there were grind marks on the VIN number indicative of an attempt to remove it. Further, the Count 3 item bore the handwritten Reg No. TXP 173, which was registered to THP. (There was also found at Tara Hills a stock crate bearing that same registration plate seized on 21.1.16.) That Reg No. was amongst the numbers on a list which the prosecution contended was used by Rollond to monitor the swapping of registration plates.
(II): Police also found two stock crates at Tara Hills each bearing the same Reg No. as the Count 4 item, a blue semi-trailer that Rollond was found driving. His evidence at trial was that he believed that THP had lawfully purchased the Count 4 item from Mr Raymond Bunker and Mr Panith Chan; and he had given that explanation to the police officer who had stopped him while driving that vehicle. He explained that he had temporarily put the plate Reg No. TDT 142 on the trailer just for that delivery trip since they were not using the trailer enough to make registering it worthwhile.
(III): Inside the Count 6 item was a number plate UZS 222 which was registered to a red Nissan vehicle that police officers found at Tara Hills on 2.3.16.
(IV): There was evidence from witnesses at trial that the Count 9 item had been seen at Tara Hills, and later at the appellant’s quarry property at Wistow, prior to the police seizure on 21.1.16 at Tara Hills. The evidence of the appellant at trial was that, at the time of the police seizure, he was holding the item at Tara Hills by way of an informal security or lien concerning a debt owing to him by Mr Ben Sayers; and also to prevent Sayers from taking further of his moss rocks from the quarry. Rollond stated in evidence that he thought Sayers was the owner of the Count 9 item and he did not know that it was stolen.
(V): The Count 12 item bore a paper sticker Reg No. YFK 620 which was registered to THP. This Reg No. was registered to a stock crate that was seized by police from 94 Ayres Road (Rollond’s home).
PART B: THE OFFENCE OF “THEFT” – INADEQUATE PARTICULARS
Ground 5. The learned trial Judge’s refusal to order that the prosecution provide further and better particulars of the acts by which it was alleged the appellant dealt with each item of property resulted in a miscarriage of justice in relation to the convictions on counts 8, 12 and 14.
Ground 6. The learned trial Judge erred by failing to direct the jury how, on the prosecution case, it was alleged the appellant dealt with the items of property the subject of counts 8, 12 and 14, resulting in a miscarriage of justice.
Sections 133 and 134 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) create a new offence of “theft” in substitution for a number of common law and statutory offences (with the exception that the common law of conspiracy to defraud is retained). Thus, ss 133 and 134 provide as follows:
133—Operation of this Part
(1) This Part operates to the exclusion of offences of dishonesty that exist at common law or under laws of the Imperial Parliament.
(2) However, the common law offence of conspiracy to defraud continues as part of the criminal law of the State.
…
134—Theft (and receiving)
(1) A person is guilty of theft if the person deals with property—
(a) dishonestly; and
(b) without the owner’s consent; and
(c) intending—
(i) to deprive the owner permanently of the property; or
(ii) to make a serious encroachment on the owner’s proprietary rights.
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 15 years.
(2) A person intends to make a serious encroachment on an owner’s proprietary rights if the person intends—
(a) to treat the property as his or her own to dispose of regardless of the owner’s rights; or
(b) to deal with the property in a way that creates a substantial risk (of which the person is aware)—
(i) that the owner will not get it back; or
(ii) that, when the owner gets it back, its value will be substantially impaired.
(3) It is possible to commit theft as follows:
(a) a person may commit theft of property that has come lawfully into his or her possession;
(b) a person may commit theft of property by the misuse of powers that are vested in the person as agent or trustee or in some other capacity that allows the person to deal with the property.
Example—
Suppose that land is vested in a trustee in a fiduciary capacity. She is empowered under the instrument of trust to mortgage the land for the purposes of the trust. The trustee dishonestly mortgages the land as security for a personal liability that is unrelated to the trust. In this case, the trustee commits theft of the interest created by the mortgage.
(4) If a person honestly believes that he or she has acquired a good title to property, but it later appears that the title is defective because of a defect in the title of the transferor or for some other reason, the later retention of the property, or any later dealing with the property, by the person cannot amount to theft.
(5) Theft committed by receiving stolen property from another amounts to the offence of receiving but may be described either as theft or receiving in an instrument of charge and is, in any event, punishable as a species of theft.
(6) If a person is charged with receiving, the court may, if satisfied beyond reasonable doubt that the defendant is guilty of theft but not that the theft was committed by receiving stolen property from another, find the defendant guilty of theft.
The actus reus of “Theft” – “deals with property”
As appears from s 134(1) above, the actus reus of “theft” is that “the person deals with property”. The definition of “deal” or “deal with property” in s 130 is very broad and non-exhaustive:
deal—a person deals with property if the person—
(a) takes, obtains or receives the property; or
(b) retains the property; or
(c) converts or disposes of the property; or
(d) deals with the property in any other way;
As for “(d) deals with the property in any other way”, the current meaning of “deal” or “deal with” would include as a primary meaning: “to take action with respect to” a thing or person.[8] A more broad definition of an actus reus of a serious crime would be difficult to find.
[8] Macquarie Dictionary (online at 28 August 2020) ‘deal with’ (def. 30(c)).
In the present case, the actus reus of each alleged offence is averred in each count only as “within (a long nominated time period) at (a nominated general locality), dishonestly dealt with (a specified item of property)”. It is not specified in any count whether it is alleged that Rollond was the thief; or took part in the theft; or received the item which had been stolen; or did some particular thing that is alleged to amount to a “dealing” with the item.
It may be foreshadowed that the lesser the specificity provided in a charge, the greater the need for a court to order that appropriate particulars be provided by the prosecution.
The refusal to supply further particulars of the actus reus
On 14 February 2020, the appellant filed a Third Rule 49 Notice seeking, inter alia, an order that the trial be stayed until the prosecution provided sufficient particulars as to how it was alleged that the appellant had “dealt with” the respective items of property the subject of the 14 counts.
On 17 February 2020, during the voir dire hearing immediately prior to the trial proper, prosecution counsel declined to provide such particulars, asserting that what had been given as part of their Outline of Argument dated 12 October 2019 was adequate. That response confused evidence with particulars. The prosecution may well have advised the defence and the Court of the evidence they intended to lead, but what was sought here was for the prosecution to provide a written document specifying particulars of the way in which it was alleged that Rollond dealt with the respective count items, such as to constitute the actus reus of theft.
This the prosecution refused to do. Instead, the prosecution took the position that each item of property was dealt with “in a number of ways, including but not limited to” the following:
(a) retaining the property;
(b) using the property;
(c) altering or causing the property to be altered;
(d) storing the property; and/or
(e) disposing of the property.
This was unhelpful on several levels. There was no attempt to address any particular count; it is difficult to accept that the prosecution could not have been more specific in relation to at least some of the counts. Further, the introductory words “in a number of ways, including but not limited to” effectively reduce the status of what follows to mere examples of how the prosecution case might be put, but in no way limiting the ways in which the case might be put.
Vigorous argument ensued, but the Judge refused the application and in effect declined to give reasons for doing so. His Honour simply stated:
I’ll deal with one matter now. I have had ample time to carefully consider the submissions that were made to me on the topic of particulars and without going into chapter and verse, given the position we’re at regarding this trial, I decline to order further particulars.
The result of the ruling and of the prosecutor’s opening to the jury was that the actus reus of the various counts was left as a largely amorphous concept, with the Judge later in summing up giving only the most general directions about how a person may “deal with” property. Thus, his Honour directed the jury thus:
Theft. There are four ingredients that need to be proved to make out a charge of theft. I will just specify them 1, 2, 3, 4 and then say a little bit more about a couple of them. (1) the accused dealt with property. (2) That he did so dishonestly. (3) That he did so without the owner’s consent. (4) That at the time of dealing with the property he intended to permanently deprive the owner of the property or make a serious encroachment on the owner’s proprietary rights. They are four.
Ingredient 1: that the accused dealt with the property. Well, by definition someone deals with property if he, and there is an (a), (b), (c) and (d): (a) takes, obtains or receives the property; or (b) retains the property; or (c) converts or disposes of the property; or (d) deals with the property in any other way. So you can see it is a very broad definition of what amounts to dealing with property.
As I have just indicated earlier, for some of the counts the accused does not dispute that he had some dealing with the property, although he says it without the requisite dishonest intent. Just dealing with this ingredient, for four of the counts that ingredient is not disputed. They are counts 1, the dolly that he says he collected and took to the Green Fields yard; these are the counts for which he admits dealing with it, doing something with it; Count 3, he agrees he used that trailer. Count 4, he agrees he was using that trailer when he was making the trip from Tara Hills into Woodside and back when Officer Perry pulled him over. Count 9 he says he disabled that front-end loader and subsequently sent an employee to pick it up.
So, for those four, at least some dealing with the property is not disputed by the accused. But the next ingredient is.
The other 10 counts on this first ingredient, the accused denies he dealt with the property at all. Some of those counts were items not found on his property and he denies he had anything to do with it. Some of them were items found on Tara Hills and he denies he had any dealings with them and we will come to the detail of this in a moment. [Emphasis added]
…
The appellant submits on appeal that he was denied a fair trial because he was required to defend against undefined allegations of “dealing” with property over very lengthy periods of time, with the jury receiving no more guidance than a reference to the breadth of the statutory definition of “dealing”.
On the other hand, counsel for the respondent asserted that the prosecutor at trial, in his closing address, did not suggest to the jury that the appellant had himself physically taken the items in Counts 8, 12 and 14 and nor did he contend that the appellant directed an employee or someone else to do so.
Consideration
The appellant does not raise the matter of whether the counts in the Information were bad for failing to sufficiently state the particulars of the offence charged.[9] One may refer to a number of authorities concerning that matter, which address various attempts by drafters to formulate charges and particulars in the context of a great number of differing factual situations. The matter appears to be one of degree; what is required to discharge the obligation to provide particulars within a count of an Information may vary from case to case. In some cases, not much more than the words of a statutory offence may be sufficient; but in other cases, discharging the legal obligation will require a good deal more.
[9] This was the essential complaint in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.
In the present case, the appellant goes directly to the broad power of the Court to order the prosecution to provide further particulars of the actus reus; that is to say, further than are already provided on the face of the Information. It should go without saying that the power of the Court to order further particulars is considerably broader than the initial requirement that the drafter of an Information adequately state the charge(s) therein. And, as noted above, the lesser the specificity provided in a charge, the greater the need for a court to order that appropriate particulars be provided by the prosecution.
In the decision of the Victorian Court of Appeal in PPP v The Queen,[10] Redlich JA described the importance of particulars thus:[11]
[10] (2010) 27 VR 68.
[11] Ibid 80-81.
[42] The starting point is the proposition that for a trial according to law, the accused must be apprised not only of the offence with which they are charged but must have particulars of the act constituting the offence. These particulars are designed to serve a number of important purposes:
(1) to enable the accused to exercise the right to object to evidence on the ground of relevance;
(2) to permit the accused to know how the charge might be answered;
(3) to provide the accused with the opportunity to test the credibility of the complainant by reference to the surrounding circumstances disclosed as a result of the particularisation of the count;
(4) to enable the trial judge to instruct the jury properly as to the law to be applied;
(5) to ensure that there is a [sic an] unanimity of view by the jury as to a specific act by the accused;
(6) in the event of conviction, to enable the court to know the offence for which the defendant is to be punished;
(7) to ensure that the record discloses of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict. [Citations omitted]
As noted above, the decision of the High Court in Kirk v Industrial Court of New South Wales[12] was concerned with the obligation to provide sufficient particulars on the face of the Information. However, what was said in that context applies a fortiori to applications to a court to order further particulars. The majority there stated:[13]
[26] The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, “must at the least condescend to identifying the essential factual ingredients of the actual offence”. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant’s acts or omissions”. McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”.
…
[30] …[I]t may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller where it would act as “an administrative commission of inquiry” rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences. [Citations omitted]
[12] (2010) 239 CLR 531.
[13] Ibid 557-558, 559.
The appellant also particularly relies upon the decision of the High Court in Patel v The Queen,[14] the facts of which case are well known. The Court stressed the need for proper particulars in cases of complexity. Thus, Heydon J observed:[15]
[14] (2012) 247 CLR 531.
[15] Ibid 578-580.
[167] The need for particulars. In Johnson v Miller, Dixon J said that an accused person “is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge”. A representative instance of how the indictment expressed each manslaughter charge is count 9: “between the first day of April, 2003 and the fifteenth day of June, 2003 at Bundaberg in the State of Queensland, [the appellant] unlawfully killed [Mr Morris].” Count 9 raised many queries. In what circumstances did the unlawful killing take place? Had Mr Morris died in a fight with the appellant? Or had Mr Morris been run over by the appellant? No doubt the jury soon understood that the prosecution concerned the much-publicised behaviour of the appellant towards his patients. But what was the particular act, matter or thing which was alleged as the foundation of the charge? Was it a decision that Mr Morris should be operated on at all? Was it the decision of the appellant that he should operate? Was it some careless act or failure to act while performing the surgery? Was it some careless act or failure to act while providing and advising on post-operative care? The nineteenth century cases to which Stephen referred generally left a reader of the indictment in no doubt as to what the allegedly unlawful conduct was. The criminal procedure of those days is often denigrated today, but in this respect at least it seems to have been much superior.
[168] In Johnson v Miller, Evatt J said:
“It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged.”
But the importance of particulars does not lie only in relation to questions of inadmissibility for irrelevance. Particulars can also be necessary to enable the defence to make particular forensic judgments. Some concern the cross-examination of prosecution witnesses. Others concern the marshalling and deployment of its own evidence. Parts of the trial record, incidentally, suggest that the present case may, with respect, illustrate Evatt J’s point that without particulars the prosecution can be as unsure of the case being run as is the court and the defendant.
[169] In pleading civil cases there is a distinction between the “necessary” particulars of allegations like fraud, which ought to appear in the pleadings themselves, and other particulars, which need not appear in the pleadings but must be supplied if requested.
“[It is] anomalous and wrong that a case against a defendant should be spelled out with less particularity when he stands in the dock accused of [homicide] than when he resists a claim for compensation.”
The nature and seriousness of the charges levelled at the appellant obligated the prosecution to provide some particulars either in the indictment itself or at least well before the trial. [Citations omitted; Emphasis added]
It is readily apparent from decisions such as these that where (as here) an offence may be committed in a large number of ways, the breadth of a statutory definition of the actus reus is in no way a reason for the prosecution to decline to furnish particulars, or for a Judge to refuse to order the prosecution to do so. Indeed, to the contrary, the broader and more non-specific the offence, the greater is the need for the judiciary to ensure that the defence has adequate particulars as to how the prosecution proposes to put its case (and it is difficult to envisage a broader and more non-specific actus reus than that propounded in the present statutory definition of “deal with” property reproduced above). Further, it is beside the point for the prosecution to say that they are not in a position to provide particulars. As Dawson J stated in S v The Queen:[16]
… It is not to the point that the prosecution may have found it difficult or even impossible to make an election because of the generally unsatisfactory evidence of the complainant. An accused is not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness.
[16] (1989) 168 CLR 266, 275.
Similarly, Gaudron and McHugh JJ there stated:[17]
… While the evidence as given by J at the trial suggests that there may be practical difficulties in particularizing or identifying one or all of the offences charged, it is not obvious that it is wholly impossible so to do. Whatever practical difficulties may exist, those difficulties (even if amounting to an impossibility) cannot justify a criminal trial attended with such uncertainty that the verdict or verdicts must also be seen as uncertain.
[17] Ibid 288.
Conclusion
It may not have been explicitly suggested by the prosecutor that the jury should find that the appellant was the original thief on any count, but nor was it stated by the prosecutor (or by the Judge) that the jury could not do so. The fact is that the prosecutor at trial stressed to the jury the great breadth of the statutory definition and invited them to find that the appellant had dealt with respective count items “in some way”, without specifying what that way may have been.
The Judge permitted the case to go forward on that basis. I consider that the Judge here erred and should have ordered that the prosecution provide particulars. Having regard to the facts that Grounds 5 and 6 of appeal are limited to the convictions on Counts 8, 12 and 14 and that all of the convictions are to be set aside on other grounds below in any event, it is sufficient to emphasise that the prosecution should furnish proper particulars of each count well prior to the commencement of any re-trial in accordance with the above precepts.
PART C: DISCREDITABLE CONDUCT EVIDENCE
Ground 1. The learned trial Judge erred at law in ruling that the evidence relating to count 9 was admissible as discreditable conduct evidence pursuant to section 34P(2)(a) of the Evidence Act 1929 on the trial of the balance of the counts and vice versa.
Ground 2. The learned trial Judge erred at law in his directions about the cross-admissibility of the evidence of each of the counts and other discreditable conduct and how that evidence could and could not be used when considering each particular count.
Ground 3. The final address by prosecting [sic prosecution] counsel resulted in a miscarriage of justice.
Particulars
…
3.3Counsel wrongly submitted that the jury could use all of the evidence relating to the other counts, and findings that the accused was guilty of other counts, when it considered whether the appellant was guilty of any one count. This included the submission that the jury could use the finding that the appellant was guilty of one or more counts to conclude the appellant had dealt with an item of property that was the subject of another count.
3.4Counsel wrongly invited the jury to engage in propensity reasoning, by submitting that if the appellant was guilty of count 11 and had told Clothier to collect that trailer, the jury could use this finding in assessing if the appellant was guilty of each of the other charges. By necessary implication that included whether he had dealt with the item the subject of the other charges. [Footnotes omitted]
Ground 11. The learned trial Judge erred at law by ruling that the evidence relating to all of the counts, and the evidence of uncharged discreditable conduct, was admissible on the trial of each count pursuant to section 34P(2)(a) of the Evidence Act 1929 (the Act).
Particulars
11.1The uses the prosecution sought to make of the above evidence relied upon proof of a particular propensity or disposition of the appellant.
11.2The evidence was not admissible pursuant to section 34P(2)(a) of the Act.
11.3The evidence could only be admitted pursuant to s 34P(2)(b) of the Act, but the prosecution did not seek its admission under that provision.
Grounds 1, 2, 3.3, 3.4 and 11 of appeal (as argued on appeal) give rise to the following more precise contentions:
-The Judge erred in ruling that the evidence admissible on any one count was admissible on every other count, and/or
-The prosecutor urged the jury to use evidence in ways that were impermissible, and/or
-The Judge erred in that he failed to correct the above errors made by the prosecutor (although urged to do so by defence counsel) such that there was an appreciable risk that the jury would use evidence admitted as referable to any one count for “an impermissible use” when considering their verdict on another count, and/or
-There was an appreciable risk that the jury would use evidence admitted for a permissible use under s 34P(2)(a) of the Evidence Act 1929 (SA) for a use that relied upon a particular propensity or disposition of the defendant in circumstances where the prosecutor had assured defence counsel that he would not seek to rely upon admissibility via s 34P(2)(b) of the Evidence Act 1929 (SA), and the Judge had ostensibly ruled that the evidence was admissible via s 34P(2)(a) rather than s 34P(2)(b) of the Evidence Act 1929 (SA).
Introduction
South Australia has not enacted the Uniform Evidence Law or adopted the Evidence Act 1995 (Cth). The common law principles of the law of evidence concerning the admission and exclusion of discreditable conduct evidence applied here until 1 June 2012, when an amendment to the Evidence Act 1929 (SA) (the Act) enacting Division 3: “Admissibility of evidence showing discreditable conduct or disposition” came into force. It provides as follows:
34O—Application of Division
(1) This Division applies to the trial of a charge of an offence and prevails over any relevant common law rule of admissibility of evidence to the extent of any inconsistency.
(2) This Division does not apply to—
(a) evidence adduced pursuant to section 18; or
(b) evidence of the character, reputation, conduct or disposition of a person as a fact in issue.
34P—Evidence of discreditable conduct
(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).
34Q—Use of evidence for other purposes
Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.
34R—Trial directions
(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
34S—Certain matters excluded from consideration of admissibility
Evidence may not be excluded under this Division if the only grounds for excluding the evidence would be either (or both) of the following:
(a)there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant;
(b) the evidence may be the result of collusion or concoction.
Admissibility under sections 34P(2)(a), 34P(2)(b) and 34P(3)
The Division 3 regime specifically founds upon the basic concepts of probative force and prejudicial effect which have been the subject of detailed analysis since long before the advent of the Division 3 regime. In R v Maiolo (No 2),[18] the development of the common law prior to 1 June 2012 and the effects of Division 3 of the Act were summarised, and that summary is notionally incorporated here. As part of that exercise, the following passage in the judgment of Vanstone J in The Queen v MJJ (with which I respectfully agree) was reproduced:[19]
[242] Section 34P(2) divides discreditable evidence into two categories. Section 34P(2)(a) deals with non propensity uses. Examples of these uses are seen in cases such as Wilson v The Queen (1970) 123 CLR 334 (evidence of marital discord prior to wife’s death by firearm); R v Tucker (1984) 36 SASR 135 (proof of theft of firearm later used to shoot victim as evidence of premeditation); R v Nieterink (1999) 76 SASR 56 (proof of uncharged acts of sexual nature not used to prove sexual interest). This last has often been referred to as relationship evidence. It introduces what I see as a requirement more demanding than the common law, namely that the probative value of the evidence “substantially outweighs any prejudicial effect”. Formerly, such evidence was admissible, but fell to be excluded as a matter of discretion if its prejudicial effect was adjudged to outweigh its probative value.
[243] Propensity or disposition evidence is dealt with in s 34P(2)(b). I would assess the qualitative requirement there provided as being comparable to the common law as it stood prior to Hoch v The Queen (1988) 165 CLR 292. The degree of probative force required at common law has been described as “a really material bearing on the issues to be decided”: Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 439 per Lord Morris of Borth-y-Gest and such that to exclude the evidence would be “an affront to common sense”: Boardman at 456 per Lord Cross of Chelsea; and as such that it “clearly transcends its merely prejudicial effect”: Perry v The Queen (1982) 150 CLR 580 at 609 per Brennan J; Phillips v The Queen (2006) 225 CLR 303 at 320 per the court.
[244] In my opinion the changes made by ss 34P, 34Q, 34R and 34S may be briefly stated as follows:
1. The test for admissibility established in Hoch that propensity evidence, if accepted, bear no reasonable explanation other than the inculpation of the accused person and the offence charged no longer applies – see s 34S(a);
2. The possibility of collusion or concoction by the witnesses attesting to the similar events is no longer a ground for exclusion – see s 34S(b);
3. The exclusionary rule which formerly regulated the admission of propensity or disposition evidence is now extended so that it applies to discreditable evidence introduced for non propensity purposes – see s 34P(2)(a). For such evidence to be admissible the judge must now be satisfied that the probative value of such evidence “substantially outweighs any prejudicial effect it may have on the defendant”;
4. The criterion for admission of evidence tendered to demonstrate a particular propensity or disposition is now that the evidence has “strong probative value having regard to the particular issue or issues arising at trial” – see s 34P(2)(b).
[18] (2013) 117 SASR 1, 14-17.
[19] (2013) 117 SASR 81, 139-140.
As to the precise requirements of s 34P(1) and (2), in the recent decision of this Court in MDM v The Queen it was held:[20]
[107] All applications for the admission of discreditable conduct evidence must first pass the test in s 34P(2)(a). This requires not only that the Judge be satisfied that “the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant”, but also (by dint of s 34P(3)) that the Judge “must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose”.
[108] And, if the particular discreditable conduct evidence is being tendered “for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue”, then s 34P(2)(b) also requires that an additional requirement of admissibility must be satisfied, namely that “the evidence has strong probative value having regard to the particular issue or issues arising at trial”. This is confirmed by the conjunctive “and” at the end of s 34P(2)(a). Of course, s 34P(3) also applies to the admission of such evidence because, as referred to above, it is engaged by s 34P(2)(a) which must be satisfied as a condition to the admissibility of all discreditable conduct evidence (whether or not involving a propensity or disposition use). …
[20] [2020] SASCFC 80 (Peek J, Kourakis CJ and Kelly J agreeing as to this aspect).
It is noted that the view of White J as to this matter in The Queen v C, CN (Peek J and Blue J concurring);[21] of Doyle J in BNM v The Queen (Peek J and David AJ concurring)[22] and of Kelly J in R v Wickers (Kourakis CJ and Hinton J concurring)[23] was the same as the MDM holding above.[24]
[21] (2013) 117 SASR 64.
[22] [2020] SASCFC 10.
[23] (2019) 134 SASR 504.
[24] Accordingly, while it is noted that Nicholson J expressed a different view obiter in R v Jones (2018) 131 SASR 532, I proceed on the above basis.
Improbability reasoning
Section 34P(2)(a) addresses “improbability reasoning” while s 34P(2)(b) addresses “propensity reasoning”.[25]
[25] These topics largely correspond with the Uniform Evidence Law terms “coincidence reasoning” and “tendency reasoning” respectively.
A mere declaration by a prosecutor that a case involves a “system” or “underlying unity” or other similar terminology is not in itself enough to establish the relatively high probative value required for admissibility of discreditable conduct evidence. A prosaic example may serve to illustrate the point.
Say a man, X, is known to police as having convictions for motor vehicle thefts and the vehicles he had stolen were later recovered with different (false) number plates and with compliance plates defaced or replaced with false compliance plates. And say after being released from prison, he takes up residence in a particular suburb and some time after that police note that the statistics for theft of motor vehicles in the district are greater than in the previous year; and further, that a number of the stolen vehicles recovered after recent thefts in the district have been found to have changed number plates and/or changed or defaced compliance plates. Police pay X a visit. They see nothing suspicious and he denies having anything to do with the thefts they ask him about.
I agree with Peek J that this ground of appeal is not established.
Bunker: ground 9
Mr Bunker gave evidence that the blue semi-trailer the subject of count 3 was taken from his yard in around March 2010. It is not suggested by the appellant on appeal that a self-interested witness warning was required in respect of count 3. In any event, Mr Bunker’s evidence did not incriminate the appellant in respect of count 3.
Mr Bunker did not give evidence in chief in relation to the blue dolly the subject of count 1. His evidence did not incriminate the appellant in respect of count 1. Mr Bunker was only called by the prosecution to give evidence to prove that the blue semi-trailer the subject of count 3 was taken from his yard.
It was put to Mr Bunker in cross-examination that he sold the blue dolly the subject of count 1 to Mr Maloney on behalf of Rollond Transport (as part of a larger deal) and that he knew that it was stolen. He denied ever having anything to do with the blue dolly. It was not put to him that he had any dealings with the appellant in relation to the blue dolly.
The appellant gave evidence that Mr Maloney told him about the larger deal with Mr Bunker and Mr Chan and he understood from Mr Maloney that this included the blue dolly. He said that he thought that he picked up the blue dolly from Mr Bunker’s yard.
No self-interested witness warning was required in relation to Mr Bunker’s evidence concerning the count 1 dolly. His evidence did not implicate the appellant in relation to that dolly in any way. On the contrary, he denied ever having anything to do with blue dolly.
Mr Sayers: ground 9
The yellow Caterpillar 908H front-end loader the subject of count 9 was owned by Boral and stolen from a Boral site in February 2013.
Mr Williams gave evidence that he used the loader at Tara Hills and, after a few weeks, it was taken to the quarry. In cross-examination, he accepted that it was possible that the machine that he used at Tara Hills looked like this one but was a different machine.
Mr Doddrell gave evidence that he saw the loader at the workshop at Tara Hills around the same time as the police conducted a search in November 2013. In cross-examination, he accepted that it was possible that this was later such as around January 2016.
In March 2014 Mr Davies started leasing the Red Creek quarry property from the appellant. The loader was already present when he started leasing the property. It stayed there for about two years, and was then taken away.
In December 2015 police observed the loader at the Red Creek quarry.
In January 2016 police observed the loader at Tara Hills and seized it.
Mr Sayers was called as a witness to allow cross-examination by the appellant. His only evidence in chief was that he had never owned a front-end loader and had never seen the loader the subject of count 9.
It was put to Mr Sayers in cross-examination that two consignments of moss rocks were sold by Rollond Moss Rocks to Mr Sayers’ business in June 2015 and delivered to Mr Sayers’ jobs at Hewitt and Stirling and he agreed.
It was put to Mr Sayers in cross-examination that in June 2013 he agreed with Mr Rollond to purchase 120 tonnes of slate slabs, and in October 2013 he agreed to purchase 170 tonnes of slate slabs, that in each case Mr Sayers’ business would excavate the slate at the Red Creek quarry and that it did so using the count 9 loader. He denied this entirely and reiterated that he never had a loader. Invoices for slate slabs for $8,580 and $10,285 were put to him and he denied receiving or excavating those slabs. It was put to him that at the end of October 2013 he owed $19,000 to Mr Rollond and he denied this.
It was put to Mr Sayers in cross-examination that in late 2013 Mr Rollond came to his house and told Mr Sayers that he owed him $19,000, he had disabled the Caterpillar front end loader and he was going to keep hold of it until Mr Sayers paid his accounts. Mr Sayers denied this in its entirety. He denied that Mr Rollond ever came to his house. He denied owing the money and denied ever owning a loader.
The appellant gave evidence in accordance with what had been put by his counsel to Mr Sayers in cross examination. He said that he saw the loader at the property, assumed that it belonged to Mr Sayers and took its keys and starter solenoid to prevent Mr Sayers using it to excavate further material. He then went to Mr Sayers’ house, told Mr Sayers what he had done to the loader and said that he would only give back the keys and starter solenoid when Mr Sayers paid the two invoices.
The appellant gave evidence that, after the police saw the loader at the quarry in December 2015, a detective spoke to him about it. In January 2016 the appellant decided to move the loader to Tara Hills so that Mr Sayers could not take it back and he instructed an employee to do so.
No self-interested witness warning was required in relation to Mr Sayers’ evidence concerning the count 9 loader. His evidence did not implicate the appellant in relation to that loader in any way. On the contrary, he denied ever having anything to do with the loader.
Conclusion
Grounds 8 and 9 are not established.
Directions on subsection 134(4): ground 7
I agree with Peek J that the Judge erred in failing to direct the jury adequately concerning the effect of subsection 134(4) of the Criminal Law Act.
Subsection 134(4) provides:
If a person honestly believes that he or she has acquired a good title to property, but it later appears that the title is defective because of a defect in the title of the transferor or for some other reason, the later retention of the property, or any later dealing with the property, by the person cannot amount to theft.
In most charges of theft of tangible property, the prosecution case is either that the defendant stole the property or that the defendant received the property knowing it to have been stolen. In most cases, no direction concerning subsection 134(4) will be required.
In respect of count 1 (the blue dolly) and count 3 (the blue semi-trailer), the property the subject of the charges was found at Tara Hills in the possession of the appellant. In each case, the item had been used by the appellant’s business. In each case, alterations to the registration and/or VIN plate had been made at some point, and the jury may have found that these alterations were made by or at the direction of the appellant.
As observed above in the context of ground 5, the prosecution refused to provide particulars of the alleged dealings the subject of these counts and the prosecutor did not in opening or closing address identify the alleged dealings. Nor did the Judge during summing up.
In these unusual circumstances, the jury might have found that there was a reasonable possibility that the appellant received the count 1 and count 3 items in the belief that his business acquired good title to them but might have found beyond reasonable doubt that the appellant subsequently altered the registration and/or VIN plates of the items and, at that point, knew that he had not in fact acquired good title to the items. On the prosecution case, such alteration would constitute a dealing in itself.
The Judge gave to the jury a general direction at the outset of the summing up that the second element – that the appellant knew that he was acting dishonestly – must exist at the time of the dealing. However, this direction was incapable of conveying to the jury the effect of subsection 134(4).
After the appellant’s counsel asked the Judge to give to the jury a specific direction concerning the effect of subsection 134(4), the relevant part of the redirection was as follows:
I just want to remind you it has to be dishonesty at the time of the dealing. For instance, or theoretically, or hypothetically, if you have something and you dealt with it, and you believed it was yours, it had no dishonest belief regarding it and then much later on down the track you realised there is something wrong here with the rego or something, well that would not the offence of theft. That is not the prosecution case here and it is not the defence case here either. So the dishonesty has to be at the time of the dealing.
This redirection was apt to be understood by the jury as merely reiterating, and emphasising, the general direction that the dishonesty must coincide with the dealing. The hypothetical example given by the Judge did not involve the hypothetical person engaging in any subsequent dealing with the property but, at its highest, merely coming to the realisation that they had not in fact originally acquired ownership of the property. The jury may not have even understood that, in this hypothetical example, the person came to that realisation because the Judge only referred to realisation as being that “there is something wrong here with the rego or something”.
It was essential that the Judge convey to the jury that a subsequent dealing with property of the type that it might find was undertaken by the appellant, such as using the property or altering the registration and/or VIN plates, would not amount to theft, even if the appellant knew at the time of that subsequent dealing that the item had been stolen and intended at the time of the subsequent dealing to deprive the owner permanently of the property, provided that the appellant originally received the property believing that he was acquiring good title to it.
Ground 7 is established.
Unreasonable or incapable of being supported by the evidence: ground 10
I agree with Peek J that the guilty verdicts on counts 1, 3, 4, 9 and 14 are not unreasonable and are capable of being supported by the evidence.
In respect of count 8, the red semi-trailer owned by Mr Jones was parked in the Rollond Transport yard at Greenfields in March or April 2013. When Mr Jones returned two or three days later, it was gone.
In May 2016 police found and seized the semi-trailer at Mr Stewart’s property. It was missing its registration plate but otherwise was in the same condition as when Mr Jones parked it at the Rollond Transport yard. Mr Stewart gave evidence that he knew nothing of the semi-trailer and did not know that it was on his property (which was 1,200 acres).
The Director does not contend that the appellant was involved in the theft of the semi-trailer from the Rollond Transport yard. The appellant was not in possession of the semi-trailer when it was found by police. The Director contends that, in the circumstances, it can be inferred beyond reasonable doubt that the appellant had possession of the semi-trailer before it was taken to Mr Stewart’s property.
Leaving aside other items found at Mr Stewart’s property relied upon by the prosecution to establish a circumstantial case, the evidence did not establish that the appellant ever had possession of the semi-trailer. The only connection between the appellant and Mr Stewart was that Mr Stewart’s construction business had engaged the appellant’s trucking business and Mr Stewart had undertaken unpaid work at the appellant’s station in Queensland. Mr Stewart was never an employee of the appellant’s business. Given that the Director does not contend that the appellant was involved in the original theft of the semi-trailer, leaving aside those other items, there was no evidence of any connection between the appellant and the semi-trailer.
The Director relies on the fact that the Manitou forklift the subject of count 6 and the blue semi-trailer the subject of count 12 were also found on Mr Stewart’s property, which the Director contends were associated with the appellant, to infer that the appellant was also associated with the red semi-trailer the subject of count 8.
In relation to the blue semi-trailer the subject of count 12, Mr Stewart was aware that it was on his property. On his evidence, the appellant arranged for it to be taken to his property to deliver the cattle grids that had been placed in it at the Queensland station. The fact that the blue semi-trailer was on Mr Stewart’s property pursuant to an arrangement made by him with the appellant is incapable of justifying a finding beyond reasonable doubt that the appellant was responsible for the red semi-trailer the subject of count 8 being on Mr Stewart’s property without his knowledge.
In relation to the Manitou forklift the subject of count 6, Mr Stewart gave evidence that, like the red semi-trailer the subject of count 8, he was unaware that it was on his property. Unlike the red semi-trailer the subject of count 8 however, there was evidence of connections between the Manitou forklift and the appellant. In March 2016 police saw the Manitou forklift at a rural property at Cambrai where the appellant’s business was undertaking fencing contracting work. A registration plate found inside the forklift belonged to a Nissan Patrol that was found by police at Tara Hills in March 2016. The rotator arm of the forklift was found by police at Tara Hills in March 2016.
If the prosecution had proved beyond reasonable doubt that the appellant had dishonestly dealt with the Manitou forklift, this might or might not have been sufficient, coupled with the evidence in relation to the blue semi-trailer the subject of count 12, to prove beyond reasonable doubt that the appellant dishonestly dealt with the red semi-trailer the subject of count 8. However, the jury acquitted the appellant of count 12 and was not satisfied beyond reasonable doubt that he dishonestly dealt with it. Proof that he did so would have been essential to a path of finding the appellant guilty of count 8. It follows that the verdict of guilty of count 8 was unreasonable.
This ground is established in respect of count 8 only.
Conclusion
I would allow the appeal on grounds 2, 3, 4 and 7, ground 10 in respect of count 8 and ground 11 in respect of the uncharged discreditable conduct evidence.
I would set aside the convictions on all counts of which the appellant was convicted, substitute an acquittal on count 8 and order that there be a retrial on counts 1, 3, 4, 9, 12 and 14.
Although the Judge’s decision not to sever count 12 (and the other counts in respect of which the property was found on Mr Stewart’s land) was correct, the position is now materially different. Count 12 is the only remaining count in respect of which the property was found on Mr Stewart’s land and the appellant has been acquitted on counts 5 to 8 and 13. In these circumstances, I agree with Peek J that it is appropriate for this Court to exercise a discretion to direct that count 12 be re-tried separately from the other remaining counts.
I agree with the orders proposed by Peek J.
HUGHES J: I would make the Orders proposed by Peek J and I agree substantially with the reasons he proposes. In respect of Ground 9 concerning the Judge’s directions as to self-interested witnesses, I concur with Blue J that Ground 9 is not established for the reasons he gives.
Key Legal Topics
Areas of Law
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Criminal Law
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Evidence
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Statutory Interpretation
Legal Concepts
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Appeal
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Charge
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