Tasovac v Lawson
[2009] WASC 394
•17 DECEMBER 2009
TASOVAC -v- LAWSON [2009] WASC 394
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 394 | |
| Case No: | SJA:1063/2009 | 6 NOVEMBER 2009 | |
| Coram: | HALL J | 17/12/09 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | NIKOLE TASOVAC BENJAMIN ALEXANDER LAWSON |
Catchwords: | Criminal law Stealing Possession of goods recently stolen Explanation Whether considered Inferences |
Legislation: | Nil |
Case References: | Bruce v The Queen (1987) 74 ALR 219 Carle v The Queen [2002] WASCA 71 Khalil v The Queen (1987) 32 A Crim R 126 R v Illingworth [2000] WASCA 410; (2000) 127 A Crim R 302 Shepherd v The Queen (1990) 170 CLR 573 Wanganeen v The Queen (1988) 50 SASR 433 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
BENJAMIN ALEXANDER LAWSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S R MALLEY
Citation : MI 9487 of 2008
Catchwords:
Criminal law - Stealing - Possession of goods recently stolen - Explanation - Whether considered - Inferences
Legislation:
Nil
(Page 2)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms F A Cain
Solicitors:
Appellant : Corinne Griffin & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bruce v The Queen (1987) 74 ALR 219
Carle v The Queen [2002] WASCA 71
Khalil v The Queen (1987) 32 A Crim R 126
R v Illingworth [2000] WASCA 410; (2000) 127 A Crim R 302
Shepherd v The Queen (1990) 170 CLR 573
Wanganeen v The Queen (1988) 50 SASR 433
(Page 3)
1 HALL J: The appellant was found guilty after a trial in the Magistrates Court of one count of stealing contrary to s 378 of the Criminal Code (WA). The charge related to a number of items of equestrian eventing equipment that were alleged to have been stolen on or about 14 March 2008. The prosecution case was that one of the items was later seen in the possession of the appellant on 24 April 2008 and that all of the items had been found at her home by police on 17 June 2008.
2 At the trial the appellant gave evidence denying that the items seized by the police were the stolen items. She also claimed that she or her sister had acquired some of the items years earlier, although she was unsure where other items had come from.
3 The appellant appeals against her conviction. The issues to be determined are:
1. Did the magistrate fail to consider the explanation given by the appellant as to how she had acquired the items?
2. Did the magistrate rely upon possession of the items within a short time of the theft as proof that the appellant had stolen them and, if so, did he find that possession had been proved beyond reasonable doubt?
Grounds of appeal
4 An appeal notice was filed on 23 June 2009. On 20 August 2009 amended grounds of appeal were filed. McKechnie J granted leave to appeal with respect to the amended grounds on 21 August 2009. The amended grounds are as follows:
1. The learned Magistrate erred both in law and in fact, and there was a miscarriage of justice, when he found the Appellant had provided no explanation as to how she had come into possession of certain items;
Particulars:
- i) the prosecution case was that the Appellant stole a number of horse-related items ('the items');
ii) the items, as particularised, included six 'Bling brow bands' ('brow bands');
iii) the Appellant adduced evidence explaining how she came into possession of the brow bands;
- iv) it was an error to find that 'no explanation' had been provided.
- 2. The learned Magistrate erred both in law and in fact, and there was a miscarriage of justice when, based upon an indispensable link that was not stated as proved beyond reasonable doubt, he drew an inference adverse to the Appellant;
Particulars:
- i) the prosecution case was that the Appellant stole a number of horse-related items ('the items');
ii) the items, as particularised, included six 'Bling brow bands' ('brow bands');
iii) His Honour found the Appellant had possessed the brow bands for only a relatively short time ('indispensable link');
iv) His Honour did not state with sufficient clarity that he was satisfied beyond reasonable doubt as to the indispensable link;
v) the indispensable link was used to draw the ultimate inference adverse to the Appellant.
5 In considering the evidence and the grounds of appeal it is important to bear in mind that the appellant was charged with two counts of stealing and the hearing related to both of those counts. Count 1 related to the stealing of two light blue horse brow bands that were alleged to be the property of Sharon Robinson. Count 2 related to the stealing of six brow bands, two dress bridles, a set of heavy padded reins, and two sets of horse socks that were alleged to be the property of Rebecca Wiltshire and Anna Johnson trading as Evolution Equestrian. The appellant was acquitted in respect of count 1, the magistrate not being satisfied beyond reasonable doubt that the brow bands seized from the appellant were those that were stolen from Sharon Robinson. As regards count 2 the magistrate convicted the appellant in respect of all of the property except the horse socks. There was no inconsistency in these verdicts as the evidence relating to identification was significantly different.
6 The central question at the trial was whether the items seized by the police from the appellant's home could be proven to be those stolen from Evolution Equestrian on 14 or 15 March 2008. The appellant disputed that the items seized from her were those that had been stolen and,
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- accordingly, identification of the items was significant in the prosecution case.
7 On 14 March 2008, Ms Wiltshire and Ms Johnson set up a stall to sell horse accessories at Harmony Park. Harmony Park is an equestrian centre and an event was held there on 14 March 2008. The appellant worked at Harmony Park at this time and was present on this day.
8 By about 10.30 pm to 11.00 pm on 14 March 2008 the event had finished and Ms Wiltshire and Ms Johnson were at their stall together with a small group of other people including the appellant. They were discussing horse riding equipment and the conversation turned to DQ bridles; described as handmade show bridles made by a man named David Quayle in New South Wales. Ms Wiltshire brought out some DQ bridles to show the group before packing them back into two Australia Post boxes and putting them under a table. The bridles had not been displayed at the stall that day and this was the only time they were brought out and shown to anyone. The bridles were new and of a distinctive type. Ms Wiltshire said in evidence that she understood that Evolution Equestrian was the only distributor of these bridles in Western Australia but that they could be purchased directly from the manufacturer in New South Wales.
9 At the end of the evening the tables displaying the horse accessories were covered with sheets and left at Harmony Park overnight. When Ms Wiltshire returned the following morning to pack up the stall she noticed that some brow bands on one of the display tables were missing. Brow bands are decorative bands placed across a horse's forehead when they are eventing. The bands that were missing were ones that had been ordered from an eastern states supplier and received about a week before. Ms Wiltshire also noticed that a box of DQ bridles was missing.
10 One of the missing brow bands was one Ms Wiltshire had specially ordered for her own horse. It had a particular style and colour combination, being cream and purple, that was highly unusual. It had been ordered from a manufacturer in New South Wales named Kim Rutter.
11 Ms Wiltshire then completed a point of sale audit to determine what items were missing. A list was then prepared and given to the police.
12 On 24 April 2008 Ms Wiltshire and Ms Johnson set up their stall at a horse show at the Claremont Showgrounds. Ms Wiltshire saw that one of the horses that was involved in the event was wearing a brow band
(Page 6)
- identical to the one that she had ordered for her own horse and that had gone missing on 14 March 2008. Ms Wiltshire took photographs of the horse and rider. By checking the number of the horse in the show program Ms Wiltshire was able to determine that the rider was the appellant. Ms Wiltshire went to the police and reported what she had seen. She gave a detailed description of the particular brow band, stating that it was unique in colour and design and made to her specification.
13 Ms Wiltshire testified that all of the brow bands sold by Evolution Equestrian were exclusively made by Ms Rutter of Roxy-J Accessories in New South Wales. Ms Wiltshire produced an order form for the brow bands that had gone missing on 14 March 2008. The form was dated 23 January 2008 and Ms Wiltshire said that the brow bands were received about a week prior to 14 March 2008.
14 On 17 June 2008 police executed a search warrant at the appellant's home. Amongst the items seized by the police were six brow bands, two DQ bridles and a set of DQ padded reins. Ms Wiltshire identified the brow bands as being amongst those that were on display at her stall at Harmony Park on 14 March 2008. She was able to identify the brow bands based upon their colour and appearance and that they were distinctively bands made by Ms Rutter and matched the order that had been made on 23 January 2008. One of the bands was identified by Ms Wiltshire as that made for her own horse. As to the DQ bridles and reins, Ms Wiltshire identified them as those which had been provided on consignment to her and that were at her stall on 14 March 2008. She conceded that she was only able to identify the bridle and reins based upon their appearance, including the fact that they were new.
15 I should note at this point that the police also seized two other brow bands at the appellant's home that were blue in colour. These were bands that were not of Ms Rutter's design. When these brow bands were shown to Ms Wiltshire she told the police that they were not hers and in consequence they were returned to the appellant. Those brow bands were, however, photographed and subsequently the photographs were shown to Ms Sharon Robinson, who also makes and sells such items. Ms Robinson gave evidence that the brow bands in the photographs appeared to be two brow bands that she had manufactured and that had also gone missing from her own stall at Harmony Park on the evening of 14 March 2008. These brow bands were the subject of count 1. These light blue brow bands were never recovered from the appellant and at the trial Ms Robinson was obliged to give evidence as to identification on the basis of the photographs. In cross-examination Ms Robinson agreed that
(Page 7)
- photographs of her designs were posted on the internet and that it was possible for other makers to copy them. This difference in the strength of the evidence relating to identification was significant in the magistrate coming to the conclusion that he was not satisfied beyond reasonable doubt in respect of count 1. There was also other evidence relating to these blue brow bands, which I will refer to later.
16 Ms Rutter was called to give evidence and identified the six brow bands seized from the home of the appellant as being manufactured by her. She explained that she was able to make that identification because her work bore specific features, such as the method of stitching and the particular materials used. Ms Rutter was also able to identify the brow band that had been custom made for Ms Wiltshire. Ms Rutter confirmed that it was distinctive due to the combination of colours used. She said that it was a 'one off' and she had not displayed it on her website or made any other brow bands in the same colours. Ms Rutter also confirmed that she had never supplied brow bands to the appellant.
Defence evidence
17 The appellant gave evidence that she had been involved with horses since the age of 8, and had been riding in competitions for over 15 years. She said that she would purchase a minimum of six brow bands a year and would have purchased a very large number in total, possibly more than 100. She said she would purchase brow bands from across Australia; at shows, from retailers and from private suppliers. She was then asked:
The brow bands that the police seized, can you say where those brow bands came from? There was a number of them?---Yes. The two baby blue brow bands I purchased at Brisbane Royal in 2005 and the others I'm just not aware of, I'm not sure; could have come from numerous places, numerous stands or stalls or even with the private people that have made me brow bands (ts 18).
18 The appellant then produced photographs which she said had been taken on premises named Foxwood Farm on 14 August 2007. These photographs showed the appellant and two horses wearing light blue brow bands. The appellant said that these were the brow bands that she had purchased at the Brisbane Royal Show in 2005 and were the two brow bands initially seized by the police and subsequently identified by Ms Robinson. It is important to very clearly draw a distinction between the evidence relating to these brow bands and the balance of the items allegedly stolen.
(Page 8)
19 The appellant was then asked:
In relation to the other brow bands that were seized, where do you say that they were obtained from?---Received numerous brow bands from my sister as gifts and purchased myself but the brow bands that have been seized I'm unsure exactly where they came from.
Why is that?---Because I've purchased numerous quantities of brow bands from numerous places and can't keep track of everything that I purchase (ts 20).
20 The appellant was then asked about the horse socks that had been seized from her home and said that she had purchased them from the Perth Royal Show. It should be noted that there was nothing particularly distinctive about these socks that enabled Ms Wiltshire to positively identify them as being those that were stolen on 14 March 2008.
21 The appellant was then asked about the DQ bridles and reins:
Can you say where you obtained the padded reins that were seized?---The padded reins that I believed that they seized were from Saddles Plus, that I have receipts for.
Why do you say they were from Saddles Plus?---Because at the time I purchased two sets of padded reins and I have a very good deal when I purchase - I get my things cost price through Saddles Plus.
In relation to that I think that there was - did you keep receipts from Saddles Plus?---Yes.
What did you do with the receipts in relation to those reins?---I gave them to the police.
In relation to the bridles, what do you say in respect of the bridles?---I have a number of bridles because I have a number of horses. Enough said.
And in particular the bridles that were seized, what do you say in relation to those bridles?---The ones that came back or the ones that are still here?
The ones that the police have with them?---I received those bridles from my sister (ts 20 - 22).
- A little later the appellant said in relation to the bridles:
Now, as to - okay, so the bridles that the police seized, as far as you are concerned, you're not sure where they were purchased from. You say that you believe it was your sister that - - -?---And I purchased - I purchased some of them as well, so the bridles that are here today.
- Where would you purchase those bridles from that aren't the ones here today?---Private, saddleries and - yeah, that's where I purchase my bridles (ts 22).
- Finally the appellant was asked:
In relation to the items that the police seized and the prosecution say that they were stolen from the horse show on 14 March, what do you say about that?---I don't know who stole them so - I was there.
As far as you stealing them?---No (ts 23)
I said I'm not sure, possibly my sister purchased them. Purchased stuff from various - various places. I wouldn't have a clue.
So you don't know how they came into your possession?---Pardon?
You don't know how they ended up in your possession?---The bridles?
No, the brow bands, exhibit G?---Sorry, I thought you said - the brow bands?
You said through your sister?---Through my sister or through the goods that I've purchased or through (indistinct).
Do you know when?---No. But she's purchased me and given me some from Grand Nationals, from - - -
Grey Nationals, is it?---Grand Nationals.
When were they?---Pardon?
When was that?---2006 my horse was there. And I've received them as gifts and goods.
You got given them, sometimes given?---As presents, yes. Or I'll have a voucher to go to certain thing and I would have to spend it and I'll purchase it myself.
The exhibit B, which was this purple one and cream one?---Yes.
This was on your horse at the Royal Show. Correct?---No.
At Claremont Showgrounds? The show horse Council Classic, 25 April 08. You were there, weren't you?---Yes.
And you were riding the horse?---Yes. Two horses.
(Page 10)
- And you were riding 115 - from the top of my memory - the breast plate on the horse?---Possibly, yes. I don't recall the number.
Okay. Isn't it the case that your horse had a purple brow band on it?---A - that brow band?
This one?---Yes.
It had this one, isn't it?---Yes.
The explanation for that brow band is, together with the other brow bands, ie. from your sister?---Pardon.
The explanation as to how you obtained that brow band, the purple one exhibit B - - -?---Yes.
- - - together with the other brow bands is all from your sister. Is that correct?---No. The baby blue ones I purchased - - -
No, that - yes?---You mean just that purple one?
Purple one?---Yes.
Got it from your sister or not?---Not that I'm aware of.
Where did you get it from?---I'm unsure. Possibly it could have come from her but - or the other places that I've mentioned (ts 33 - 35).
23 The appellant's sister Anita Tasovac also gave evidence. For convenience I will refer to her as Anita. Anita said that she had purchased numerous brow bands for her sister over the years and identified two of the six seized by the police as being ones that she had purchased for the appellant at the Grand Nationals in Sydney in 2006. In relation to the two light blue brow bands Anita said that she was aware that the appellant had purchased these in Queensland in 2006 and that she had taken photographs at Foxwood Farm in 2007 of her sister's horses wearing those light blue brow bands.
24 Anita also said that she had purchased two DQ bridles for her sister in 2003 and that she had returned to the place of purchase in 2008 and obtained a copy of a receipt. She had instructed the sale's assistant to write on the receipt '2 x DQ bridles'. Anita said that the bridles were bought from a bargain table but could not say whether they were new or second-hand. She gave no evidence regarding the padded reins.
25 The prosecution called two employees from the business from which Anita claimed to have purchased the bridles. Michael Johnson confirmed that the receipt had been reprinted in June 2008 and referred to 'strapping'
(Page 11)
- to the value of $774.50. Mr Johnson said that whilst strapping could include bridles, halters, lead ropes, and reins, his business had never stocked DQ bridles. Ms Alicia Sams-Hays gave evidence that the receipt contained her handwriting which read '2 x DQ bridles, one pony, one full'. Ms Sams-Hays had no recollection as to why she had written those words on the receipt or when she had done so.
Magistrate's findings
26 The hearing proceeded over two days, 19 January and 5 May 2009, and the magistrate then reserved his decision until 2 June 2009. The magistrate summarised the prosecution evidence and then said:
The accused gave evidence of having been involved with horses since she was young, having purchased significant amounts of horse accessories over the years including brow bands. She said that she got brow bands from all over Australia and gave evidence of acquiring exhibit D and F in Queensland and produced photos said to have been said taken in 2007, showing the two bands, exhibit K.
Of the remaining bands she was unable to give direct evidence as to their origin. She said she had purchased the socks at a horse show. She said the pair [of] reins were from Saddler Price which, as I understand it, was formerly Europa Saddles and the two bridles her sister purchased for her. She denied stealing any of the items. She agreed she had used exhibit B on her horse at Claremont Showgrounds as stated by Wiltshire but was unable to say how she came by it.
She agreed she was at Harmony Park during the day and evening of 14 March 08 the accused sister, Anita, gave evidence of not now being involved in the horse riding but said she had purchased items for her sister. The accused, over many years, said she purchased the two red bands at the Grand National in 2006, they being exhibit G numbers 4 and 5. She said the brow bands, the subject of exhibit D and F, were purchased by her in Queensland in 2006 but couldn't comment on any other bands.
She said she purchased the two DQ bridles for her sister in 2003. She said she subsequently went back to the place of purchase, obtained a copy of the receipt and confirmed that after strapping she instructed the sales assistant to write on the receipt '2 x DQ bridles'. This was in 2008, some five years after purchase. She couldn't comment on the padded reigns (ts 5 - 6).
27 It should be noted that the references to exhibit D and F were to the two light blue brow bands that were the subject of count 1. As will be apparent, not only was the evidence of identification in regard to those items weakened by the fact that the physical bands were not available and Ms Robinson had to rely upon photographs, but also there was specific
(Page 12)
- evidence from both the accused and her sister that these bands had been purchased in Queensland and were the subject of photographs taken in 2007. His Honour referred to these factors in coming to the conclusion that he could not find count 1 proven beyond reasonable doubt.
28 His Honour then turned to the second charge. He said:
The second charge is somewhat different. In these matters in relation to the six brow bands, the accused is unable to give an explanation as to where and when they were acquired and nor is she required to do so. However in this case, Ms Wiltshire has positively identified them as belonging to her, made by a particular manufacturer. She identified three of the bands that had come in an order a week prior, the description of each of those, which were handmade.
In particular there is one band she was specifically made for her horse, in particular its design which both Ms Wiltshire and Ms Rutter positively identified, being exhibit B. That item went missing on the night of 14 March along with other brow bands and bridles, padded reigns and socks. It is of significance the accused was seen some four weeks later by Ms Wiltshire at a horse show using the brow band that was specifically designed for her horse.
When a search warrant was executed at the accused's property on 17 June this band and five others, identified by Wilshire as hers, were found in the accused's possession. Also found were padded reigns and two bridles that Wiltshire says were hers. It is further significant that a post box, which Wiltshire says she had kept the reigns in, was found in the accused's room. I will deal with that issue in due course and the issue of the socks.
I am of the view that the evidence of Wiltshire and Rutter was clear and credible as to the identification of brow bands, as those belonging to Wiltshire. If there is a doubt, their evidence as to their (indistinct) exhibit B is compelling, in my view. It was taken on 14 March and is seen by the accused within weeks. The (indistinct) of recent possession can be explained as follows.
Where an accused person is in possession of property which is recently stolen the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused. Such an inference will be drawn from unexplained fact of possession of such property and not from any admission of guilt arising from the failure to proffer an explanation.
The onus is not on the accused to adduce evidence as to where he or she was in possession of the stolen property. In this case Wiltshire has a number of handmade brow bands, one which was specifically made to her requirements. These are shown at a horse show on 14 March where the brow bands were on display. The accused was present during the course
(Page 13)
- of the evening and I find was present when the reigns and bridles were brought out to be shown.
The accused worked at the (indistinct) and clearly had access to it. Bands go missing with other items on 14 March - 14, 15 March and 24, 25 April the accused is seen riding a horse with the Wiltshire personalised brow band. And on 17 June the personalised brow band is found in the accused's possession along with a number of other brow bands, and in particular a brow band made - as I say - for Wiltshire.
I accept that the accused was in possession of many brow bands but given the relatively short period of time, these ones had been in her possession, an explanation (indistinct) was cried out for and there is none as to how she came into possession - particularly of the one which I find was the one prepared specifically for Ms Wiltshire.
Given the opportunity and the possession, in my view the only inference to be drawn is the accused stole the brow bands. In my view there is inescapable evidence in relation to the recently acquired bands and with given comfort with regard to the bands that had been in Ms Wiltshire's possession for some time. In regard to the reigns and bridles, Wiltshire's evidence was that she was given the two bridles on consignment from David Quayle and had DQ stamped on them (ts 6 - 7).
29 His Honour then referred to the fact that the bridle and reins were new and that the retailer had never sold DQ brand bridles or reins and that the evidence of the accused and her sister and in respect of the amended receipt was unconvincing. His Honour then said in relation to those items:
Those items were stolen and subsequently found, I find, in the accused's possession. I accept Wiltshire's identification of these items and I reject the accused's explanation that her sister had acquired - certainly the bridles. I am satisfied beyond reasonable doubt that the brow bands and the bridles and the reigns were stolen by the accused (ts 8).
Ground 1 - explanation?
30 This ground asserts that the magistrate erred by proceeding on the basis that the appellant had provided no explanation as to how she had come into possession of the items seized by the police. The appellant asserts that she had adduced evidence explaining that possession.
31 I have earlier quoted extensively from the evidence of the appellant to make it clear that the assumption upon which this ground is based is erroneous. It is incorrect to claim that the appellant provided an explanation for the provenance of all of the items that were subject to the
(Page 14)
- two charges. It is also incorrect to assert that the magistrate failed to deal with such limited explanations as were provided.
32 Before considering that evidence in the context of this ground, it is important to understand why the issue of explanations arose in this trial. His Honour referred to the relevance of the appellant being in possession of property found to be recently stolen. His Honour appears to have quoted from the judgment of Mason CJ, Brennan, Deane, Dawon & Gaudron JJ in Bruce v The Queen (1987) 74 ALR 219 where their Honours stated:
Where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused. Such an inference will be drawn from the unexplained fact of possession of such property and not from any admission of guilt arising from the failure to proffer an explanation. It is the possession of recently stolen property in the absence of explanation or explanatory circumstances, which enables the inference to be drawn. Thus the absence of any reasonable explanation must not itself be explicable in a manner consistent with innocence (219).
33 His Honour correctly referred to the fact that there was no onus on the accused to adduce evidence of where the property had been obtained. However, in this case the appellant had chosen to give evidence and availed herself of the opportunity to provide explanations for some of the items.
34 It is also important to understand that the magistrate was not using the possession of the items by the appellant to establish that property had been stolen from Ms Wiltshire on 14 March 2008. On the basis of his Honour's reasoning he was satisfied beyond reasonable doubt that property had been stolen on 14 March 2008 and that the property subsequently recovered by the police was proven to be that stolen property. In this regard his Honour placed particular emphasis on the evidence of Ms Wiltshire and Ms Rutter regarding identification of the items that were seized. His Honour having come to this conclusion, any explanation by the appellant would have to account for how she came into possession of items that had been stolen on 14 March 2008.
35 The appellant's submissions, both written and oral, failed to grapple with the line of reasoning quite properly taken by the magistrate. In particular it was submitted that the magistrate should have taken into account, as an explanation, that the appellant had said in evidence that the items 'could have come from numerous places, numerous stands or stalls'. Such evidence was at best speculation. It was not, and did not purport to
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- be, an explanation of how the appellant had come into possession of the items since they were stolen on 14 March 2008. In any event, it is wrong to confuse an explanation for possession of recently stolen items with a denial that the items were stolen at all.
36 When properly understood the appellant gave no explanation in her evidence for being in possession of recently stolen items, rather what she did was deny that the seized items were the stolen items. In order to bolster that defence the appellant claimed that some of the items seized had been legitimately acquired by her or her sister and had been in her possession for a long time. Even in this regard, however, the evidence was limited. She gave an account of how she had come into possession of the two light blue brow bands, but that is irrelevant as the appellant was acquitted in respect of those items. She also gave an account of how she came into possession of the two DQ bridles, but that evidence relied upon her sister's claim to having purchased those items in 2003, a claim that was specifically rejected by the magistrate.
37 In regard to the balance of the items, the six Rutter brow bands and the DQ reins there was no evidence that could properly be described as an explanation. In regard to these items the appellant said that she was unsure as to where they came from, that she had purchased numerous quantities of brow bands from numerous places and could not keep track of them and that she had not stolen any items from Ms Wiltshire. This was simply a general denial. It was a denial that went to the issue of identification of the items and was dealt with by the magistrate in finding that, contrary to the appellant's claims, the items found in her possession were those stolen on 14 March 2008.
38 Given the magistrate's finding that the items had been stolen on 14 March 2008, that one of the items had been seen in the appellant's possession on 24 April and that all of the items had been found in her possession on 17 June, it followed inevitably that the appellant had come into possession of those items sometime between 14 March and 17 June 2008 (at the latest). It was to this period that his Honour was referring when he stated that the appellant had been in possession of the items for a 'relatively short period of time'. To say that there was no explanation for that possession was a conclusion properly open to the magistrate. Accordingly, ground 1 fails.
39 I should note, in this regard, that the meaning of the word 'recent' in the context of the possession of items recently stolen is not fixed but may expand or contract depending on the circumstances of the case, the nature
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- of the goods alleged to have been stolen and whether there is an expectation that they would be retained or soon passed on: Khalil v The Queen (1987) 32 A Crim R 126 and Carle v The Queen [2002] WASCA 71, 90 (Owen J). In this case the appellant did not seek to assert that the time between the theft and the finding of the stolen items was too long. That is consistent with the fact that the defence was a denial that the goods were the stolen items at all, rather than being an explanation for possessing recently stolen property. In any event, the possession was clearly sufficiently close in time to be described as recent.
Ground 2 - inferences
40 The appellant argues that if she had possessed the brow bands for a relatively short period of time, this was an indispensable link in drawing a conclusion that she had stolen the items. The appellant says further that there was a failure on the part of the magistrate to find that the short period of possession was proven beyond reasonable doubt and that, being an 'indispensable link', this was a necessary step in the reasoning process: Shepherd v The Queen (1990) 170 CLR 573.
41 This ground misunderstands the reasoning process of the magistrate. His Honour did not use the relatively short period between 14 March 2008 and 17 June 2008 in itself to draw a conclusion that the appellant had stolen the items. Rather, as I have adverted to earlier, his Honour found as a fact that the items found on 17 June 2008 were those stolen on 14 March 2008. There can be no doubt from the way he expressed himself that his Honour found this fact proven beyond reasonable doubt. It necessarily followed from this that those items were not in the possession of the appellant prior to 14 March 2008.
42 The relevance of the appellant's possession was that she might be expected in the circumstances to avail herself of an opportunity to explain how she came into possession of those items. A failure to do so enabled an inference of guilty knowledge on the part of the appellant to be drawn. This ground in referring to the 'relatively short time' the appellant had possessed the brow bands obscures the focus of the inferential reasoning process. What is important is that it be proved that property recently stolen is found in the possession of a suspected person; that the person has an opportunity to provide an explanation for that possession and fails to do so; and that the only reasonable explanation for that failure is guilty knowledge: Wanganeen v The Queen (1988) 50 SASR 433 and R v Illingworth [2000] WASCA 410; (2000) 127 A Crim R 302. It can cause confusion to refer to 'recent possession' rather than, the more correct,
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- 'possession of items recently stolen'. When, as here, submissions emphasise recent possession and overlook the requirement for it to be first proven that the items have been recently stolen, any explanation for possession may seem relevant in avoiding the inference referred to in Bruce. As I previously noted, this appeal proceeded upon the false assumption that any reason given for possession of items is capable of being an explanation for possessing recently stolen property.
43 The reference by the magistrate to the relatively short period of time that the items had been possessed must, furthermore, be seen in context. When viewed in context it is clearly a reference to the reasonableness of the appellant's evidence that she was unsure of how she came into possession of the items (other than those that have been referred to earlier) and could give no account of them. This was a reference to the credibility of the appellant not to any link, indispensable or otherwise, in the chain of reasoning that led to the finding of guilt. For those reasons this ground must fail.
Conclusion
44 The appeal is dismissed.
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