Templar v The Queen

[1990] TASSC 47

Serial No 44/1990
List "A"

COURT:       SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:              Templar v R [1990] TASSC 47; A44/1990

PARTIES:  TEMPLAR, William Edward
  v
  R

FILE NO/S:  CCA 6/1990
DELIVERED ON:  6 September 1990
DELIVERED AT:  Hobart
JUDGMENT OF:  Green CJ, Wright and Crawford JJ

Judgment Number:  A44/1990
Number of paragraphs:  27

Serial No 44/1990
File No CCA 6/1990

WILLIAM EDWARD TEMPLAR v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

GREEN CJ
WRIGHT J
CRAWFORD J
6 September 1990

Orders of the Court

1. Appeal allowed.

2. Convictions quashed.

3. That there be a new trial of the indictment.

Serial No 44/1990
File No CCA 6/1990

WILLIAM EDWARD TEMPLAR v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

GREEN CJ
6 September 1990

1. I have read the reasons for judgment prepared by Crawford J. Save for one minor reservation I agree with his Honour's reasons for concluding that Ground 1 has been made out.

1. The reservation to which I refer is that I do not regard the learned trial judge's direction that all the evidence was admissible on each count as contradicting his direction that each count "must be considered separately in the sense that the evidence which is admissible on the count is the only evidence to be taken into account". The former direction may have made the latter direction otiose but in my opinion it did not contradict it.

1. I have reached the opinion that even if the remaining grounds of appeal were made out they could not possibly support a conclusion that this Court should direct that a judgment and verdict of acquittal should be entered. I have also reached the opinion that as those grounds arose out of aspects of the way in which this particular trial was conducted their determination would provide no guidance in a retrial. Accordingly I do not see that any purpose would be served by my exploring those grounds any further I would allow the appeal, quash the convictions and order that there be a new trial of the indictment.

File No CCA 6/1990

WILLIAM EDWARD TEMPLAR v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL:

WRIGHT J
6 September 1990

1. Subject to the qualifications mentioned by the Chief Justice with which I agree, I concur with the reasons for judgment prepared by Crawford J.

1. I also agree with the Chief Justice that it is strictly unnecessary to deal with the remaining grounds of appeal as the best result that the appellant can achieve, even if successful upon all grounds, is an order for a new trial. However the issues raised by Ground 2 of the Notice of Appeal are of some practical importance in the day to day conduct of criminal trials and as those issues may arise again upon a retrial of the present indictment, I wish to make a few comments upon the submissions made to this Court by counsel for the appellant.

1. Ground 2 was in the following terms:

"The Learned Trial Judge erred in law in failing to direct the Jury to consider whether other rational inferences were available to explain what may appear to be an inference of knowledge from circumstances and, in particular, failed to direct the Jury that knowledge was to be the only rational inference available to it before it could convict on knowledge inferred from circumstances."

1. Where there is only one conceivable route to conviction, and all or the majority of the steps along the way consist of circumstantial evidence, it will normally be necessary for a trial judge to direct the jury's attention, both to the necessity for their satisfaction beyond reasonable doubt of the primary facts from which their inferences are drawn, and also the essential significance of appreciating that any gap or deficiency in the chain of circumstance will be sufficient to destroy the hypothesis of guilt. In addition, they will need to be made aware that any rational conclusion upon the whole case which is inconsistent with the accused's guilt will entitle him to an acquittal. Placing such conceptual matters before a jury will frequently be a difficult task, and as has often been recognised, it may lead a jury into confusion and error unless performed lucidly

1. Accordingly, it is sometimes a matter of nice judgment and evaluation on the part of the trial judge to determine the extent to which and the terms in which he will give his direction. Perhaps more often than not, his purpose will be better served by commenting upon the various pieces of evidence and analysing how they are significant in proving the Crown case rather than giving a dissertation upon the general concepts discussed in Plomp, Hodge, Barker or Chamberlain. In some circumstances, such an approach rather than being helpful, may be "confusing and dangerous". (See Cosgrove J, Nicholas v The Queen, No 25/1988 at p 17). And, as stated by the Chief Justice in Oates v The Queen [1979] Tas SR 140 at p 146, "a trial judge is also required to bear in mind that a special direction should not be given if it is likely to confuse the jury or unduly complicate their task "

1. In the matter now under review, the trial judge gave the following direction to the jury:

"Are you satisfied beyond reasonable doubt that he must have known that the reading was dishonest and therefore can you infer, beyond reasonable doubt, that he did know that the reading was dishonest? If he did, it would seem to follow from that that he was intentionally practising a deception upon the buyer and the evidence would seem to indicate that the deception succeeded. Now, on the evidence it is open for you to infer that the evidence is sufficient to enable you to infer that if you think that is the proper inference to make, but whether you do is entirely a matter for you".

1. The appellant submits that this was a circumstantial case requiring additional directions of the kind discussed by the High Court in Plomp v The Queen (1964) 110 CLR p234. The Crown on the other hand says that the only matter requiring proof by inference was the appellant's state of mind at the relevant times, and that consequently a "circumstantial case" direction was not called for. In support of his argument, counsel for the appellant suggested that there were several factors in the evidence which were capable of being reasonably explained in such a way as to be consistent with innocence. He suggested that there was a possibility that an error had been made in entering the odometer readings onto the Victorian auction house records which became evidence under the provisions of s.40A of the Evidence Act. It was also submitted that any actual alteration which may have been made to the vehicles' odometers could have been made by Mr Dale Russell, as he had a financial interest in the sale of the vehicles and had the opportunity to tamper with them. Thirdly, it was submitted that the appellant's admittedly false statement to the police that he did not know Dale Russell was explicable, not only on the basis of guilty knowledge, but also on the possible basis that the appellant was trying to protect Russell from police prosecution.

1. There can be little doubt that all of these matters could reasonably be advanced as appropriate points for the consideration of the jury, but merely because hypotheses of this kind were capable of having an influence upon the outcome of the trial, does not mean that a "circumstantial case" direction was called for. In my opinion, the Crown was essentially correct in saying that the only elements of the case for which there was no direct evidence and for which, therefore, pure inferential reasoning was required, was the appellant's knowledge of the false odometer reading at the time when he sold each vehicle and, based thereon, his dishonest intent at that time. In a sense it is a chain of reasoning which leads from proven facts to inferred knowledge and, from there to inferred intent. But it seems to me that once knowledge is imputed in circumstances such as the present, the only rational inference therefrom is guilty intent. Therefore, the only real factor upon which a choice of inference was in issue in the present case, was in relation to the accused's state of knowledge at the relevant times. One can readily appreciate that this was a question upon which rational minds may differ, although of course the case against the accused was very strong. Nonetheless, a Plomp direction was not called for in my opinion, as it was not a case resting substantially upon a chain of circumstance or upon an array of competing inferences.

1. In my opinion, the direction given by the learned trial judge which has been called in question by Ground 2 of the appeal, was adequate and appropriate and additional directions of the kind referred to in that ground were not required.

File No CCA 6/1990

TEMPLAR v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD J
6 September 1990

1. The appellant was convicted of six counts of dishonestly obtaining a financial advantage contrary to s252A of the Criminal Code. He was sentenced on the indictment to nine months' imprisonment. He has appealed against the convictions and has applied for leave to appeal against the sentence.

1. He was a used car dealer in partnership with his wife, operating without a car yard. The charges in the indictment arose out of a series of transactions. From time to time he travelled to Melbourne and purchased vehicles from a Melbourne auction company, Fowles Auction Group. There were seven counts in the indictment, each involving a vehicle so purchased between 28 September 1988 and 23 November 1988. He arranged for the vehicles to be returned to Tasmania by ship. He sold the vehicles in counts 2 to 7 with odometer readings substantially less than those recorded by the auction company. Within five days, at the most in any individual case, of the arrival in Tasmania of the vehicles they were presented to Transport Tasmania for inspection for motor vehicle registration purposes. Having been found on that inspection to be roadworthy, applications were made for registration on forms signed by the appellant. He personally presented at least some of them. Each form had accompanying it the respective invoice issued by the auction company to the appellant on sale. Those invoices had at one time showed the odometer readings of the vehicles as recorded by the company's employees. When the invoices were presented to Transport Tasmania the odometer readings shown on the respective invoices relating to each of the seven cars had been altered (there was no direct evidence of who was responsible). Transport Tasmania made and retained a photocopy of each invoice and returned the original to the person who presented the registration application form. Each vehicle was registered.

1. In the case of count 1 the Crown presented no evidence establishing what occurred next and a directed acquittal resulted. In the case of counts 2 to 7 evidence was called from persons who purchased the vehicles from the appellant. The effect of their evidence was that in each case the odometer reading at the time of purchase was close to the altered reading on the respective invoice and that if the purchaser had known of a reading of the size recorded by the auction company at the time of the original purchase by the appellant, he would either not have purchased or would only have agreed to pay the appellant a lesser amount for the vehicle. All of the purchasers had had considerable experience in the business of used car dealing.

1. From documentary exhibits I have prepared a table of facts relating to each count. The dates in the Date Purchased column come from the auction company's invoices, the dates in the Date Vehicle Left Melbourne column come from the invoices of the Transport Commission, the operator of the Abel Tasman. The Vehicle Registration Inspection dates are revealed in the forms of application for registration signed by the appellant. The dates of the vehicle registration forms purport to be the dates on which the appellant signed them. Those forms also bear a Transport Tasmania's dated receipt stamp and the respective dates are shown in the Receipt Stamp on Form column. Details of the alterations to the recorded kilometres on the invoices are also shown.

Count	Vehicle	Date Purchased	Auction Company's Recorded Odometer Reading	Date Vehicle Left Melbourne	Date of Vehicle Registration Inspection	Date on Registration Application Form	Receipt Stamp on Form	Altered Odometer Reading on Invoice
1	Toyota Landcruiser	28/9/88	85684	Not Known	4/10/88	5/10/88	5/10/88	45684
2	Holden Jackaroo	12/10/88	120981	14/10/88	18/10/88	18/10/88	18/10/88	61123
3	Holden Commodore	26/10/88	107886	26/10/88	31/10/88	1/11/88	1/11/88	67886
4	Toyota Corona	9/11/88	94150	11/11/88	14/11/88	14/11/88	14/11/88	64150
5	Toyota Corolla Engine No 4A9030125	9/11/88	49685	11/11/88	14/11/88	14/11/88	14/11/88	26685
6	Toyota Corolla Engine No 4A9002499	23/11/88	73521	23/11/88	29/11/88	29/11/88	29/11/88	43521
7	Nissan Pintara	23/11/88	120544	23/11/88	29/11/88	29/11/88	29/11/88	40544

1. During the course of the trial the particulars of each count were amended. They were in similar form, except for detail. For example, the third count, as amended, was in the following terms:

"william edward templar at Launceston in Tasmania on or about the 10th day of November 1988 by deception, dishonestly obtained for himself a financial advantage by selling to graham byron pedder acting on behalf of Century Motors a Holden Commodore engine no VL500256, after falsely representing to the said Graham Byron Pedder that the odometer reading of approximately 68000 km on the said vehicle was genuine and unaltered when in fact the odometer should have displayed a reading in excess of 107886 km; such financial advantage corresponding to the diminution in value of the said Holden Commodore had it been offered for sale to the said Graham Byron Pedder with an odometer reading in excess of 107886 km."

The evidence directly relating to this count was that the Holden Commodore was purchased by the appellant from the Melbourne auction company on 26 October 1988, its odometer reading being recorded by employees of the company as 107886 kilometres. It was brought to Devonport on the Abel Tasman which sailed from Melbourne on the same date. For the purpose of having it registered in Tasmania it was inspected by an employee of Transport Tasmania on 31 October. The form of application for registration was dated 1 November, signed by the appellant, and received by Transport Tasmania on the same day. The Melbourne auction company's invoice for the purchase by the appellant, which accompanied the application form, had been altered so that the number of kilometres travelled was shown as 67886, instead of 107886. The evidence of Mr Pedder, the sales manager for Century Motors, was that at about the beginning of November 1988 the appellant brought to the company's yard the Commodore, together with a Subaru. The appellant was accompanied by Mr Dale Russell. There were negotiations. Mr Pedder agreed to purchase both vehicles for a total of $21,000, his evidence being that $11,000 was for the Commodore. He said the odometer reading on that vehicle was approximately 67000 kilometres. If it had been 107886 his valuation of the vehicle would have been reduced by approximately $2,000 to $2,500.

Ground 1 of the Appeal

1. This ground is:

"That the learned trial judge erred in his direction to the jury in relation to the necessary state of mind of the appellant in that he failed to direct them that they may only use the evidence of Phillip Copping in considering their verdict in relation to a particular count if, in respect to that particular count, they were satisfied that his evidence related to a particular state of mind at the time of the commission of that crime."

1. Mr Copping was the supervisor at the Devonport Branch of Transport Tasmania, to which each application for registration was presented. He gave evidence that as a result of contact by a member of the public some months after the relevant events, a search was made of the records of the branch and out of possibly 25 to 30 applications lodged by or on behalf of the appellant the seven forms relating to the respective vehicles in the counts were found to have been accompanied by invoices with altered odometer readings.

1. When an application for registration was presented by the appellant, or by someone on his behalf, with the accompanying invoice as proof of ownership, the person presenting it would be dealt with by one of the employees at the branch. Mr Copping's evidence was that on one occasion he noticed an alteration to an odometer reading or readings on an invoice and he queried the matter with the appellant, who responded by saying that the auction house made mistakes on a regular basis. In cross–examination he stated the response to be that the auction company had made an error in the odometer reading. He agreed with the possibility that the appellant simply said the company had made a mistake. He could not be exact concerning what was said. He could not recall the date on which, nor the vehicle in respect of which, the conversation had occurred. Counsel for the Crown suggested that the evidence of Mr Copping led to the conclusion that it occurred on either 5 October or 14 November, because Mr Copping said that he handled applications on those days, but the jury could not have been confident that it occurred on any particular date other than on one of the five dates on which the applications relating to the vehicles in the seven counts were made. This is because, although Mr Copping could say he handled the applications of 5 October and 14 November as he signed the forms presented on those days, it was not always his practice to sign them, and so lack of signature on other forms did not necessarily mean that he had not handled them.

1. In his summing up, the learned judge explained that if the jury was left with a reasonable doubt concerning guilt they should acquit the appellant, and continued:

"Each count's a separate count. It's a charge of a separate crime and must be considered separately in the sense that the evidence which is admissible in that count is the only evidence to be taken into account, and you decide whether you find the accused guilty or not guilty on that count".

There was no explanation made to the jury of what evidence was admissible on each count and what was not so admissible. Instead his Honour immediately contradicted what he had said by instructing the jury that all the evidence was admissible on each count.

"Now the fact that there were seven counts here, or six now still to be decided, won't cause you any difficulty because I'll be telling you that the evidence on all counts is admissible on each separate count. That is, when you're considering count 1 you are entitled to take into account, you're entitled to consider, the evidence on all seven counts. The same with count 2. The same with count 3. There would be other cases when you've got numerous charges, where you would have to separate the evidence out and say only certain evidence is admissible on count 1 and certain evidence is admissible on count 2. In this case you don't have that difficulty. All the evidence is admissible on all the counts."

1. The effect of this direction was repeated later although in different terms and with emphasis on the evidence of the conduct of the appellant and its relevance to the principal issue, which was whether he had known that the odometers had been wound back.

"Well the reason for that broadly lies in the fact that it is alleged that all the offences were committed within a relatively short space of time, within about two months, and that they were all instances of the same kind of conduct, that is to say, that it was, in each case, an operation, to use that general phrase, or an exercise, of the same kind, the only difference being that it was a different vehicle each time. And since the principal issue here is whether the accused knew that the odometers had been wound back, the evidence that there were seven cases in which the odometer had been wound back and in which the dealer who bought the vehicle didn't know that the odometer had been wound back – that evidence, all of that evidence, is capable of being relevant on each of the particular charges. That's the substance of it."

1. It was correctly stated by the learned judge that the vital contested issue was whether the appellant knew that the odometer readings had been altered at the time of the sales and that he intended thereby to deceive the buyers. The question for the jury was whether they were prepared to infer knowledge beyond reasonable doubt. His Honour then continued:

"There is no evidence that he made any admission of any kind. The only evidence which might, depending upon what weight you give to it, suggests to some extent that he may have known or did know is Mr Copping's evidence, it seems to me. And that would only be on the basis that Mr Copping, it might be thought, alerted him to the possibility at any rate – leaving aside what he knew in the first place – that there had been or might have been some alteration to the mileage on the vehicle. Mr Copping pointed out to him that the copy invoice which comes from Fowles and is attached to the registration papers – as you will remember – appeared to have been altered in some instances. He pointed this out and he said or drew Mr Templar's attention to this and Mr Templar said, oh well Fowles often make a mistake anyway about mileages and other matters, so that means there's no significance in that. But anyway, Mr Copping, although he said it's not the Registry's business to worry about altered mileages, nevertheless had sufficient significance in his mind evidently that he went through the papers and he got out those which had been altered – which Mr Templar had dealt with – and he marked them and put his own signature on them in point of fact and he turned them over to the police. So he it was who alerted the police or put the police on the – made them alive to the possibility of some offence perhaps having been committed and started, put in train this investigation which has resulted, presumably, in these charges. So Copping's evidence may have some significance in relation to the question of knowledge or lack of knowledge on the part of the accused as to the alterations and the fact that the alterations had been made in seven cases of a relatively short period may be relevant to the question of knowledge also. However, the Crown must prove knowledge beyond reasonable doubt. It's an element of fact which is quite clearly essential to proof of guilt in this case."

1. It is arguable that his Honour incorrectly stated that "Mr Copping pointed out to him the copy invoice which comes from Fowles and is attached to the registration papers – as you will remember – appeared to have been altered in some instances". The evidence of Mr Copping was only that he pointed out an alteration to the appellant on one occasion and although the transcript of his evidence does suggest there may have been a plurality of altered readings, his evidence was not conclusive. He said:

"Yes there was on one occasion I noticed that the odometer readings had been altered. I queried Mr Templar then at that stage and I got an answer back that the auction house in Melbourne made mistakes on a regular basis as far as that was concerned and we weren't in the process of recording odometers readings and it didn't worry us too much other than the fact that there were alterations in that regard."

He was then asked on what sort of document had he observed an apparent alteration to the odometer reading. He replied:

"That was an invoice supplied by Fowlers [sic] over at – in Melbourne, the auction house".

In cross–examination he confirmed that he had such a discussion with the appellant on one occasion, but he could not be exact on a date. He went on:

"I recall that I just said asked why there were alterations on the form that you know doesn't normally occur."

There was one invoice, exhibit P21, which evidenced the sale of the two vehicles included in counts 4 and 5, and the odometer readings of both were altered, but it could not safely be concluded on the evidence that it was the invoice to which Mr Copping referred.

1. It was certainly incorrect to say to the jury that what Mr Copping observed had sufficient significance in his mind to cause him to search the records and to turn them over to the police. In fact his observation was not so significant to him. His evidence was "that it didn't make any difference to me ... it didn't particularly worry me because I believe(d) what he was telling me and ... we weren't recording the actual odometer readings so it didn't make any difference to our records." A member of the public "well after October, November or December 1988" brought to his attention that there were discrepancies in odometer readings and that caused him to search the records, as a result of which he found the seven altered readings and he turned them over to the police. This incorrect statement of Mr Copping's evidence may have had a tendency to increase in the minds of the jury the significance of what Mr Copping originally discovered and his reference to it in conversation with the appellant.

1. At the conclusion of the summing up, the foreman of the jury asked to be reminded of what the appellant had said in cross–examination about his conversation with Mr Copping. His Honour read out the relevant passages without comment. I mention this because it suggests that the jury may have thought that the evidence of Mr Copping was significant. It was potentially significant for two reasons. Firstly, the jury might have thought that the response by the appellant to Mr Copping on being alerted to an alteration, was not that of an experienced used car dealer with an innocent mind. This possible significance could arguably have been used by the jury in relation to all counts. Secondly, it might have caused the jury to believe that the appellant had knowledge of an incorrect odometer reading by 29 November at the latest, that being the last day on which an altered invoice was presented to Transport Tasmania but, as I have pointed out, the jury should not, on Mr Copping's evidence, have been satisfied that the conversation occurred by an earlier date nor on any particular date. If that was so this possible significance could properly have been taken into account by the jury only in relation to counts six and seven (because the vehicles in those counts were registered on that day and they were sold subsequently) or count 4 (because the evidence indicated that the vehicle in that count was later sold by the appellant in February 1989). The other vehicles had been sold by him prior to 29 November. In the light of the direction that the jury could take into account all evidence when considering each count, this ground of appeal has been made out. The direction may have resulted in the jury wrongly believing that any adverse significance to be drawn from Mr Copping's evidence concerning the knowledge of the appellant of the false odometer reading in respect of at least one vehicle, could be used against him when considering his state of knowledge in relation to all vehicles. In the circumstances the jury should have been warned about the extent to which the evidence of Mr Copping's conversation with the appellant could be used for the purpose of establishing knowledge at the time of the alleged commission of each count in the indictment.

1. Accordingly, I would allow the appeal, quash the convictions and order that there be a new trial on the indictment. If any of the other grounds of appeal succeeded, no other orders would be appropriate. It is therefore unnecessary for me to determine the other grounds. As the convictions will be set aside it is unnecessary to determine the application for leave to appeal against sentence.