Townsend v Tasmania
[2007] TASSC 17
•30 March 2007
[2007] TASSC 17
CITATION: Townsend v Tasmania [2007] TASSC 17
PARTIES: TOWNSEND, Bruce
v
STATE OF TASMANIA
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 53/2006
DELIVERED ON: 30 March 2007
DELIVERED AT: Hobart
HEARING DATE: 26 February 2007
JUDGMENT OF: Crawford, Evans and Tennent JJ
CATCHWORDS:
Criminal Law – Evidence – Similar facts – Relevance – Proof of system – Receiving stolen property – Several charges – Use of tendency and coincidence evidence.
Aust Dig Criminal Law [519]
Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Particular grounds – Misdirection and non-direction – Whether grounds for interference with verdict – Generally – Misdirection of fact – Misstatement of evidence – Whether reasonable possibility that verdict affected.
Simic v R (1980) 144 CLR 319, applied.
Aust Dig Criminal Law [981]
REPRESENTATION:
Counsel:
Appellant: W A Ayliffe and J A Campton
Respondent: M P Shirley
Solicitors:
Appellant: Murdoch Clarke
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 17
Number of paragraphs: 57
Serial No 17/2007
File No CCA 53/2006
BRUCE TOWNSEND v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
EVANS J
TENNENT J
30 March 2007
Orders of the Court
Appeal dismissed.
Serial No 17/2007
File No CCA 53/2006
BRUCE TOWNSEND v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
30 March 2007
A jury found the appellant guilty of counts 2, 4 and 6 and not guilty of counts 1, 3 and 5 on an indictment. He was convicted and sentenced to imprisonment for 2 years 9 months from 23 June 2006 and it was ordered that he not be eligible for parole until he had served half of that time. He has appealed against the verdicts and the sentence.
All of the counts charged him with receiving stolen property contrary to the Criminal Code, s258. The particulars in the counts were as follows:
1At Glenorchy on days between on or about 1 September 2003 and 27 February 2004, he had in his possession a Nissan Patrol 4-wheel-drive utility knowing it to be stolen property.
2At Otago Bay on days between on or about 24 February 2003 and 27 February 2004, he had in his possession a red Holden Commodore SS utility knowing it to be stolen property.
3At Huonville on days between on or about 1 December 2003 and 27 February 2004, he had in his possession or under his control a 1995 black Holden Commodore utility knowing it to be stolen property.
4At Glenorchy on days between on or about 8 October 2003 and 27 February 2004, he had in his possession or under his control a 41 foot Kreuger drop deck trailer knowing it to be stolen property.
5At the Jackson Street Quarry at Glenorchy on days between on or about 16 July 2003 and 27 February 2004, he had in his possession or under his control another 41 foot Kreuger drop deck trailer knowing it to be stolen property.
6At Glenorchy on days between on or about 1 January 2002 and 27 February 2004, he had in his possession or under his control a Kenworth prime mover knowing it to be stolen property.
The verdict of not guilty on count 1 was directed by the learned judge following a successful no case submission at the close of the State's case. The learned judge thought there to be insufficient evidence to establish that the vehicle was stolen property. There is no need to refer further to the count or the evidence relating to it.
There was no doubt that the vehicles that were the subject of counts 2, 3, 4 and 6 were stolen. Concerning the trailer that was the subject of count 5, whether it was stolen remained an issue. On all of counts 2 to 6 a major issue was whether the appellant was in possession of the vehicles at the times and places specified in the counts. No issue arose out of the fact that the first two counts alleged possession and the other four alleged possession and control. An issue was whether he knew that the vehicles were stolen.
The State's case was circumstantial. There was evidence that all of the vehicles in counts 2 to 6, except the black Holden utility in count 3, were at some time at business premises in Jackson Street, Glenorchy and there was evidence tending to establish that the appellant managed the business operations carried on there. There was evidence that the red Holden utility in count 2 was found by the police to be hidden under the veranda of a house at Otago Bay but there was also evidence that on earlier occasions it was at the Jackson Street premises. There was evidence suggesting that the Otago Bay property belonged to the appellant or was his residence, or that it had some association with the businesses he managed. There was evidence that in every case, attempts had been made to remove the means of identifying the vehicles, for example, by removal of the vehicle identification number (VIN), number plates and registration sticker and in some cases, by creating false identification information on the vehicle. In the cases of the trailer in count 4 and the Kenworth truck in count 6, they had been repainted. With the exception of the red Holden utility in count 2, there was evidence that the appellant personally exercised dominion and control over each of the vehicles. As to the red utility, the State sought to have that inferred from the presence of the vehicle at both the Jackson Street premises and the Otago Bay residence.
The learned trial judge ruled that the evidence on each count was cross-admissible on each of the other counts as both tendency evidence and coincidence evidence. No evidence was given or adduced by the appellant.
I will refer to some of the evidence and will deal first with the evidence that the appellant managed the business operations at Jackson Street. The evidence established that a number of businesses were operated from there and it suggested that they were all connected so far as management and control were concerned. The businesses were named in the evidence as including On Road Off Road Pty Ltd, Australian Securities Investigations, Insulation Tasmania Pty Ltd, Insulate Tasmania Good Air, AusDebt and Island State Test & Tag. The main business premises were at 24 Jackson Street, which was a large area of land containing yards and buildings. Other premises were 22 Jackson Street (next door to number 24), 37 Jackson Street (across the road from number 24 and used for storage) and 28 Jackson Street (described as the quarry).
Evidence was given by Richard Courtney that he was a friend of the appellant and that he worked for him at 24 Jackson Street from about 2000 or 2001 to about March 2004. Like other "employees" who gave evidence, he said he worked as a contractor. It was the appellant who terminated the employment in March 2004. He said that the appellant's wife, Cheryl Townsend, ran the office. Mr Courtney's work was mainly tow truck driving, repossessing vehicles and some mechanical work. In a general sense, it was the appellant who directed him in the work he did. Occasionally, maybe once or twice a year, the appellant directed him to go to the mainland for work, mainly security and truck driving work. Mr Courtney invoiced On Road Off Road Pty Ltd for most of his work, but sometimes Australian Securities Investigations. Evidence was given by Paul Charlesworth that he was employed (as a contractor) to work at 24 Jackson Street in August 2002. The appellant employed him and terminated his employment two years later. When he started "I was looking after ... his insulation business", he said. He was directed in the work he did, sometimes by the appellant and sometimes by Brad Allen, who was referred to by the appellant's counsel in cross-examination as the officer manager, a reference with which Mr Charlesworth did not demur. He agreed that the appellant was often away from Tasmania on business. Evidence was also given by Matthew Harper that it was the appellant who engaged him as "a contractual employee" for On Road Off Road Pty Ltd at 24 Jackson Street in about 2001. He went onto the payroll at the end of 2003 and his employment ceased with the police search of the various premises on 27 February 2004. His work included cleaning, painting and mechanical work on machinery, trucks and tractors. He said that it was the appellant who directed him to do that work, but in cross-examination he agreed that from time to time his work was organised, and he was given directions, by Rodney Hill, who was in charge of the workshop. There was evidence to which I will refer later, that at the Jackson Street business premises the appellant gave instructions to those employees to deal in certain ways with some of the vehicles that are the subject of the charges.
There was evidence from a police officer that in the course of the afternoon of 27 February 2004, when the police conducted coordinated searches of those and other premises, the appellant was present at 24 Jackson Street. Evidence was also given by Ian Pickford, an employee of Forestry Tasmania, that on 29 September 2003, by prior arrangement, he met with the appellant at Strahan to view a demonstration of a mulching machine. The appellant told him that he was the manager of On Road Off Road and that he had other activities connected with his business interstate. He said to Mr Pickford that he was the sole manager, controller and supervisor of all activities. Also in evidence was a "contractor's agreement" between Forestry Tasmania and On Road Off Road Pty Ltd dated 16 April 2003, which provided that notices to the company would be sufficiently given if sent to the appellant at the company's address.
I will deal next with some of the evidence that related directly to each count, other than the first. Count 2 concerned a red Holden Commodore utility Victorian registered number RYM997. It was stolen from outside a Melbourne home on 24 February 2003 and of course, had a particular VIN and engine number. On 27 February 2004, police went to the residence at 31 Otago Bay Road, Otago Bay, with a search warrant authorising them to search the premises. No one was home and when they went to the front door a security alarm was heard to sound. There was no direct evidence that the appellant lived there or had an association with the premises. The evidence of Sergeant Paul was that because the place was secured a decision was made not to enter the buildings at that stage. He said that "it had become known to me that the accused, Mr Townsend, was at another location and it may be some time (before) he could come to Otago Bay so I then directed the search to commence", but only a search of outside areas. It was decided not to break any locks until there was an opportunity for someone to unlock them for the police, he said. The red utility was found under a veranda of the residence. It was well hidden from sight. To reach it, police had to remove two layers of material that concealed what was underneath the veranda, and then remove material that enveloped the utility. While the search was continuing, the appellant arrived at the residence. He was shown the search warrant and appeared to read it.
Evidence was given by Paul Charlesworth that he had seen the black utility, the subject of count 3, "at Bruce's property at Otago Bay", obviously referring to the appellant, when he went there on the appellant's instructions to collect a tractor. He also said that about one and half years after he started working at Jackson Street (he started in August 2002), he saw the red utility at 24 Jackson Street to start with and it was then moved across the road to another property that was used for storage for number 24. It had no registration plates or windscreen. Evidence was given by Matthew Harper that he saw the red utility at 37 Jackson Street, across the road from 24 Jackson Street, when it had no registration plates or windscreen. He said that he had been to 31 Otago Bay Road on three or four occasions for work purposes. Other evidence established that the police found the red utility to be without registration plates or a windscreen. Also missing was a VIN identity plate. To remove it the windscreen would have had to be removed first. The manufacturer's identification plate, normally attached to the front radiator supports, had also been removed.
I deal next with the evidence concerning the black 1995 Holden Commodore utility the subject of count 3, of which the appellant was acquitted. Its Victorian registration number was RCU364. It was stolen from a Big W car park in Ballarat on 23 August 2003. There was no evidence that it was ever at any of the Jackson Street premises. Mr Charlesworth's evidence was that he first saw it at the appellant's property at Otago Bay in 2003. He had gone to that address on the instructions of the appellant, to pick up a tractor. In cross-examination he agreed that he could not say for certain that what he saw was the same black utility as appeared in photographs of the undoubtedly stolen vehicle, merely that it was very similar to it. Evidence was given by Scott Jackman that at about Christmas 2003, the appellant said in the course of a telephone call that he wanted to store a vehicle somewhere. Mr Jackman had a bodyworks business at Grove but considered there was insufficient room for the vehicle there, so he suggested to the appellant that he leave it outside the front of Mr Jackman's home at Lucaston. Two or three days later the black utility was put there and it remained there until the police seized and removed it on 27 February 2004. At that time it had no registration plates or sticker, but the windscreen was intact and the VIN plate remained.
Count 4 concerned a Kreuger drop deck trailer. On 1 July 2003 its Victorian registration number was 29171-S and its VIN was 6FH9079ABSM005390. Its colour was blue. On that day it was leased by its owner, Orix Australia Corporation Ltd, to P & O Transport Australia of West Melbourne and P & O's driver collected it. On 8 October 2003 it was found to be missing from P & O's yard, although it was not reported to the police as stolen until August 2004. On 27 February 2004 police officers went to 24 Jackson Street to search the premises. The trailer was found there and seized. Evidence was given by Richard Courtney that he saw the trailer at Jackson Street in about October or November 2003. He fitted ramps to the rear of the trailer on the instructions of the appellant. Evidence was given by Matthew Harper that he saw the trailer at Jackson Street. Its colour was blue. The appellant directed Mr Harper to paint it maroon, which he did. (Mr Harper described the colour as burgundy.)
When the police seized the trailer it was, of course, painted maroon. The Victorian registration plate was no longer on it. Instead, it bore a Tasmanian registration plate ZT8051. Transport records revealed that to be the registered number of a different vehicle, a Custom Haulmark loader, the registered owner of which was On Road Off Road Pty Ltd of 24 Jackson Street, Glenorchy. The registration sticker on it stated that its chassis number was BT725429. It was Constable Maxwell's evidence that he could see where the original manufacturer's identification plate had been removed from the chassis rail of the trailer. Stamped into metal on the chassis was "VIN-BT725492". The last two numbers were in a different order to the transport record, presumably because of human error. Constable Maxwell's evidence was that he could see where the original VIN had been ground off. By use of a chemical method of restoration, he was able to ascertain that the original VIN was the one in the Victorian registration records for the stolen trailer.
I deal next with the evidence concerning the other Krueger drop deck trailer that was the subject of count 5, of which the appellant was acquitted. It was not found by the police in Jackson Street at the time of the searches of the various premises there on 27 February 2004. Police found it at the quarry (28 Jackson Street) on 7 April 2004. Mr Courtney's evidence was that just after Christmas 2003 he moved the trailer from 24 Jackson Street to 28 Jackson Street at the request of the appellant. That and the fact that it was later found by the police at 28 Jackson Street was the only evidence linking the trailer to the appellant. An issue was whether it was stolen. There was evidence that Orix Australia Corporation Ltd owned a blue Krueger drop deck trailer. Agreed facts were that as at June 2003 its Victorian registration number was 00150-S and its VIN was KT2586. It had tyres that were marked with "ORIX" and serial numbers peculiar to Orix, two of which were 1526 and 1895. On 5 June 2003, Orix leased the trailer to Viking Fleet Services Pty Ltd and it was collected from Orix at Kensington, Melbourne by a driver. Its colour was blue. As at 16 July 2003 it was not in Viking's possession, but it was not until 12 February 2004 that Orix reported its theft to Victorian police.
The trailer found at the quarry on 7 April 2004 was also blue. Its registration plate and manufacturer's plate were missing. It seemed that the VIN had been ground off. By the chemical method of restoration, Constable Maxwell concluded that the original VIN was KT2586 4 88. He first had doubts as to whether or not the 2 was a 2, a Z or an S and as to whether the 4 was a 1. On the trailer were tyres with "ORIX" on them and the serial numbers 1526 and 1895.
I deal finally with the evidence about the Kenworth prime mover, the subject of count 6. It was an agreed fact that on 20 or 21 July 2001, a white 1997 Kenworth T401 model prime mover Victorian registration number NZU871 was stolen from a yard at Williamstown North in Melbourne. Its VIN was 6F5000000VA416856 and its engine number was 1YN07205. Police found it at 24 Jackson Street in the course of their search on 27 February 2004 and seized it. In the course of the afternoon, the appellant asked Detective Sergeant Grierson if he could have his tools removed from the truck and he also wanted a crane and other things he had put on the prime mover behind the cabin. Evidence was given by Paul Charlesworth that he had seen the prime mover at Jackson Street over the whole of the time he worked there from August 2002. He said that it was driven mainly by the appellant and Richard Courtney. It was Mr Courtney's evidence that the prime mover was at 24 Jackson Street for about 18 months to two years before March 2004. He said that he drove it on several occasions and he saw the appellant drive it. It was used for work purposes. It had Victorian registration plates all the time. The crane was fitted onto the prime mover, possibly about 12 months before March 2003. Matthew Harper's evidence largely agreed. He said that the prime mover was at 24 Jackson Street when he started working there, which he thought was in about 2001. He said that it was used for vehicle recoveries and was driven by the appellant and Richard Courtney. In the middle of 2003 the crane was installed on it. It bore Victorian registration plates, he said. Evidence was given about the prime mover by Scott Jackman who operated Jackman's Bodyworks & Towing at Grove. He had done some security work for the appellant and had some business dealings painting and repairing a few vehicles for him. "Bruce would ring me about painting a truck and I've painted a truck ... and a 4-wheel-drive", he said. It was his evidence that in about June or July 2002 he repainted the Kenworth for the appellant and in part payment the appellant gave him a Commodore sedan.
When the police seized the Kenworth on 27 February 2004 it bore Victorian registration plates RNA319. That was not the registered number of the Kenworth when stolen, but was the registration number given on 26 April 2002 to a 1992 Kenworth T600 prime mover in the name of Viking Fleet Services Pty Ltd of Altona North in Melbourne. The registration expired on 26 April 2004. Constable Maxwell could not find the manufacturer's identification plates or the compliance plates. He found signs of them having been removed. He discovered that the VIN had been ground off the top of the chassis rail. By the chemical restoration method he found the VIN of the stolen 1997 Kenworth. The engine number of the stolen Kenworth was still on a plate on the engine block and it was also stamped dot-matrix style into the block.
The State also sought to rely on copies of statements of accounts with Island State Credit Union and the Commonwealth Bank of Australian Security and Investigation, Townsend Family Trust, On Road Off Road Towing, On Road Off Road, Insulate Tasmania Pty Ltd, AusDebt Collections Trust and AusDebt Collections Trust Suspense for various periods between 1 July 2001 and 24 October 2005. Having spent some time perusing them, copies of some cheques in evidence and some agreed facts, I conclude that they would not have assisted the jury in their tasks.
Grounds 1 and 2
These grounds of appeal are:
1The verdict of guilty on Count 2 was unsafe and unsatisfactory because there was no evidence or no satisfactory evidence to find beyond reasonable doubt that the defendant possessed the red utility.
2The verdict of guilty on Count 2 was unsafe and unsatisfactory because the case was circumstantial and a reasonable hypothesis consistent with innocence could not have been reasonably excluded by the jury."
In support of these grounds it was submitted for the appellant that the evidence linking him with the residence at 31 Otago Bay Road was vague and tenuous, and insufficient to constitute a reasonable basis for a conclusion that he possessed or controlled the premises. It was submitted that for that reason, the evidence was insufficient for the jury to conclude that the red utility recovered from those premises was possessed by him. It was pointed out that there was no evidence establishing the ownership of the residence and it was submitted that the evidence was incapable of establishing that the appellant possessed or was linked to the premises, as a resident or otherwise.
The jury did not need to find beyond reasonable doubt that the appellant possessed or controlled 31 Otago Bay Road, before finding him guilty of count 2. What had to be proved to the requisite degree was that on days between about 24 February 2003 and 27 January 2004 at Otago Bay the appellant had the utility in his possession. The following matters would have justified the jury being satisfied of that:
·the vehicle was stolen in Victoria on 24 February 2003 and at that time was registered in Victoria;
·the vehicle was at 24 Jackson Street and then at 37 Jackson Street, where the various businesses were conducted, in 2003 or early 2004, before it was placed at 31 Otago Bay Road;
·when the vehicle was at all three addresses it had no registration plates or windscreen, and having regard to the discovery by the police that the VIN identifying plate had been removed, it was likely that the person or persons in possession at all of the premises knew that it had been stolen;
·that it was hidden away at 31 Otago Bay Road also supported that conclusion;
·the appellant managed and controlled the business operations at Jackson Street and he had a property that he owned or used at Otago Bay, a property which employees of the business visited for work purposes;
·his connection with 31 Otago Bay Road and the vehicle was also supported by the evidence that when police were searching the Jackson Street premises on 27 February 2004 and found stolen vehicles there, he was present for at least some of the time, and when other police were searching 31 Otago Bay Road on the same day and found the stolen utility there, he arrived at that address and was shown and read the second warrant;
·the tendency and coincidence evidence that directly related to the stolen trailer in count 4 and the stolen Kenworth prime mover in count 6 and which satisfied the jury that he was in possession of both of those vehicles, made his possession of the stolen utility all the more likely.
The learned trial judge instructed the jury that the appellant must have had the vehicle in his possession at the material time and, in accordance with the meaning of "have in possession" in the Criminal Code, s1, instructed the jury that a person has a thing in his or her possession if the person has it under his or her control in any place whatever, whether for the use or benefit of the person or another and notwithstanding that another person may have the actual possession or custody of it. It was correctly explained that a person could have a vehicle under his or her control either where the person is or elsewhere, provided that it is at a place where that person, and any other person acting in conjunction with that person, might go without any barrier or impediment to collect the vehicle. Further directions were given about the matter that were appropriate. His Honour reminded the jury of the evidence connecting the red utility with the Jackson Street premises as well as the Otago Bay premises and the appellant with both places, of him going to the residence at Otago Bay when the police were conducting the search and of him reading the search warrant. His Honour then explained to the jury that the State's case was that if all that evidence was put together, into a collection of circumstantial evidence, it led to a conclusion that the appellant had control of the red utility at the place where it was found, in the same way as it was suggested that it was under his control when it was at Jackson Street, a place where he had involvement in the businesses. The question of what other rational hypotheses, consistent with innocence, might have been open on the circumstantial evidence was raised for the jury's consideration. No ground of the appeal attacks the material parts of the summing up.
Ultimately, the question was whether guilt was the only rational explanation for that evidence. The jury's conclusion that it was must stand. The evidence, most of which was unchallenged, supported and justified the verdict. It was not unsafe or unsatisfactory.
Grounds 3, 3A and 3B
These grounds are:
"3The Learned Trial Judge erred in law in permitting the jury to use tendency and coincidence evidence in relation to the issue of possession as to Count 2 and generally in its deliberations as to the counts on the indictment.
3AThe Learned Trial Judge erred in law in omitting to instruct the jury that tendency and coincidence evidence could only be used as proof the accused knew the vehicles were stolen and this category of evidence could not be used in the consideration of the other elements of receiving.
3BThe Learned Trial Judge failed to instruct the jury that tendency and coincidence evidence could not be used to prove the element of possession in the receiving charges contained in the indictment."
By these grounds, it was submitted for the appellant that the use of the tendency and coincidence evidence by the jury should have been restricted by the learned trial judge, on all counts, to the issue of the appellant's knowledge that the vehicles in the counts were stolen, and should not have been used on the issue of his possession of the vehicles.
In his summing up, the learned judge reminded the jury at length of the evidence that was relevant, on each count, to the questions whether the vehicle was stolen, whether it was in his possession and whether he knew it was stolen, including the evidence of the appellant's management and control of the business operations at Jackson Street and the evidence of his connection with Otago Bay. The learned judge then moved on to direct the jury about the use they could make of the evidence relevant to one count on the other counts as tendency evidence and coincidence evidence, as those expressions are used in the Evidence Act 2001, Pt6. Concerning the use of tendency evidence, the jury were instructed that if they were satisfied beyond reasonable doubt that the appellant was guilty of at least two of the counts, it was open to them to conclude that he had a tendency to acquire stolen vehicles knowing them to be stolen, and to use the fact that he had that tendency as a piece of evidence in relation to any remaining count still to be considered.
The use of coincidence evidence was explained to the jury in the following way. They were told that they were permitted to rely on evidence that the appellant committed one or more crimes when considering their verdict in relation to another alleged crime if they thought that the similarities between the established crime or crimes and the alleged crime were too strong for those similarities to be the result of a series of coincidences, and if there was no reasonable explanation for the similarities that was consistent with the appellant's innocence. It was pointed out that similarities relied on by the State included that all five vehicles had been stolen in Victoria [and brought to Tasmania]; from all of them the original number plates had been removed along with one or more sets of identifying items such as VIN, registration sticker, manufacturer's plate and compliance plate; and some of them had been provided with false identification, such as number plates and VIN, and two had been repainted. The learned judge continued:
"So the Crown says that you're entitled to use these similarities as suggested (sic) that the person in possession of these vehicles must have been the same person. The Crown is saying that you're entitled to use these similarities as evidence that Mr Townsend was in possession of all of these vehicles and knew all of them to be stolen."
The learned judge emphasised that the jury needed to be satisfied of guilt in relation to at least one charge before they could use that sort of reasoning in relation to any of the other charges, and continued:
"So what you need to consider is whether the similarities between the charge or charges in respect of which you're satisfied of guilt and the facts in relation to one of the remaining charges are too strong for the similarities just to be the result of coincidence."
It was explained that such evidence was circumstantial and that the jury would need to ask themselves whether the evidence of similarities, together with all the other evidence, was so strong that they could rule out any reasonable explanation for the similarities other than guilt. The learned judge continued:
"So you need to consider what the other possibilities are. Is it possible that there were a number of people acting independently who were responsible for ... the possession of the vehicles that the police seized? Is it possible that Mr Townsend was in possession of a particular vehicle without knowing that it was stolen, acquired innocently? And of course, Mr Ayliffe [the appellant's counsel] says there were all sorts of people at 24 Jackson Street, you can't tell what went on, there were vehicles coming and going and it was all chaotic and it's just not enough for you to rule out in relation to any particular vehicle the possibility that this was nothing to do with Mr Townsend, that he didn't have possession of it, or if he did, he didn't know it was stolen."
It was submitted by the appellant's counsel that the tendency and coincidence evidence, taken at its highest probative value, established no more than that the appellant had a tendency to acquire vehicles that had been stolen in Victoria and then re-birthed (by having their identities disguised), and that he knew they had been stolen. It was submitted that the learned judge erroneously permitted the jury to also use the tendency and coincidence evidence as tending to prove that the appellant possessed the vehicles with respect to which he was found guilty. In written submissions, it was argued for the appellant that "ultimately possession is a state of affairs ... it is not an act or event" citing Lee v Tasmania [2006] TASSC 92. That was an argument raised by counsel in that case, but not accepted by this Court, when dealing with the principles of common purpose that are raised in the Criminal Code, s4. Tendency evidence and coincidence evidence were not involved. Another submission was that in the case of count 2, it was the only charge that alleged that the appellant had possession of a vehicle at 31 Otago Bay Road, and that possession at that address had no striking similarity with possession of other vehicles at Jackson Street. The submission overlooked the evidence that the red utility had been at Jackson Street before it was moved to Otago Bay, thus establishing a similarity in location.
In the case of the use of tendency evidence, it was made clear to the jury that before they used it they had to be satisfied that the appellant was guilty of at least two of the counts. If the jury were so satisfied then they had found beyond reasonable doubt on those two counts that not only did the appellant know that the respective vehicles were stolen, he possessed them. In the case of the use of coincidence evidence, it was made clear to the jury that before the similarities between one count and another count could be used, they had to be satisfied that the appellant was guilty of the first count, which would have meant that they had found that the appellant was both in possession of the vehicle in question and knew it was stolen. It was only then that striking similarities between the evidence relating to that count and another count could be used in the permitted way. It would have been illogical to limit that use to the element of guilty knowledge and not allow it to be used when considering the element of possession. The three counts of which the appellant was found guilty, concerned three vehicles that were stolen in Victoria and ended up, in altered conditions, at the Jackson Street business premises, which the evidence suggested were managed and controlled by the appellant. If he was guilty of possessing one, knowing it to be stolen, then plainly the use of the coincidence evidence had to include the question of possession as well as knowledge. There is no merit in the grounds.
Ground 5
Grounds 3C and 4 were abandoned. Ground 5 is in these terms:
"That the learned Trial Judge erred in law in allowing the jury to use tendency and coincidence evidence because the Notice dated 28th April 2006 did not comply with Rule 5 of the Evidence Regulations 2002 and the learned Trial Judge erred in exercising his discretion to permit tendency and coincidence evidence to be given despite the absence of such a Notice."
Under the Evidence Act, ss97(1)(a) and 98(1)(a), tendency evidence and coincidence evidence are not admissible unless reasonable notice in writing has been given by the State to the accused person of its intention to adduce that evidence. However, under s100(1) and (2), the court has a discretion to admit such evidence despite a failure to give the required notice. By s99, notices are required to be in accordance with any regulations or rules of court. The Evidence Regulations 2002, reg5, prescribe the information that is required to be stated in a notice. The State gave to the appellant a notice that it intended to adduce such evidence about seven weeks before the trial commenced. No objection to the notice was raised by the appellant until the close of the State's case. Counsel then submitted that the contents of the notice did not comply with reg5 and for that reason, and by virtue of ss97(1)(a) and 98(1)(a), the tendency evidence and the coincidence evidence was not admissible. The notice in question stated that the State intended that tendency and coincidence evidence would be given by 16 witnesses, who were named, and added "but reference is made also to the Crown papers generally and all witnesses referred to therein". It stated that the tendency and coincidence evidence referred to was "that on the 27th February 2004, Bruce Townsend had in his possession or under his control the vehicles referred to in the 6 counts of the indictment which were all stolen vehicles; that the Nissan Patrol, the two trailers and the prime mover had all had various markings removed or altered; that all vehicles with the exception of the Nissan Patrol were stolen from Victoria."
It is unnecessary to consider the extent to which the notice did not comply with the reg5. It is agreed that it did not do so, and the learned trial judge found that to be the case. In essence, reg5 required greater detail than was given, such as the substance of the evidence and the date, time, place and circumstances at or in which the conduct or related events occurred. The notice given fell short of those requirements.
At the trial, counsel for the State pointed out to the learned judge that even if the notice was defective, no prejudice had been asserted for the appellant, and that it was clear from the submissions that had been made by the appellant's counsel that he had a full understanding of the evidence concerned. Counsel for the appellant did not challenge either of those assertions. Counsel for the State submitted that the notice was proper and fair, given the circumstances of the case, and sufficient to inform the appellant of what the State had intended. The learned judge determined that the notice did not comply with the regulation because it referred to only some and not all of the evidence in question. Counsel for the State then made application for the learned judge to exercise the discretion in s100 and admit the use of the evidence. Mention was made once again that the appellant had not been prejudiced by any deficiencies in the notice. Counsel for the appellant opposed the application, but once again made no claim of prejudice or surprise. He simply stood on the fact that the notice was deficient.
The learned judge observed that the notice did not spell out what tendency it was asserted the appellant had and it referred only to some and not all of the related events that the State sought to assert would not have occurred coincidentally. However, his Honour observed that the complexity of the evidence would have made it difficult to draft an ideal notice. His Honour determined that the notice made it abundantly clear that the State wanted to go as far as it could in relying on tendency and coincidence evidence and that the inadequacy of the notice had not resulted in any prejudice to the appellant that could not be cured by offering him an opportunity to change his election, which he had made by that stage of the trial, not to adduce or give evidence. The learned judge could not identify anything that would have been done differently at the trial if a perfect notice had been given. For those reasons, the discretion was exercised in favour of the State and the proposed use of the evidence was permitted.
In support of the ground of appeal, counsel for the appellant relied on no argument other than that the contents of the notice were deficient. He was invited to advance an argument that in some way the appellant had been taken by surprise as a result of the deficiencies or that for some other reason he had been prejudiced. Counsel declined to do so, making it clear that the appellant had no basis for advancing such an argument.
The ground is based on nothing but a technical deficiency in the notice. The discretion was exercised in the only way that was appropriate. No miscarriage of justice resulted. The ground must fail.
Ground 6
The ground is:
"The trial on Count 4 miscarried because the learned Trial Judge in summing up to the jury confused the vehicle the subject of Count 4 with the vehicle the subject of Count 5."
In the course of his summing up, the learned judge reminded the jury of the substance of the most material parts of the evidence that related to each of the vehicles in the counts, commencing with the red utility in count 2 and concluding with the Kenworth prime mover in count 6. However, he confused the evidence relating to the trailer in count 4 and the evidence relating to the trailer in count 5. What he told the jury was the evidence concerning the trailer in count 4 was in fact the evidence concerning the trailer in count 5, and what he told them was the evidence concerning the trailer in count 5 was in fact the evidence concerning the trailer in count 4. What he reminded the jury about in those regards is summarised earlier in these reasons. No one in the court raised the errors until it was too late. Neither counsel did, which suggests that they were not paying attention to his Honour's summation of the evidence.
After the verdicts were received and the jury had been discharged and left the court, the learned judge disclosed that he had confused the two vehicles. Some submissions were addressed by counsel for the State but counsel for the appellant made none. The appellant was sentenced on the basis that the jury got it right and was not misled by the erroneous statements. The sentence of 2 years 9 months' imprisonment, with parole eligibility after serving half that time, was imposed on the three counts of which he was found guilty.
It is the appellant's argument that there was a miscarriage of justice as a result of the errors in the summing up. His counsel submitted that there is no way of knowing whether or not the jury were in full agreement, and if so, concerning which of the two trailers. The verdict was announced as a unanimous one but, it was submitted, it may have been that some of the jury based their verdict on the evidence relating to one trailer and the others based their verdict on the evidence relating to the other trailer. It was submitted that there was a real risk that the jury, or some of them, were confused or mistaken about the evidence relating to count 4 and, for that reason, the verdict of guilty could not be permitted to stand. Counsel for the appellant did not accept that the evidence on count 4 was stronger than the evidence on count 5 and in any event, submitted that it would be a dangerous course for this Court to make any assumptions concerning how the jury arrived at the verdicts in question.
Counsel for the State submitted that the Court should conclude that the jury had correctly identified the evidence before finding the appellant guilty of count 4 and not guilty of count 5. The jury had, of course, heard all the evidence and the closing submissions of counsel. As expressed in the indictment, count 4 alleged possession at Glenorchy, whereas count 5 alleged possession at the Jackson Street quarry. The only evidence suggesting that one of the trailers was at the quarry was the evidence that related to count 5. Mr Courtney's evidence was that just before Christmas, he moved the trailer to the quarry at the appellant's request. The police found that trailer at the quarry on 7 April 2004.
Counsel for the State also submitted that the verdicts on counts 4 and 5 were consistent with the evidence, because the evidence suggesting guilt with respect to the trailer in count 4 had more weight than the evidence suggesting guilt with respect to the trailer in count 5. He pointed to the evidence that the appellant exercised dominion over the trailers. Concerning the trailer to which count 4 applied, Mr Courtney's evidence was that he fitted ramps to it on the instructions of the appellant and Mr Harper's evidence was that he painted it maroon because the appellant directed him to do so. However, concerning the trailer to which count 5 applied, the only evidence of the appellant exercising dominion over it was the evidence of Mr Courtney that he moved the trailer from 24 Jackson Street to 28 Jackson Street (the quarry) at the request of the appellant. Counsel for the State also submitted that it was an agreed fact that the trailer in count 4 had been stolen but it was not an agreed fact that the trailer found by the police at the quarry was stolen, and counsel for the appellant had pointed out to the jury in his closing address the possible discrepancies between the chemically restored VIN on that trailer and the VIN on the trailer that had been leased to Viking Fleet Services Pty Ltd. Counsel for the appellant also submitted to the jury that there was insufficient evidence to justify a finding that the trailer referred to in the evidence as having been leased to Viking Fleet Services Pty Ltd, and alleged to be the subject of count 5, was in fact stolen, rather than simply not returned after a hiring out.
The appeal should be allowed if the Court is of the opinion that there was a miscarriage of justice. Criminal Code, s402(1). What that means, in the context of a misstatement of the evidence in the summing up, was explained in Simic v R (1980) 144 CLR 319, when the High Court was considering the Crimes Act 1958 (Vic), s568(1), which was in similar terms to s402(1). The court said at 331 – 332:
"The scope for a misstatement of the evidence will often be very wide, and the effect of such misstatement may vary a great deal. It is right and proper therefore that an onus rests upon an appellant to bring himself within s568 by showing that the misdirection which occurred in the instant case amounted to a miscarriage of justice. Nevertheless, it is putting that onus too high to require it to be shown that it was reasonably probable, rather than possible, that the misdirection affected the verdict. Of course minor inaccuracies and omissions will not be likely to make it possible that the verdict was affected. Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one. In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant."
Is it reasonably possible that the misstatements of the learned judge may have affected the verdicts and that the jury might reasonably have acquitted the appellant of count 4 if the misstatements had not been made? My initial reaction was that both questions should be answered in the affirmative and that it was beyond the capacity of the Court to reject the reasonable possibility of error in the course of reaching that verdict. However, on reflection I have reached the opposite conclusion. The jury heard the evidence and the particulars of count 5, which they had, identified the trailer with which it was concerned as the one at the Jackson Street quarry. Importantly, the evidence of guilt of count 4 was stronger than the evidence of guilt of count 5, for the reasons advanced by counsel for the State. As a result, there is no logical reason that justifies a verdict of guilty of count 5 but not guilty of count 4. The conclusion is that the jury must have understood the correct position with the evidence and that it is not a reasonable possibility that the misstatements of the learned judge affected the verdict. For these reasons, the ground fails.
Grounds 7 and 8
The grounds are:
"7 The sentence of 2 years 9 months was manifestly excessive.
8The sentence of imprisonment of 2 years 9 months did not take into account or give sufficient weight to the extent of the loss to the Appellant as a consequence of the convictions and the achievements, contributions and character of the Appellant."
For the purposes of sentencing, the learned judge made a number of findings and stated a number of facts, which included the following. The values of the red utility in count 2, the trailer in count 4 and the prime mover in count 6, when they were stolen, were respectively $28,000, $30,000 and $50,000, a total of $108,000. The utility belonged to a man from Bacchus Marsh, Victoria, and it was stolen from outside his home in February 2003. It was found by the police at the appellant's home at Otago Bay, where it was so well concealed that any visitor to the premises would not have been able to observe what sort of vehicle it was. Its registration plates and windscreen had been removed, along with a metal plate displaying the vehicle's VIN. Prior to it being at the appellant's home, it had been at the commercial premises of companies, with which the appellant was associated, since March 2003, the month after it was stolen. The trailer belonged to a public company in Melbourne. It was hired out to a transport company based in west Melbourne in July 2003 and that company found it to be missing in October 2003. Later that month or in the following month, it was at the commercial premises of the companies with which the appellant was associated. The appellant directed a worker to paint it maroon and another worker to install ramps to the back of it. When recovered, it bore registration plates that belonged to a different trailer that was registered in the name of a company associated with the appellant. The prime mover was owned by a man from Altona North in Victoria. It was stolen in July 2001 from a yard in the Melbourne suburb of Williamstown North. It was regularly used by On Road Off Road Pty Ltd, a company with which the appellant was involved in its management, for over 12 months before police recovered it from that company's premises. The appellant had it repainted with the company's name during 2002. Before it was recovered, its registration plates, registration sticker, manufacturer's plate and compliance plate had been removed, and the VIN had been ground off the chassis rail. False registration plates and sticker had been placed on the vehicle. It was noted by the learned judge that he had no evidence establishing how the appellant acquired the vehicles or how they came to be in Tasmania.
The learned judge regarded the crimes as very serious, involving property worth a little over $100,000 and a sustained course of conduct on the part of the appellant. He had shown a preparedness to retain valuable stolen property and use it for business purposes over a lengthy period. He had shown no remorse. The learned judge did not regard the fact that the appellant may have had nothing to do with the theft of the property as a mitigating circumstance and concluded:
"Without people like this prisoner being willing to keep and use stolen vehicles, the vehicles in question would probably not have been stolen. Disguised stolen vehicles are very hard to locate and identify, particularly when they have been moved interstate. In order to deter others from this sort of crime I need to impose a substantial prison sentence."
All of those statements were justified and the sentence should be reviewed accordingly.
The appellant was 45 years old. He had dozens of minor convictions, mostly for speeding. He was fined $50 for stealing when he was 19 years old, but had no other convictions involving dishonesty. He left school when he was 15 years old and had worked very hard ever since, and had been a successful businessman for many years. He and his wife had operated businesses involved in towing and repossessions, insulation work, mulching, transport, security services, evictions, interstate strike-breaking work, credit enquiries and training, amongst other things. He was highly regarded by many business colleagues. He had been a committed family man for many years.
The learned judge found that a number of the appellant's business operations would suffer very seriously as a result of his convictions and imprisonment. A number of his areas of work would be closed to him, particularly those with strict licensing requirements. In summary, his convictions were likely to have an enormous impact on his business plans and on his domestic arrangements.
It was submitted by counsel for the appellant that the sentence exceeded the normal range of sentences for such a crime. That is true. However, judges have rarely imposed sentences for the crime in similar factual circumstances. The value of the property was substantial when compared with the vast majority of receiving cases and having regard to the factors to which the learned judge referred, including that the property in question was stolen interstate and moved to Tasmania, a sentence of imprisonment greater than the usual range for the crime was demanded. The sentence of 2 years 9 months' imprisonment was long for an offence of dishonesty involving property to the value of about $100,000 and an offender who appeared to be of good character and record until the commission of the crimes and for whom the consequences of the convictions will be highly detrimental. If he had pleaded guilty to them, the sentence would have been manifestly excessive having regard to that mitigating factor. But he did not do so, and in all the circumstances I do not regard the sentence as falling within that category. For these reasons the ground fails.
Conclusion
I would dismiss the appeal against the convictions and the sentence.
File No CCA 53/2006
BRUCE TOWNSEND v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
30 March 2007
I have had the benefit of reading the reasons for judgment prepared by Crawford J and agree with his reasons for dismissing the appeal against the convictions and the sentence. As to count 6, I should say that both my initial and concluded views accord with Crawford J's concluded view. In my view, the evidence of guilt on count 4 was significantly stronger than the evidence of guilt on count 5 and there is no logical reason that could justify the jury convicting the appellant on count 5 but acquitting him on count 4. The jury must not have been misled by the learned trial judge's mistake in the course of his summing up when he confused evidence in relation to the trailer in count 4 with evidence in relation to the trailer in count 5. There is no reasonable possibility that the mistake affected the verdict.
I would dismiss the appeal against the convictions and the sentence.
File No CCA 53/2006
BRUCE TOWNSEND v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
30 March 2007
I have read the reasons for judgment of Crawford J and agree with his conclusions. I would also dismiss the appeal.
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