Trajovski v The Queen

[2017] NSWDC 325

District Court

New South Wales

Medium Neutral Citation:	Trajovski v R [2017] NSWDC 325
Hearing dates:	24 – 26 July 2017
Date of orders:	26 July 2017
Decision date:	26 July 2017
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Appeal is dismissed
Catchwords:	CRIME – APPEAL FROM LOCAL COURT – 2 offences of recovering stolen goods – Evidence – Whether Crown could call rebuttal evidence when, for the first time, appellant said in evidence that an item had been lent to him by a neighbour, when prosecution had no notice of such a defence – Coincidence Evidence – Whether fact that 2 different items were stolen from a construction site, with other property, required prosecution to serve a notice under Evidence Act 1995 s98(1)(a) – Recent possession of stolen property
Legislation Cited:	Crimes Act 1900 Evidence Act 1995
Cases Cited:	Bruce v R (1987) 74 ALR 219 Charara v R [2006] 164 A Crim R 39; [2006] NSWCCA 244 McCarthy v R (1993) 71 A Crim R 395 Parker v R [1982] 41 ALR 576 R v Bellamy (1981) 3 A Crim R 432 R v Cross (1995) 84 ACrimR 242 R v Rice [1963] 1 QB 857 Saleam v R (1989) 16 NSWLR 14; 39 A Crim R 406 Shaw v R (1952) 85 CLR 365 The Queen v Chin (1985) 157 CLR 671
Category:	Principal judgment
Parties:	Mile Trajovski (Appellant) Regina (Respondent)
Representation:	Counsel: Mr Angelov (Appellant) Mr Jager (Respondent)
File Number(s):	2014/321028
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 04 November 2016 Before: Magistrate Milledge File Number(s): 2014/321028

Judgment

1. HIS HONOUR: This is an appeal against convictions recorded by Magistrate Milledge sitting in the Downing Centre Local Court on 4 November 2016. The appellant was charged with two offences contrary to s 188(1) of the Crimes Act 1900. The first charge was that between 21 August 2014 and 31 October 2014 at Alexandria the appellant did receive a Makita drop saw, the property of Grant Baxter, which had before then been stolen, and the accused at the time when he received the said property knew the same to have been stolen. The second offence charged was similar. It was that between 21 August 2014 and 31 October 2014 at Alexandria he did receive eight 15 litre Dulux Weathershield paint cans, the property of Serafim De Sousa, which had before then been stolen, and the accused at the time when he received the said property knew the same property to have been stolen.

2. It is convenient to divide these reasons into two parts, the first part concerns the drop saw.

The drop saw charge

3. There is no dispute that the drop saw was in fact stolen. The defence admitted, without objection, a statement made by Mr Grant Baxter. It became exhibit 5 in the Local Court. Mr Baxter was, at the relevant time, the owner of a business which was probably incorporated because he also describes himself as the director of the business, the business being known as JD Panel Systems. The statement continues thus:

“4. On 3 May 2014, I commenced work at 6A Huntley Street, Alexandria. I was given work to install cool rooms in a new development there. 6A Huntley Street, Alexandria is a two storey complex with construction fencing surrounding the complex. This fencing is at all times locked when the site is unattended. As you approached the second floor, it was blocked off by further construction fencing.

5. About 4pm on Thursday 21 August 2014, I finished work at 6A Huntley Street, Alexandria. I locked my steel toolbox up on the second floor of the complex. My toolbox contained two Makita drop saws, two Hitachi drill kits in their boxes, two Makita drill kits in their boxes, a Dewalt hammer, a Makita steel saw, a Makita grinder, a Makita radio, and a lufkin laser level.

6. About 7am on Friday 22 August 2014 I arrived at the job site to commence my day at work. As I approached the complex, I noticed that my tool box was now on the first level. As I approached closer, I saw that the tool box has its locks broken and the hinges sawn off by what seemed a grinder.

7. I rummaged through the toolbox and noticed that the above tools were all gone and the only thing left was a few power leads, a few [planes] and a few spirit levels. I reported the matter to police over the Police Assistance Landline.

8. On 3 November 2014, I received a phone call from Constable Dimovski stating that he might have one of my Makita drop saws. About 11.50am on the same day I attended Newtown Police Station and saw my Makita drop saw.

9. I know that this drop saw is mine as it still has my Dewalt stand attached to the bottom. The catch bag has been taken off, which I do for convenience as it usually rips the bag up when I cut aluminium. I also know the drop saw is mine as the safety button is broken and has been for some time. I have used this Makita drop saw almost every day for about three years.”

There is no dispute that a Makita drop saw found in the possession of the appellant at the time that a search warrant was executed by the police was Mr Baxter’s drop saw that he so vividly describes in par 9 of that statement.

4. On or before 30 October 2014 police obtained a search warrant issued by the Local Court at Parramatta. At 10.50pm on 30 October 2014 Senior Constable Tran Lam, and Senior Constable Braith Boyton, attended the residence of the appellant at 82A Silver Street, St Peters. There were also present Sergeant Andrew Evans, Senior Constable Adam Packer, Constable Adam Churchill, Constable Matthew Kane, Constable Nathan Jones, and Acting Inspector Vincent Azzopardi. There were also present officers from the Public Order and Riot Squad. It would appear that the officers from the Public Order and Riot Squad forced entry into the appellant’s residence.

5. At the rear of the appellant’s premises was a structure described by some as a shed, and by others as a garage. Nothing turns on that. The police observed numerous containers of paint in that structure. I shall refer to it as the shed. There is nothing suspicious about that fact because the appellant is a painter by occupation, and has been for all of his adult life. As Magistrate Milledge observed when he was giving his evidence, he had been a painter for 50 years having commenced assisting his father at the age of 10. It is clear that her Honour may have had the appellant’s date of birth available to her on her court papers.

6. At about 12.52am on 31 October 2014 Constable Churchill found underneath a work bench a Makita drop saw. That discovery was witnessed by Senior Constable Lam and also by Senior Constable Adam Packer. A statement of Constable Adam Churchill was admitted into evidence and in par 10 of that statement, which became exhibit 9, he records his discovery of the Makita drop saw underneath a work bench on the right hand side of the shed at about 12.52am.

7. Questions were then asked of the appellant by Senior Constable Adam Packer. His statement became exhibit 8 in the Local Court. He also gave viva voce evidence in the Local Court. Paragraph 8 of Senior Constable Packer’s statement is this:

“About 12.52am Constable Adam Churchill located a Makita drop saw, which was believed to be stolen, in the rear garage of the premises and bought [sic] it to my attention.

I said - ‘Mr Trajovski, I’m going to ask you some further questions in relation to this drop saw which was located at 12.32 just underneath this work bench. Again, I’m going to remind you that you don’t have to say or do anything if you do not want to. I will record what you say or do and I can use this recording in court. What can you tell me about this saw?’

The accused said - ‘This saw’.

I said - ‘Is it yours?’

The accused said - ‘Yeah’.

I said - ‘It’s your property?’

The accused said - ‘Yeah’.

I said - ‘When you did you buy it?’

The accused said - ‘I don’t know. A long time ago’.

I said - ‘Where from?’

The accused said - ‘I don’t know. I can’t remember’.

I said - ‘You can’t remember? How many years ago, sir?’

The accused said - ‘I don’t know’.

I said - ‘Do you know how much it’s worth? How much did you pay for it?’

The accused said - ‘I don’t remember’.”

8. Subsequently the accused was arrested and taken to the Newtown Police Station where he participated in an electronically recorded interview with a suspected person. A redacted copy of the transcript of that ERISP became exhibit 6 in the Local Court. The interview commenced at 2.51am on Friday 31 October 2014 almost two hours after the drop saw was found by the police. The relevant part of the interview is this:

“Q. 95. Do you remember that, do you agree that we found that big drop saw?

A. Mm-hmm.

Q. 96. What can you tell me about that?

A. ...

Q. 97. Is it yours?

A. Yeah.

Q. 98. How long have you had it for?

A. I don’t know.

Q. 99. A long time, a short time?

A. A long time.

Q. 100. A long time as in months?

A. Yeah.

Q. 101. Do you remember where you got it from?

A. (No audible reply)

Q. 102. Did you pay for it?

A. Yeah.

Q. 103. Sorry?

A. Yeah.

Q. 104. Do you remember how much?

A. No.”

9. The conversation between the appellant and Senior Constable Packer that I earlier recited is corroborated verbatim by Senior Constable Lam. Senior Constable Lam was the first witness called in the Local Court by the Police Prosecutor. In cross-examination Senior Constable Lam agreed that English was not the appellant’s first language. It is common ground that the appellant came to Australia from the former Yugoslavia, from that part of Yugoslavia that now calls itself Macedonia, and that he speaks a southern Slavic language called Macedonian. However Senior Constable Lam was not asked any questions about the conversation between Senior Constable Packer and the accused in the shed. He was asked some questions about whether the appellant required the assistance of an interpreter at the time that the ERISP was conducted. The Senior Constable agreed that at times during the ERISP the appellant was nodding off to sleep and yawning. He also agreed that at times there was mumbling and sometimes the appellant’s answers were indistinct. The Senior Constable said that he did not ask the appellant whether he required the assistance of an interpreter at the time of the electronically recorded interview, but there is nothing that is recorded in the transcript of the ERISP that suggests that the appellant did not understand the questions that were being asked of him.

10. In cross-examination of Senior Constable Packer, the Senior Constable was asked whether he perceived any form of intoxication and in particular where the appellant smelt of alcohol and he said that he did not make any such observation. He agreed that the appellant had a conversational understanding of the English language and that must be the case because the appellant had been living in St Peters for 20 years at the time that he was interviewed and perhaps he has lived in Australia for longer than that. S.C Packer was also challenged about whether it was necessary for the appellant to have English translated to him by his son, but, according to Senior Constable Packer, the only person for whom the appellant’s son translated was the appellant’s wife. No questions were asked of either Senior Constable Packer or Senior Constable Lam to suggest that the conversation deposed to by both Senior Constables was inaccurate, incomplete or erroneous.

11. After the close of the Police case the accused elected to give evidence. He said that he had been living at 82A Silver Street St Peters for 23 years. He said that he obtained possession of the Makita drop saw “several months before - maybe a couple of months before”. He said that he borrowed it from a neighbour Mr Velko Kostovski. Mr Velko Kostovski, to whom I shall refer hereafter as Velko, was the son of a friend of the appellant who had died. That friend was Dusko Kostovski who lived in the same street as the appellant lived and where the Velko still lived. The best evidence is that Mr Dusko Kostovski died in 2011. The appellant had known Mr Dusko Kostovski “from the old country” by which I infer he meant Macedonia. Velko speaks Macedonian and I therefore infer that his father Dusko Kostovski spoke Macedonian which is the same language as the appellant’s first language. The relationship between Dusko Kostovski and the appellant was clearly a longstanding one. According to the appellant’s evidence in-chief Mr Dusko Kostovski worked as a builder and had all the tools that he needed for working in that trade. The evidence of the appellant in-chief was that he would borrow tools from time to time from Dusko Kostovski. He mentioned he had borrowed a welding machine and an electrical drill from him.

12. When Mr Dusko Kostovski died, Velko was serving a prison sentence. He was released on parole in March or April 2014. It is common ground that after his release from prison on parole Velko was selling his father’s tools, although there is a minor dispute as to the means by which the tools were being sold. The appellant said that at some time he had borrowed a welding machine from Velko and that he had asked Velko if he had a drop saw that he could borrow and Velko replied positively to his request and told the appellant that he would bring the drop saw over to the appellant. The reason that the appellant wanted the drop saw is that he had a job at the time at Kogarah and that he was working with skirting boards and window frames and he needed the drop saw for that purpose.

13. Velko, according to the appellant, brought the drop saw over to the appellant’s premises on the day after the appellant inquired of the Velko whether he had a drop saw that could be lent to him. The appellant said that he used the drop saw at the job at Kogarah. That job was completed over a period of ten days, ten days being required for the job because it was interspersed with other jobs. Accordingly, if the appellant borrowed the drop saw about two months before the execution of the search warrant it would have been in his possession for some 60 days and that the first of those days ten days was taken up with the job at Kogarah and therefore the drop saw would have remained in his possession for a further 50 days or thereabouts prior to the execution of the search warrant.

14. At p 49 of the transcript of 10 May 2016 this questions was asked:

“Q. Was there any discussion between you and Velko as to how long you could borrow it for?”

The transcript records an answer and then records an objection being raised, and at p 51 line 9 her Honour said “I won’t allow it” by which I infer that she was rejecting the answer recorded which was not directly responsive to the question and was hearsay. During the course of the debate on the objection her Honour inquired as to whether Mr Velko Kostovski was present to give evidence, Mr Angelov (who appeared for the appellant) replied that he was not and her Honour then replied, “He’s his neighbour. He’s his friend”. Mr Angelov then told her Honour that there were reasons that he did not wish to go into as to why he was not present. After her Honour disallowed the question which I recently quoted, the evidence continued thus:

“Q. You started to give some evidence about what you think Velko’s family would have thought in relation to the drop saw. Don’t worry about that. Just think about your own intentions. Did you intend to return it to Velko Kostovski?

A. Yes.

Q. You gave some evidence earlier about having finished the job at Kogarah about ten days after you’d borrowed it. Is there a reason why you didn’t return it to Velko at the end of those ten days?

A. He didn’t come back to ask for it and I - I hadn’t seen him afterwards.”

Mr Angelov then asked the appellant a question which was objectionable. It cavilled with the last answer given by the appellant. An answer is recorded on the transcript. Her Honour then said, “No”, then an objection was raised by the Prosecutor and her Honour is recorded as saying, “Same ruling as before”, and I assume that the objection was not the question, although it ought to have been, but to the answer which was clearly hearsay.

15. However, after that objection, Mr Angelov asked another objectionable question. The transcript records this:

“Q. Were there any other occasions, apart from that, between the time you finished your job at Kogarah and 30 October, that you had a conversation with Velko?

A. I’ve seen him as a neighbour for a short while - a number of times but nothing was discussed specifically.

Q. When you say, ‘nothing was discussed specifically’, what are you referring to specifically?

A. Drop saw.”

Mr Angelov was persistent in seeking to have the appellant resile from the statement that after he had borrowed the drop saw from Velko, he had not seen Velko again prior to the execution of the search warrant.

16. Evidence was later adduced in the defence case from Mr Vlado Pribetic, who had also used to work as a painter and had known the appellant for 15 or 20 years as a family friend but who at the time of giving evidence, had stopped painting owing to a work injury as a result of which he was eventually granted an invalid pension. He gave evidence that about two months before the appellant was arrested by the police, he was a guest at the appellant’s house when, “the guy came and dropped the drop saw on the floor”. By that he meant, the lounge room floor and specifically, he later said, that he dropped the drop saw behind the lounge in the lounge room of the appellant’s residence. According to Mr Pribetic, the drop saw was deposited at the appellant’s residence at about 3 o’clock or 4 o’clock on the afternoon of the day in question although he could not identify the day. He was later to tell the Court that he visited the appellant’s house three or four times each week. He identified the, ‘guy’, as being, “Velko”, although in the transcript, that name is spelt, V E J L K O. He knew that Velko lived across the road from where the appellant was living. When asked his age, he initially estimated 40. When Velko gave evidence, he said that he was 36 years old, but later when in cross examination, Mr Pribetic said that he did not know whether Velko was 40 or 39 or 37 years old. Later, he even volunteered that he could be 36 years old but that was only after it had been suggested to him, that Velko was in fact 36 years old at the time that the witness was being cross examined. Nothing turns on that.

17. Mr Pribetic said that he thought the drop saw was grey. He was unable to identify the first name of Velko’s father and was unsure of his occupation but he knew that he had something to do with a building site and described him as perhaps being a roof tiler or concreter, or even a cleaner. He was unable to recall any conversation between the appellant and Velko, between the appellant’s wife and Velko, or between himself and Velko.

18. In cross examination, he said that he did not know the provenance of the drop saw. All he knew was that the drop saw had been deposited at the appellant’s house. Later in cross examination, this evidence was given:

“Q. But you can’t say for certain that it was Velko?

A. I know the face but I can’t say, you know, if it was him, if he drop it - if I saw him. I can’t say was ..(not transcribable).. if it was him.”

On the following page of the transcript, that is page 54 of the transcript of 2 August 2016, the witness agreed that he only saw the person he described as Velko, “for a few seconds”, and that he only saw a side view of him. The fact that he only saw Velko for a, “couple of seconds”, was referred to again in re-examination.

19. Evidence from the appellant’s wife, Vera Risteska, was that Velko dropped the drop saw into their house approximately a month before the police executed the search warrant. She confirmed that she, her husband and Mr Pribetic were sitting in the lounge room on a sofa watching television when Velko dropped it into their lounge room and placed it behind the sofa. She was shown photographs of the drop saw confiscated by police at the appellant’s premises, which were exhibit 3. She said that the drop saw that she saw was “a different colour” but that may well be just the difference between the photograph and the real object. She went on, however, to say this:

“Q. On the day, did you have a look at it from every angle?

A. Not that day, but later on I had to move it to clean. I was pulling it around to clean the room.

Q. Was that later the same evening? You gave some evidence that you..

A. ..(not transcribable).. some other day.

Q. Do you remember how many days it stayed on the lounge room floor?

A. Until the police came. It was close to the couch. And there was like a small room adjacent and it was over there, close to the window.

Q. When you say a small room next to the lounge, can you describe what shape the lounge room is?

A. It’s like wide open. It’s - the lounge room is a pretty large room and behind the couches there’s like a space ..(not transcribable)... there were no doors or anything.

Q. You have a clear recollection of a few days later moving it when you were cleaning?

A. Yes.

Q. Your evidence earlier was that you remember it being there up until the police coming and performing the search at your house?

A. Yes. I can’t recall where the machine on the day when they came were on this ..(not transcribable).. or somewhere in the garage. I forgot. I forgot.”

20. She went on to say that a few days after the appellant was arrested, she had a conversation with Velko who had come over to their home to help repair the door which had been broken when the police executed the search warrant. In other words, she gave evidence of a friendly interaction between herself and Velko after the appellant had been arrested. In evidence on that same day, 2 August 2016, she said that Velko was a regular visitor to her house as was his family. On the next occasion when she gave evidence, 4 November 2016, she gave evidence of even more regular visits to her house. The evidence is this:

“Q. Do you agree with me that Velko and your family have had a falling out? They have had a disagreement, they don’t talk to each other anymore?

A. We, we used to be on good terms. He would come often to our place. He dropped that machine for us to use it. He was coming and cleaning there. He bought it in for us to use it and I don’t know where he, whether it was for his father’s, I don’t know, it was just a friendly gesture on his behalf.

Q. I put it to you that [you] were no longer on good terms before the drop saw had been stolen?

A. No, we were. Every single day he would be coming to our place and we are neighbours and we lived very friendly.”

21. Velko was not called in the defence case. The Crown sought to call Velko in rebuttal of the defence case. The argument about that in the Local Court can be found between pp 11 and 18 of the transcript of 4 November 2016. Her Honour’s ruling can be found on p 18 of the transcript. It is this:

“I do not see how that has got anything to do with it, what [intelligence] they [the police] had on Kostovski. It is your client who in a very positive way has asserted that it was brought to his house. He has also asserted this relationship between the two and the breaking down, particularly Ms Risteska, of the relationship. No, it [is] a matter that was firmly raised by your client in his viva voce evidence and not earlier. He was simply saying that he did not mention the name because he did not want to get someone in trouble is certainly not sufficient reason as to why he would shield anybody. I accept that the prosecution have been taken by surprise with that evidence. I propose to allow that witness to be called.”

I should, before citing that, have recorded that, in-chief, the appellant had volunteered that he had not mentioned Velko Kostovski when he was being interviewed by the police because “I didn’t want to involve anybody else at the time because I couldn’t think clearly. I was in such a shock”. That piece of evidence explains the last part of her Honour’s ruling.

22. Velko Kostovski denied lending any tools at all to the appellant and denied in particular lending a Makita drop saw to the appellant.

23. The first ground of appeal is that her Honour erred in admitting the evidence in reply from Velko and that that evidence ought be ignored or discarded by me sitting on appeal and that when I discard that evidence I could not be satisfied beyond reasonable doubt of the Police case against the appellant on the charge of receiving the Makita drop saw.

Rebuttal evidence

24. The first issue is what is the relevant legal test. The topic of evidence in rebuttal in criminal cases in the Australian edition of Cross on Evidence commences with a citation from the judgment of Winn J sitting in the English Court of Criminal Appeal in R v Rice [1963] 1 QB 857 at 860. The citation is this:

“There is a general principle of practice, although no rule of law, requiring that all evidential matter that the Crown intends to rely upon as probative of the guilt of the defendant…should be adduced before the close of the prosecution’s case if it be then available”.

The learned authors of Cross on Evidence then continue thus:

“It follows that the power to allow further evidence to be called by the Crown after it has closed its case is exercised very sparingly. The principles in question are of ‘fundamental importance’”.

Cited as authority for the last proposition is Parker v R [1982] 41 ALR 576, a decision of the High Court of Australia.

25. The test to be applied has been authoritatively laid down for Australia by the High Court in Shaw v R (1952) 85 CLR 365. Dixon, McTiernan, Webb and Kitto JJ delivered a joint judgment. Commencing at 378 their Honours said this:

“Now an extremely strict rule has been adopted in the English Court of Criminal Appeal with respect to the discretionary power of a presiding judge to allow the prosecutor to call evidence after the close of the case for the defence. The rule is adopted from the language attributed to Tindal CJ ion the report of R v Frost (1839) 4 St Tr (NS) 86 at p 386. His Lordship is reported to have said:

‘There is no doubt that the general rule is that where the Crown begins its case, like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why the matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown.’

The great limitation contained in the language lies, not in the expression ‘ex improviso’, which means no more than ‘unexpectedly’ or ‘suddenly’, but in the words ‘which no human ingenuity can foresee’. In the report in Carrington & Payne (1839) the words ascribed to Tindal CJ are:

‘But if any matter arises ex improviso, which the Crown could not foresee, supposing it to be entirely new matter, which they may be able to answer only by contradictory evidence, they may give evidence in reply.’

The decisions in England allow the presiding judge at a criminal trial to call a witness if he thinks the imperative demands of justice require it. This view was acted on in Victoria (R v Collins). But in Titheradge v The King (1917) 24 CLR 107 this Court denied the power. In England the rule expressed in the language of Tindal CJ is applied alike to the power of the judge to call a witness and to his power to allow the prosecution to recall a witness or call a new witness once the case for the prosecution has closed and the prisoner has gone into his case. In R v Frost it was probably not intended to state an exhaustive rule. But how rigidly the principle against reopening the case for the prosecution was applied may be seen from the striking decision by Garrow B in R v Stimpson. In the end the language of Tindal CJ has come to be used in England as a criterion (R v Harris; R v Liddle; R v McMahon; R v Day). The earlier cases of R v Crippen and R v Sullivan seem to have allowed more flexibility. The formula adopted from Tindal CJ has little to commend it. The words “which no human ingenuity can foresee” hardly express a legal principle. They are rhetorical, but if literally understood they lay down a test which could almost never be satisfied. Clearly the principle is that the prosecution must present its case completely before the prisoner’s answer is made. There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity. When the prisoner seeks to prove good character evidence may be allowed in reply. But the prosecution may not split its case on any issue. The Court possesses a power to allow further evidence to be called, but it must be exercised according to rule and the rule is against reopening the Crown case unless the circumstances are most exceptional. We are not disposed to lay down the rule in the terms adopted from Tindal CJ in R v Frost. It is a matter of practice and procedure, and in such matters, even where the procedure is criminal and is directed to safeguarding the position of the accused, there is less reason for closely following English authority than where the development of the substantive law is involved. It is, for example, difficult to apply the rule where the jury ask for the recall of a witness or further proof or disproof of a fact. It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence....Further, although we have not thought it proper to adopt the formula of Sir Nicholas Tindal, the English cases make it plain enough that generally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen. Again, it may be pointed out that even an unexpected occasion may be of such a nature that it would have been covered, had the Crown case been fully and strictly proved.”

26. As ought be clear from what I have just cited, the circumstances in which evidence may be offered in rebuttal is not a closed number of cases. The Crown case in the current matter was based upon recent possession. The drop saw had been stolen overnight between the 21st and 22 August 2014 and was found in the possession of the appellant on 31 October 2014 two months and ten days later.

27. A more recent exposition of the relevant law is contained in the judgment of Gibbs CJ and Wilson J in The Queen v Chin (1985) 157 CLR 671. Commencing at 676 their Honours said this:

“The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v The Queen; Killick v The Queen (1981) 147 CLR 565 and Lawrence v The Queen (1981) 38 ALR 1. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: R v Levy and Tait (1966) 50 Cr App R.198) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused’s good character, providing that the prosecution had not anticipated the raising of the issue of this kind and lead evidence with regard to it, for the prosecution must not split its case on any issue. Also it has been held that evidence may be given in reply to prove some purely formal matter, the proof of which was overlooked in chief.”

The principle, therefore, is that evidence may be recalled in reply on an issue that was not reasonably foreseeable by the Crown and if the evidence was not a necessary part of the Crown case. As I have mentioned the Crown case relied upon recent possession.

Recent possession

28. Evidence that an accused was in possession of recently stolen property may be evidence that the accused was either the thief or the receiver of the property: R v Bellamy (1981) 3 A Crim R 432; Bruce v R (1987) 74 ALR 219; Saleam v R (1989) 16 NSWLR 14; 39 A Crim R 406. In order to prove recent possession the prosecution does not have to prove possession in the same way as it does in relation to an offence involving possession but it is sufficient if it is shown that the accused had actual physical possession or that the property was in the physical possession of a person over whom the accused had some control. The nature of the possession will vary with the nature of the property: McCarthy v R (1993) 71 A Crim R 395; R v Cross (1995) 84 ACrimR 242. It is not necessary for recent possession that the accused be found in possession of the property at the time of his arrest provided that at some time he had the property in his possession. That principle is set out both in Saleam v Regina and Regina v Cross.

29. In the current case there is no dispute that the drop saw was found in the appellant’s shed which is where he kept the paints, that he used in his trade or business, and other requisites of his trade or occupational calling as a painter, including tools. It is not to the point that he may have been in the house at the time of the execution of the search warrant. The drop saw, being a tool, was in his shed and was clearly at all times in his power and custody.

30. When the Crown relies upon recent possession the Crown does not need to prove that it was not in the possession of another person. The Crown did not need to prove that the drop saw was not in the possession of Velko Kostovski. It did not need to prove that the drop saw was not in the possession of Velko Kostovski’s mother or younger brother. The Crown did not need to prove that the drop saw was not in the possession of any other resident of Silver Street, St Peters. It did not need to prove that the drop saw was not in the possession of any resident of St Peters, indeed, it did not prove that the drop saw was not in the possession of any other person in the State of New South Wales. Therefore, he did not need to call Velko in the Crown case to prove its case against the appellant.

31. Electronically recorded interviews are played in criminal cases, not to prove the Crown case but to put forward the explanation, if any, given by the accused person for the alleged criminal activity and the Crown is required to disprove anything raised by the accused in the electronically recorded interview. If the appellant raised with Senior Constable Packer at the time the drop saw was discovered that he was lent to him by Velko the Police would have had to have called Velko in their case. If the accused had said in his electronically recorded interview that he had borrowed the drop saw from Velko the Police would have needed to call Velko in their case. However, the accused did neither of those things.

32. The police prosecutor told the learned Magistrate that she had “no inkling” that the appellant would say in his defence that he had borrowed the drop saw from Velko. The first witness in the Police case was Senior Constable Lam who he was the officer in charge. He was not cross-examined about whether he had made enquiries of Velko Kostovski as to whether he had lent the drop saw in question to the accused. If he were asked such a question and denied that he made any such enquiry, no doubt the enquiry would have been made and appropriate evidence called before the Police case was closed. However, no questions were asked of the officer in charge as to whether he had made any such enquiry. Mr Kostovski was never mentioned at all in the Crown case either by the Police Prosecutor or by learned counsel for the appellant, Mr Angelov. Using the Latin phrase used by Tindal CJ in Regina v Frost the statement by the appellant that he borrowed the drop saw in question from Velko arose ex improviso, unexpectedly and unforeseeably.

33. The appellant, however, maintains that the Police ought not to have been permitted to call evidence in reply unless the Police established that they had no intelligence whatever of the involvement of Mr Kostovski with the appellant. However, there is absolutely no factual foundation for any assertion that there was some intelligence concerning the appellant communicated to the police by Mr Kostovski. There was no questioning of Senior Constable Lam, the officer in charge, about any such intelligence and, furthermore, when Mr Kostovski was called there was no evidence from him to suggest that he may have provided information to the police antecedent to the execution of the search warrant.

34. What has been submitted by Mr Angelov on behalf of the appellant is merely that there might be some evidence or intelligence that the police had which might indicate some information being conveyed by Mr Velko Kostovski to the police about the activities of the appellant. This is mere speculation. There is no evidentiary foundation for even raising such a suspicion. Furthermore, it would appear to be implausible in any event. When Velko gave evidence he told the Court that he had recently completed two and a half years of a parole period following upon the imposition of a custodial sentence. When his father died he was incarcerated. The witness was never asked what was the nature of the offence which he committed and if he had committed a crime of dishonesty that would be directly referable to his credit and he could be questioned about that. However, he was not questioned about why he was in custody or why he had been on parole.

35. However, the idea that the Police would be relying on a felon to provide information has never been adequately argued before me or, indeed, in the Local Court and is inconsistent with there being, on any view of it, a good relationship between Mr Kostovski and the appellant, between their families prior to the allegation being raised by the appellant at some stage that the drop saw in question had been lent to him by Velko. Again, I refer back to the evidence given by the appellant’s wife, Vera Risteska, that he had come over to help repair the door that had been damaged when the police executed the search warrant. It is common ground, although it did not appear to be perceived initially by the Police Prosecutor, that there had been a good relationship between the Kostovski family and the appellant’s family at all times prior to the appellant’s arrest after the execution of the search warrant.

36. Accordingly, I uphold the ruling of the learned Magistrate that the Crown was permitted to call this evidence in reply, firstly, because it was both unforeseen and unforeseeable and, secondly, because it did not amount to the Police splitting their case because the Police did not need to prove the non-possession of the stolen property by any person prior to its being found in the possession of the appellant. As I said, it would be another matter if the matter had been fairly raised by the appellant himself, either with Senior Constable Packer or in the electronically recorded interview or, indeed, if the appellant’s counsel had raised the matter with the officer in charge when he was giving evidence in the Local Court.

28. It now being 1.20 I’ll take the morning tea adjournment and then the luncheon adjournment. 2.15pm.

ADJOURNMENT

38. Before I leave the question of the case called by the Crown in rebuttal I should indicate that at no stage did the defence call for either the search warrant or the application for the search warrant or issue a subpoena for its production or serve the notice to produce. The Crown may have claimed privilege in respect of, for example, the application for the search warrant because it might disclose intelligence from informers used by the Crown. If the Crown claimed such privilege it would be open to argument. During the course of this appeal I discussed with counsel a question of the search warrant material being made available to the Court so that the Court could peruse it to see if there was any information available to suggest that the Crown had had dealings with Mr Velko Kostovski concerning the present matter. However, this morning a solicitor from the Crown Solicitor’s Office appeared for the Commissioner of Police and indicated to me that if the Court called for such documents he would need time to take instructions in order to make any claim for public interest immunity. Suffice to say that despite the discussion over the last two days there was never any call by the appellant for the production of such material and it was only after the solicitor from the Crown Solicitor’s Office had been excused that Mr Angelov for the appellant made an application for a short adjournment to obtain instructions in that regard but I refused such an application because Mr Angelov closed his at 4.45 yesterday afternoon. In other words, not only did the defence have no evidentiary basis for making a submission that there might be evidence available to the Police of prior dealings between the Police and Velko Kostovski referrable to the appellant but also the defence made no application at all to obtain any such evidence.

Credibility

39. The next ground of appeal was the submission that the Court could not be satisfied beyond reasonable doubt that the appellant had received stolen goods, namely the stolen drop saw. However, in that regard it is important to note that certain findings were made by the learned Magistrate.

40. As far as Velko is concerned the learned Magistrate said this at p 42 of the transcript of 4 November 2016 commencing at line 26:

“So Mr Kostovski was absolutely believable when he says that it was not he that delivered this saw. He had never seen it before, that was not his father’s saw, he had never delivered any other kind of drop saw to Mr Trajovski’s place. He says that when his father died he sold his father’s tools to a market. Mr Trajkovski says that he knew that Mr Kostovski sold his father’s tools through eBay. The evidence is clear that the tools were sold, whether it was a market or eBay, none of the witnesses were cross-examined on that point, but he [Kostovski] says, ‘I sold my father’s tools’.”

At p 46 line 19 her Honour said this:

“Mr Kostovski was very, very firm. He impressed as an honest and open witness, despite his criminal past.”

The magistrate has had the advantage of seeing the witnesses and hearing them give their evidence. She has seen Mr Kostovski give his evidence-in-chief when called by the police prosecutor and seen him cross-examined by learned counsel for the appellant, Mr Angelov. Although I can make findings of fact for myself, I must take into account the advantage enjoyed by the learned Magistrate who saw and heard the witnesses called in her Court. I am entitled to consider the reasons of the magistrate including the resolution of issues of credibility based upon their evidence. The authority for that proposition is Charara v R [2006] 164 A Crim R 39; [2006] NSWCCA 244. In fact, it would be completely erroneous for me to ignore such findings made by the magistrate who, as I said, heard and saw the witnesses and was able to observe their demeanour and their responses to questioning. It was submitted to me by Mr Angelov that Mr Velko Kostovski was a truculent witness. However, I am no position to make such a finding and certainly such a finding would be completely inconsistent with the learned Magistrate’s finding, who actually heard him and saw him. I, therefore, accept that what he said was accurate and reliable because so held the learned Magistrate after seeing and hearing him and accepted him to be a witness of truth.

41. Likewise the learned Magistrate made a finding as to the reliability of the evidence of the appellant’s wife Vera Risteska. Commencing at the foot of p 45 of the transcript of 4 November 2016 at line 46 her Honour said this:

“So here is a drop saw that Mrs Risteska in her evidence at first says, ‘It was there until the police came’, and then she corrected that by saying, ‘No, it was then put in the garage, because it was in the garage when the police came’.”

That correction was given on the second day that she gave evidence, 4 November 2016. The first part of her evidence which I quoted earlier was given on 2 August 2016. Her Honour then continued thus:

“That contradiction would have to dilute her evidence. Her other evidence in relation to this drop saw was, I do not accept it, that she had dealt with this drop saw to the point where she was moving it frequently when she had to clean in the lounge room. She knew that it had a picture or a label on it, and when she was shown exhibit 3 she identified the police exhibit sticker as being the label that she was talking about.

Then when she was re-examined by Mr Angelov she identified what appears to be an awkwardly positioned ID plate on the item, that would not have been readily obvious to her. I do not accept her evidence, it is not reliable. She may be believing certain things because that is the conversation that she may have had with her husband, although she was not asked specifically about that, I’m not saying there is a fault in there, but her evidence is just not reliable.”

Again I cannot discount the advantage that the learned Magistrate had of seeing and hearing this lady give her evidence. She clearly did not believe that the evidence of Ms Vera Risteska was reliable.

42. Then to support the appellant’s case is the evidence of the appellant himself and the evidence of Mr Pribetic, a close friend for a large number of years, a regular visitor to the appellant’s home, a witness who, one may think, might be partial to the appellant.

43. It is patently clear, furthermore, that the learned Magistrate did not accept the evidence of the appellant either. I have quoted what he said to Senior Constable Packer at the time of the execution of the search warrant when the drop saw was found. I have also quoted the evidence of the appellant given in the ERISP. When cross-examined the appellant agreed that the answers contained in the electronically recorded interview were not the truth. That answer can be found on p 26 of the transcript of 2 August 2016 at line 35. The cross-examiner then put to the accused that he was lying in the electronically recorded interview but the appellant said he was not lying but he did not know how he came to give those answers. To believe the story that the appellant wished the Court to accept in his sworn evidence, one would have to determine that the appellant was not telling the truth either to Senior Constable Packer at the time of the finding of the drop saw or in the electronically recorded interview. The appellant said in his evidence that he had been drinking heavily that day or evening and that when he was talking with the police he was “drunk and confused and in shock”. That answer is recorded in the transcript of 2 August 2016 at p 30 line 17. The appellant in chief said that he had drunk alcohol all day and was under the influence of alcohol at the time of the execution of the search warrant. He said that on that day he had drunk a whole bottle of Scotch and 12 bottles of a box of 24 bottles of beer, the size of the bottles was not identified but I assume they were stubbies and the appellant also said that during the execution of the search warrant he consumed “at least five beers”. That evidence was volunteered in cross-examination on 2 August 2016 and is recorded on p 21 of the transcript of that day at line 21.

44. However the Magistrate said this on that issue:

“I will not go into all of the alcohol that he says he consumed, but he speaks of drinking Scotch and beers, an extraordinary amount of alcohol, and he said that that affected him greatly. When you look at his demeanour and his responsiveness in the DVDs, he does not impress as someone who is intoxicated to the degree he says he was, where it would have impacted on the way the police were dealing with him. His answers to the questions were responsive.

There is no evidence of him stumbling or slurring. It is very clear that English was not his first language, but he was understanding and being understood. I do not accept from him that he was so intoxicated that any response he made to the police inquiries should be diminished as a result of his intoxication.”

Her Honour watches some DVDs. The DVDs that her Honour was referring to were the DVDs of the execution of the search warrant. That is referred to in the paragraph of her judgment commencing at line 38 on p 39 of the transcript of 4 November 2016. One would think he would have been more affected by alcohol at the time of the execution of the search warrant than he was two hours later when he was interviewed by police in the ERISP. As I have earlier mentioned the ERISP is responsive and there is no suggestion that the appellant did not understand the questions or that he was not giving responsive answers. The Magistrate had the advantage of watching the DVDs of the execution of the search warrant. I have not. Counsel did not ask me to look at them. I therefore have to rely upon what the learned Magistrate says as to what they show. However it is clear that her Honour did not believe that the appellant was so intoxicated that he knew not what he did or that he was confused or that he was suffering from some form of “shock” which made him somewhat “catatonic”. He may have been surprised, he may have been upset, but such things do not normally cause people to tell untruths unless they wish to hide something that might adversely affect them.

45. The fact that the learned Magistrate accepted the evidence of Velko clearly indicates her rejection of the contrary evidence from the appellant and his witness, Mr Pribetic, and it is clear from what I just said about the protestations of the appellant about his state of insobriety that she did not accept him in that regard and that must have a part to play in her assessment of the reliability and credibility of the appellant’s evidence. Her Honour clearly did not accept that the appellant borrowed the Makita drop saw from Velko or that Velko had lent it to him. The drop saw was found in the appellant’s possession two months and ten days after it was stolen. He agreed that the explanation that he gave to Senior Constable Packer and in the ERISP was incorrect, that he had not purchased the drop saw at some long time in the past and paid for it.

46. It was accepted on his behalf at the hearing in the Local Court that the drop saw did belong to Mr Baxter and had been stolen from the construction site at Huntley Street, Alexandria. In those circumstances the Court was entitled to take into account the offender’s possession of the drop saw as evidence of his knowing that the drop saw was stolen property, his giving no plausible, rational or credible explanation for how it came to be in his possession.

The cans of paint charge

47. The next ground of appeal related to the paint that was seized by the police at the time of the execution of the search warrant. The paint was eight 15 litre cans of Dulux Weathershield. The paint was low sheen. There were no labels attached to any of the cans of paint. Evidence was given by Serafim De Sousa. Mr De Sousa was at the time of giving evidence a painting contractor. He had been a painter for 40 years. On 21 August 2014 he was working at the construction site at Huntley Street, Alexandria, although he referred to it as “Hunter” Street. For that job he had purchased twelve “drums” by which he meant 15 litre tins of Dulux Weathershield low sheen, the colour being Lexicon Half, that is, if I may be permitted to so describe it, a shade of white. Much evidence has been given about how such a colour is made. The evidence suggests that most paint comes as a colour called probably natural white. Tints are then mixed with the paint. Five 1 millilitre drops of black paint makes a colour called M5. Seven and a half 1 millilitre drops of black mixed with natural white makes Lexicon Half. I assume that if one wishes to make full Lexicon one mixes in fifteen 1 millilitre drops of black paint. According to Mr De Sousa each 15 litre tin of paint costs about $180.

48. This evidence was then given by Mr De Sousa.

“Q. Can you tell the Court what happened on 22 August 2014?

A. 26 August, just one of my painters rang me early in the morning, say they didn’t have any paint to work with.

Q. Then what happened?

A. I had to go and get some more paint so that my workers can, can keep working.

Q. Where was the paint that you had brought [sic]? Where were the twelve cans of 15 litre...

A. They’re, they’re gone.

Q. Did you see those cans of paint again?

A. I saw - I don’t know if it’s the same but something similar to it, or exactly the same colour, on the police station, they call me to check it.”

One will see that the Police Prosecutor directed Mr De Sousa’s attention to 22 August and that he answered with reference to 26 August. However as the case has been argued both in the Local Court and in this Court there is no dispute that the paint went missing in the night of 21 to 22 August 2014 and hence the phone call made to Mr De Sousa by an employed painter that there was no paint with which to work so he had to go to purchase more. Mr De Sousa went on to say in evidence that on 3 January 2015 he attended the police station and ascertained that the paint was the same colour as the paint that had been stolen, Lexicon Half. The witness said that he went to the Dulux paint store in Chippendale and bought a 250 millilitre tin of Lexicon Half and that the paint in that tin was “exactly the same colour” in “every single drum”. He said that the paint was then returned to him by the police. He went on to say that he used one of those 15 litre tins of paint to finish his job at the Alexandria construction site to “do touching ups.”

49. The witness said in cross-examination that the way he ascertained that the eight 15 litre tins of paint in police possession had the same colour as his stolen paint was by opening each tin and dropping some of the paint from the sample that he had purchased at Chippendale into each tin and that was his way of ascertaining that the colour was exactly the same. He gave this evidence.

“You can’t be certain that the colour in the eight tins is Lexicon Half, can you?

A. I can, I can, because I went there, buy a 250 mil pot, pot sample with Lexicon Half and when it dropped Lexicon paint on top of paint you can see the difference.”

Later in cross-examination he conceded that he could not be 100% certain, but he was 80% certain. He agreed that he could not say that certainly the paint in the possession of the police was his paint because any 15 litre tin of Lexicon Half made by Dulux would look exactly the same. He went on to say that they were identical to the tins that had been taken from the construction site, but that does not mean that they were the same. Identical twins are identical twins, but they are not the same person, they are two separate persons even though they may look exactly the same.

50. The question then arises is what other evidence linked these eight-litre tins of Dulux Weathershield Low Sheen Lexicon Half to the construction site from which they were stolen. Here the Police’s argument is that to suggest that such a large amount of paint of that colour, stolen from a construction site at the same time as the drop saw was stolen from the construction site, being found in the accused’s possession, when he was found in possession of the drop saw, would be so fortuitous as to be not only be implausible, but unbelievable. This was referred to as being a coincidence because this evidence was referred to as coincidence evidence.

Coincidence evidence?

51. The argument advanced by the appellant is that the evidence was not admissible because no notice had been served as required by the Evidence Act 1995 s 98(1)(a). Section 98 bears a heading, “The coincidence rule”. Sub section (1) is in these terms:

“Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b) the Court things that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

The learned Magistrate ruled that no such notice was required because there were no “2 or more events occurred” in that there was only one breaking and entering at the construction site at Alexandria.

52. The Police case was postulated on the basis that the paint and the drop saw and other tools owned by Mr Baxter were stolen from the construction site in Huntley Street, Alexandria, on the same evening, that is, between 21 and 22 August 2014. The defence submits that there is no evidence that they were stolen by the same offenders and that there may have been a number of persons who, not in concert with each other, entered the construction site and stole various items. I am afraid that I approach this case as I approach many cases, by applying Ockham’s razor. Why would one postulate more than one event, to explain one event? The likelihood, the probability is that those who stole the drop saw and other items, belonging to Mr Baxter, also stole the paint. It is clear that a lot more was taken from Mr Baxter than the drop saw found in the possession of the appellant. I agree with the learned Magistrate, that really there was only one theft from the construction site, meaning one asportation. Bearing in mind what was taken from Mr Baxter’s toolbox and what was taken from the painter, it is likely that some truck or utility was taken to the site and what was taken from the construction site was loaded into such a vehicle.

53. The matter is analogous to a break and entry into a dwelling house where a number of different items may be taken, such as jewellery, wallets, cash, cameras, computers, where the house was searched for valuable items and valuable items taken. There was only one breaking, entering and stealing even though a large number of items may have been stolen.

54. The submission of the appellant ignores legal history. At common law, there was no coincidence rule nor any tendency rule but there was similar fact evidence. Part 3.6 of the Evidence Act, which concerns tendency evidence and coincidence evidence, replaces the common law relating to similar fact evidence. The officers of the Australian Law Reform Commission who drafted the original Evidence Bill, broke similar fact evidence into two principles. The principle concerning the tendency of a person to do things in a certain way, evidence of conduct, character or reputation, and also into the coincidence rule where evidence of two or more events of the same nature, or similar nature, may be admitted. One need only consider the examples offered by Mr Odgers in the 12th edition of his work, Uniform Evidence Law, in [EA.98.60]. The examples given are these:

“Examples of such improbability, or coincidence, reasoning which turns on similarities in events or the circumstances in which they happen may be given:

• If evidence is adduced that three young girls had been killed in strikingly similar circumstances and it was improbable that the killings would have been the acts of different persons, proof that the defendant had killed two of the young girls, makes it highly probable that he had killed the third (see ALRC 102 at para 11.4).

• Striking similarities between two incidents in which the defendant was involved (the first involving some uncertainty as to what transpired; the second being uncertain only in respect of the defendant’s mental state) may permit inferences as to what precisely happened during the first incident and the state of mind of the offender in the second.

• Similarities in the conduct of a defendant on different occasions, may reveal a pattern from which it may be inferred via coincidence reasoning that the defendant did a particular act or had a particular state of mind.

• Where a number of persons have been poisoned and the victims have all been associated with a particular person, the evidence of the other poisonings may support the inference that the person was responsible for the death in issue, because it would be contrary to ordinary experience that a series of poisonings, caused by accident or suicide, would occur by coincidence in the circle of persons with whom the person was associated.

• Similarities in the accounts of two or more witnesses regarding the conduct of the defendant may make it improbably that the witnesses are telling lies, in the absence of a joint concoction or contamination (while the evidence is relevant to the credibility of the witnesses, it is not ‘relevant only because it relates to the credibility of a witness’: section 94(1)).

• Similarities in stab wounds inflicted on three victims, said to show a pattern (from which it might be inferred that one person was responsible for all of the wounds).”

The footnotes on p 693 of Mr Odgers’ work provide the authorities used to provide the last five similarities there described. I do not need to cite those authorities in this judgment. We are not here dealing with two separate asportations, but one. Material was gathered at the construction site and taken by some offender or offenders and two parts of the stolen material found their way, according to the Crown case, into the appellant’s possession.

55. However, it is still possible that the offender did have in his possession eight 15 litre tins of Dulux Weathershield Low Sheen Lexicon Half. Some evidence in that regard has been given by the appellant. Paragraph 9 of the statement of Senior Constable Packer, exhibit 8, says this:

“About 12.59am Constable Churchill located eight large 15 litre paint tins believed to be stolen within the rear garage area.

I said - ‘Mr Trajovski, I’m just going to ask you some further questions in relation to this paint here. You don’t have to say or do anything. I’ll record what you say or do and the recording can be used in Court, do you understand that?’ ‘Basically, I just cautioned you that you don’t have to say or do anything if you don’t want to. I’m just going to ask you some further questions about this paint here.’

The Accused said - ‘This paint I’ve been working 20 years for this paint’.

I said - ‘You’ve worked as a painter for 20 years?’

The Accused said - ‘Yeah’.

I said - ‘Where did you get this paint?’

The Accused said ‘I buy it from shop’.

I said ‘What shop did you buy it from?’

The Accused said - ‘I don’t know it’s from Rockdale, from everywhere’.

I said, ‘In particular the large cans the Dulux Weathershield where did you get those 15 litre cans of Weathershield from?’

The Accused said ‘It’s from a long time ago’.

I said, ‘A long time ago you bought it?’

The Accused said ‘Yeah’.

I said do you know where you bought it from?’

The Accused said ‘I don’t know’.

I said ‘How much did you pay for the cans?’

The Accused said, ‘I don’t know’.

I said - ‘Have you used the cans?’

The Accused said - ‘Yeah, of course I have’.

I said ‘But you can’t remember where you bought it from’.

The Accused said ‘It’s paint I buy all the time’.

I said ‘Where did you buy it from?’

The Accused said, ‘From shop’.

I said ‘Can you tell me which shop, Mr Trajovski?’

The Accused said, ‘Everywhere, shop is everywhere’.

I said ‘In particular where did you go?’

The Accused said ‘It’s 20 years I keep this one all the time’.

I said, ‘I’m talking about these Dulux tins, when did you acquire them, when did you buy them? Where did you buy them?’

The Accused said ‘I buy from shop’.”

Again, that conversation is corroborated by Senior Constable Lam in his statement.

56. In the electronically-recorded interview this was said:

“Q.105 What can you tell me about the paint that we found in your garage?

A. It’s my paint.

Q.106 Your paint. Can you tell me roughly how long you’ve had it for, where you bought it from?

A. I don’t know, just, I paid for it.

Q.107 You paid for it?

A. I buy it from Chipping Norton.

Q.108 Chipping Norton? Did you buy all of them from Chipping Norton or did you buy them separately elsewhere?

A. Yeah.

Q.109 So different place?

A. No.

Q.110 Just Chipping Norton?

A. (No audible reply)

Q.111 Do you remember what the shop is called in Chipping Norton?

A. (No audible reply)

Q.112 Do you remember whereabouts in Chipping Norton?

A. No. I don’t know....I don’t know.

Q.113 Was it a long time ago?

A. I don’t know what time.

Q.114 How much is one of those tins worth?

A. I don’t know.”

The accused then asked for a toilet break which was afforded to him. There is no further relevant statement by the appellant as to the paint in question.

57. One will note the discrepancy between what the appellant told Senior Constable Packer and what he said in the ERISP. He told Senior Constable Packer that he bought some of the paint at Rockdale and some of the paint from other places. Then in the ERISP he said he bought the paint at only one place, an unidentified shop in Chipping Norton. He was unable to say when he bought the paint, who the seller of the paint was or how much it cost.

58. The evidence that the appellant gave was different. In chief he said that the tins of paint that the police took into their possession was paint that he had purchased with a workmate who was Greek and whose name was Manory. They were painting a house at Liverpool when a new customer asked them to paint the exterior of a small factory. He and Manory agreed to do so. They were due to start doing the job at the small factory for this new customer on a Saturday. He said that this new job was to commence “about three months or so before the police came” meaning about three months prior to the 30 October 2014. Unfortunately the painting job for the new customer of the small factory fell through because the customer obtained a cheaper quotation for the job from someone else. In the meantime the appellant and Manory bought paint that the appellant described as M5, a shade of white. The appellant said that he and Manory paid cash for the paint in question and obtained it at a discounted price of $1,500. The appellant said this:

“We paid cash but we - we got to Chris Kosaki’s(?) account - he’s one of the biggest - he’s the biggest user of paint - in this state and we used a huge discount to his account and paid cash for them.”

By that I understand that he was saying that he bought the paint on Mr Kosaki’s account thereby obtaining a large discount but because he was not Mr Kosaki he paid for the paint in cash. He went on to say that, when the paint was not used for the job that fell through, he paid $750 to Manory to reimburse him for his purchase of the paint and therefore the appellant himself became the beneficial owner of all the paint in question. The number of tins of paint purchased by the appellant was ten. That is contained in a question put to him by his own counsel at p 56 of the transcript of 10 May 2016 at line 5. I therefore proceed on the basis that the offender bought ten 15 litre tins of Dulux Weathershield M5.

59. As was pointed out by the learned Magistrate neither the appellant’s work colleague, the Greek Manory, or Mr Chris Kosaki was called nor was their absence explained. However, the appellant had no onus of proof. However, there is another problem with the appellant’s evidence concerning this paint.

60. Before I go to that, however, I should point out that in cross-examination on 2 August 2016 the appellant was asked whether he maintained that he bought the paint in question from a shop in Chipping Norton. The answer given is this:

“Chipping Norton and from other John, ..(not transcribable).. this contract with the Greek guys. I think ..(not transcribable).. were completely white and the other M5.”

From what I am about to say it appears that the second “..(not transcribable)..” was a reference to some of the paint being completely white and some of the paint being M5 in colour. However, here I point out the difference between what the offender told Senior Constable Packer and what he said differently in the ERISP, and now there is a third version that some of the paint was purchased at Chipping Norton and some from someone else, a person named John whose name is not transcribed in the transcript.

61. However, what I have just quoted ties in with evidence given by the appellant that two of the cans taken by the police were unmixed or natural white. At the foot of p 36 of the transcript of 2 August 2016 this question begins:

“Q. Sir, what are you saying? You bought two that were completely white and two already M5?

A. Those the police removed. That was mixed. I think two of them were completely white; no mix at all, what the..

Q. Out of the two that police took, they were still completely white, you hadn’t put anything in them?

A. WITNESS: I don’t know how many police who take it. I think five, six. I’m not sure how many drum take the police and I’m one hundred per cent sure for this..

A. INTERPRETER: Among those five or six the police have removed, two of those cans were completely white.

Q. The police took eight cans?

A. WITNESS: I don’t know how many cans you took police ..(not transcribable).. took too many cans.

A. INTERPRETER: I think they removed a lot of these cans; I don’t know now many, but there were ..(not transcribable).. on the window, you can see them. They are like four cans on different colours. 40 cans.

Q. Just to understand your evidence, you’re now saying that two of the cans you’d never opened and they were still just plain white?

A. Yes, ..(not transcribable).. they were completely white and those two were removed by the police as well.

Q. You’d agree with me that completely white and Lexicon Half are very different colours?

A. INTERPRETER: Yes.

A. WITNESS: Pure white is pure white.

A. INTERPRETER: It’s white, it’s like, white.

Q. But there is a difference between Lexicon Half and pure white?

A. WITNESS: Of course.

Q. A noticeable difference?

A. INTERPRETER: ..(not transcribable)..”

62. Mr Angelov submitted to me that the appellant in giving that evidence was confused, but I read nothing confusing in the evidence as transcribed. It is clear that the witness was unsure as to how many cans of paint the police had taken. We know that there were eight cans. However, he was quite clear that two of the cans taken by the police were of untinted pure or natural white paint. The problem with this evidence is that it is inconsistent with the evidence of Mr De Sousa who opened each of the cans and ascertained that each contained Lexicon Half paint rather than only six of them containing Lexicon Half paint and two of them containing natural white paint. Furthermore, Mr De Sousa was not cross-examined to the effect that two of them were only white. This indicates that this area of the appellant’s evidence was the subject of recent invention.

63. The Crown must prove beyond reasonable doubt that the paint that was found in the possession of the appellant was paint that had been paint stolen from this construction site and that the accused knew that it was stolen. I am confident, as was the learned Magistrate, that the offender was in possession of Mr Baxter’s drop saw and that by applying the doctrine of recent possession he knew it was stolen. He provided no plausible other reason for having it in his possession. We know that from the same construction site 12 cans were taken of paint belonging to Mr De Sousa, all of Lexicon Half. Found at the appellant’s residence were eight cans, all of Lexicon Half. The appellant’s sworn evidence is untrue in that two of them were not pure or natural white, untinted. All of them were Lexicon Half. Possible sources of evidence to corroborate the evidence of the appellant since he undertook to try to establish that they were not stolen were not called, that is the Greek workmate Manory and perhaps the man on whose account the paint was purchased.

64. The appellant appeared to remember in August 2016 things that he could not remember in October 2014, which must throw doubt on the reliability and integrity of the explanations that he did or did not give to the police both at the time of the execution of the search warrant and a few hours later in the electronically recorded interview. These inconsistent explanations are consistent with a consciousness of guilt.

65. It is completely implausible to postulate, when the appellant was in possession of a stolen drop saw, that he had paint of the same colour stolen with the drop saw in his possession in a very large quantity. That implausibility in my view, and the inability of the appellant to provide any plausible explanation for why he had the paint, other than he was a painter, in my view establishes the fact that this paint was the paint taken from the same construction site from which the drop saw had been stolen.

66. In summary, therefore, there was no need for the Crown to serve any coincidence notice because this was not coincidence evidence as such. Furthermore, I am persuaded, as was the learned Magistrate, that this was part of the paint taken from the construction site at Huntley Street, Alexandria, belonging to Mr Serafim De Sousa that was stolen overnight between 21 and 22 August 2014 and that the offender was in possession of it at the time of the execution of the search warrant.

67. I have enquired of the parties if any further reasons for judgement are required, I am told that none is so required. For those reasons the appeal is dismissed.

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Decision last updated: 16 May 2018