Williams v Power
[2016] ACTSC 293
•6 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Williams v Power |
Citation: | [2016] ACTSC 293 |
Hearing Date: | 25 May 2016 |
DecisionDate: | 6 October 2016 |
Before: | Burns J |
Decision: | The appeals are dismissed and the convictions and sentences of the Magistrate are confirmed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – proprety offences – burglary and theft – doctrine of recent possession – appeals dismissed. |
Cases Cited: | Connelly v Allan [2011] ACTSC 170 Gilson v The Queen [1991] HCA 24; 172 CLR 353 Trainer v The King [1906] HCA 50; 4 CLR 126 |
Parties: | Thomas Williams (Appellant) David Power (First Respondent) Andrew McCoola (Second Respondent) |
Representation: | Counsel Mr J Lawton (Appellant) Ms A Jamieson-Williams (First and Second Respondents) |
| Solicitors Aboriginal Legal Services NSW/ACT (Appellant) ACT Director of Public Prosecutions (First and Second Respondents) | |
File Number: | SCA 78 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Special Magistrate Hunter Date of Decision: 24 August 2015; 14 December 2015 Case Title: Power v Williams Court File Numbers: CC No 4205 of 2014 |
BURNS J:
On 25 August 2015, the appellant was convicted by a Magistrate of the following offences which, for convenience, I will refer to by their Magistrate Court reference numbers:
(a)a burglary on 1 November 2014 at residential premises in White Crescent Campbell, being charge CC2014/11097;
(b)theft of property to the value of $1,400.00, the property of JT, taken from the premises in White Crescent during the burglary, being charge CC2014/11098;
(c)theft of property to the value of $100.00, the property of DU, also taken during the course of the burglary in White Crescent, being charge CC2014/11099;
(d)a burglary on 12 November 2014 at Rivett St Hackett, being charge CC2014/11397; and
(e)theft of property of value unknown belonging to GL taken during the burglary at Hackett, being charge CC2014/11398.
On 14 December 2015, the Magistrate sentenced the appellant as follows:
(a)for the offence of burglary (CC2014/11097), he was convicted and sentenced to 12 months imprisonment;
(b)for the associated offence of theft of property belonging to JT, (CC2014/11098), he was convicted and sentenced to 6 months imprisonment, of which 3 months was cumulative upon the sentence for burglary (CC2014/11097);
(c)for the second associated offence of theft of property belonging to DU, (CC2014/11099), he was convicted and sentenced to 6 months imprisonment to be served concurrently with the sentence imposed on the charge of burglary (CC2014/11097);
(d)for the offence of burglary (CC2014/11397), he was convicted and sentenced to 12 months imprisonment; and
(e)for the associated offence of theft (CC2014/11398), he was convicted and sentenced to 6 months imprisonment, of which 2 months was cumulative upon the sentence for burglary (CC2014/11397).
By an Amended Notice of Appeal lodged on 4 May 2016 the appellant appealed from the convictions and sentences imposed by the Magistrate for these offences. In total, the appellant was convicted and sentenced by the Magistrate with respect to 20 offences, with an aggregate sentence of 27 months and 25 days commencing on 5 March 2015 and expiring on 28 June 2017, but his appeal was restricted to the convictions and sentences imposed for the five offences set out above. The grounds of appeal were:
(a)with regards to the conviction appeals, the verdicts are unsafe and unsatisfactory; and
(b)with regards to the sentences imposed, they are manifestly excessive.
There is a further complicating circumstance raised by the appellant on the hearing of the appeal that the Magistrate had not provided him with an opportunity to make submissions before convicting him. During the hearing of the appeal the appellant sought leave to amend his Notice of Appeal to include a ground alleging a failure by the Magistrate to accord him procedural fairness. This was objected to by the respondent, but I indicated that I would deal with the issue in my written reasons. I am satisfied that leave should be granted, but, for the reasons which I will give, I am satisfied that this apparent failure by the Magistrate ought not to affect the outcome of these appeals.
These appeals came on before me on 25 May 2016, at which time I dismissed the appeals regarding the charges of burglary (CC2014/11097), theft (CC2014/11098) and theft (CC2014/11099). I reserved my decision with regards to the remaining charges of burglary (CC2014/11397) and theft (CC2014/11398). At the hearing of the appeals the appellant abandoned his appeals against the sentences imposed by the Magistrate.
The nature of the present appeals
The present appeals against conviction are rehearings based upon the evidence which was before the Magistrate. As Refshauge J observed in Connelly v Allan [2011] ACTSC 170, in hearing such an appeal I must determine whether the decision of the Magistrates Court was wrong, by that court falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Error on the part of the Magistrates Court must be established: Slipper v Turner [2015] ACTSC 27.
Recent possession of stolen goods
The prosecution case against the appellant in the Magistrates Court was based upon inferences which it submitted should be drawn from the fact that the appellant was found to be in possession of items stolen in the course of the burglaries shortly after those burglaries occurred. The so-called doctrine of recent possession was explained by Griffith CJ in Trainer v The King [1906] HCA 50; 4 CLR 126 at 132:
It is a well known rule that recent possession of stolen property is evidence, either that the person in possession of it stole property, or received it knowing it to have been stolen, according to the circumstances of the case. Prima facie, the presumption is that he stole it himself, but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it, knowing that someone else had stolen it. This is only an illustration of the rule as to circumstantial evidence.
The reference to a presumption in the above quotation should not be taken to suggest that some onus falls on the accused where he or she is found to be in possession of recently stolen property. Evidence of possession of recently stolen property is “merely circumstantial evidence which is capable of supporting an inference of either larceny or receiving according to all the circumstances of the case but it raises no presumption of guilt and the jury are bound to acquit if, on the whole of the evidence, they entertain a reasonable doubt”: Gilson v The Queen [1991] HCA 24; 172 CLR 353 per Brennan J.
Whether the possession of stolen goods is sufficiently recent to justify the making of an inference that the person in possession was the thief is a question of fact, to be determined by the tribunal of fact. In R v Smale (Unreported, New South Wales Court of Criminal Appeal, Lee, Maxwell and McInerney JJ, 15 August 1986) Lee J said:
[I]n most of the cases that are likely to come before the courts, it will be appropriate to let the question of “recency” go to the jury because it is not a word of any precise significance so far as time is concerned, and it can legitimately mean different things to different people. The jury should therefore rule upon it, not the judge. It is certainly not to be understood as importing the notion of “very recently” except where the nature of the property requires that view.
Consideration
The proceedings before the Magistrate took an unusual course. The prosecution, with the acquiescence of the appellant, tendered its brief of evidence. No witnesses were called, and, of course, there was no cross-examination. The parties accepted that the facts were not in issue, and were to be found in the witness statements which formed the prosecution brief of evidence. The Magistrate left the bench to read the statements and other material within the brief. Through some misunderstanding, the Magistrate did not appreciate that the appellant anticipated making submissions to her upon her return to the bench. When she returned she simply gave her decision and reasons. In these proceedings, the facts were helpfully summarised by the respondent in its written submissions. The appellant did not suggest that the summary was inaccurate, and accordingly I will rely principally on the summary of the evidence provided by the respondent.
With regard to the charge of burglary at White Crescent Campbell (CC2014/11097) and the associated theft charges (CC2014/11098 and CC2014/11099) the evidence revealed that at some time between 10.00 pm and 11.07 pm on 1 November 2014 a person entered the subject premises through a sliding glass door at the side of the premises. That person entered the house and stole a quantity of property belonging to JT and DU, who were both residents of the premises. At about 11.07 pm, just over one hour after the earliest time that the burglary could have occurred, the appellant used a credit card belonging to DU which had been taken in the burglary to purchase items at a service station in Braddon. He used this credit card to make six more transactions between 11.07 pm on 1 November 2014 and 12.20 am on 2 November 2014.
The prosecution case against the appellant with respect to these charges was based upon recent possession. The prosecution case established, and was accepted by the appellant as establishing, that he was the person who used the credit card belonging to DU to make the transactions very shortly after the burglary occurred. The appellant did not give evidence in the proceedings in the Magistrates Court, but relied upon exculpatory statements made by him to police in a recorded interview in which he told police that he had found the credit card in the back seat of a car in which he was travelling that evening. The appellant made statements in the course of that interview about his movements on the evening of 1 November 2014 which were contradicted by other evidence. The explanation given by the appellant for his possession of the credit card belonging to DU was highly improbable. The Magistrate was entitled to reject the version of events given by the appellant to police, as she clearly did. The accepted evidence of the appellant using the credit card, which was part of the proceeds of the burglary, so soon after the burglary occurred was compelling evidence that the appellant was the person who committed the offences of burglary and theft. For that reason, I dismissed the appeals by the appellant with respect to those charges.
The prosecution evidence against the appellant with regard to the charges of burglary and theft at Rivett Street Hackett was not quite as clear. The occupant of the premises, GL, provided police with a statement to the effect that at about 4.30 pm on Monday, 10 November 2014 he attended those premises and spent the night at that address. His statement does not indicate when he went to bed that night. He stated that he believed that he left a set of house keys and his brown Tommy Hilfiger wallet on the kitchen bench. In the wallet were a number of items including credit cards, club membership cards and a drivers licence in his name. At about 3.00 pm on Tuesday, 11 November 2014 he left the Rivett Street address, returning at about 5.00 pm that day. He again spent the night at the house. During the night he heard his dogs barking. The next morning, Wednesday, 12 November 2014, he noticed that the keys to the house were missing from the bench. At that time he thought that he had left them in his car. At about 11.30 am that day he left the house, leaving the front veranda door unlocked. At about 1.45 pm that day police advised GL that they were in possession of some of his credit cards, and asked where his wallet was. It was only at that point that GL realised that his wallet was missing.
The prosecution case established, and was accepted by the appellant as establishing, that at about 3.54 am on 12 November 2014 the appellant used one of GL’s credit cards to purchase items in Dickson. Further transactions involving the purchase of items by the appellant using that credit card occurred between 3:55 am and 4:12 am that morning. All of those transactions were recorded on CCTV.
At about 12.45 pm on 12 November 2014 police executed a search warrant at the appellant’s home in Hackett. The police located GL’s wallet and two credit cards belonging to GL in the appellant’s home. The appellant lied to police about the wallet, claiming it was his. He told police that he had never seen the credit cards before. Police also located items purchased by the appellant using the credit cards of GL, as well as GL’s keys.
The appellant did not participate in a recorded interview with police about these alleged offences, and did not give evidence in the proceedings in the Magistrates Court. The prosecution case against the appellant was again based upon recent possession. The prosecution evidence established that by 3.54 am on 12 November 2014 the appellant was in possession of at least part of the proceeds of the burglary. With regard to these offences, however, it is not clear from the statement of GL when the burglary occurred. The statement provided to police by GL is not clear in a number of important respects. The statement provides that GL left his house keys and wallet on the kitchen bench at the Rivett Street premises at about 4.30 pm on Monday, 10 November 2014. Whilst GL left the premises at about 3.00 pm on Tuesday, 11 November 2014, his statement does not make it clear whether he took his wallet and keys with him at that time. There is no further mention of his wallet and keys in the statement until he says that he noticed that the keys were missing from the bench on the morning of 12 November 2014. Based solely upon the statement to police made by GL, it is possible that the burglary occurred as early as the evening of Monday, 10 November 2014. There is some suspicion, of course, that the barking of the dogs at the premises heard by GL in the early hours of 12 November 2014 may have been the time at which the burglary occurred, but it is not possible to make such an inference with any degree of certainty based on that evidence alone. There is another circumstance which is worthy of mention. There is nothing in the statement made by GL to the police to suggest that there was any significant sum of money in his wallet at the time it was stolen. The charge of theft against the appellant relating to the theft of property from the Rivett Street premises similarly does not allege theft of any sum of cash. It is probable, therefore, that the wallet was stolen either for its own value, or because of the credit cards which it contained. There was nothing to suggest the wallet itself had any significant value. The credit cards would have a value either because the thief could use them to purchase items, or could sell the credit cards to others for them to use. The longer the delay between the theft of the credit cards and their use, either by the thief or by a receiver, the greater the likelihood that the theft of the cards would be discovered and the cards cancelled, thereby rendering them valueless. This suggests strongly that the burglary and theft of the wallet and credit cards occurred closer to 3.54 am on 12 November 2014 than to the evening of 10 November 2014.
The Magistrate proceeded on the basis that the time when the burglary occurred was after 2.00 am on 12 November 2014, being the time at which GL said that he went to sleep on 12 November 2014. This was an inference which was available to the Magistrate, based upon the evidence of GL of his dogs barking after he went to bed in the early hours of 12 November 2014, the nature of the goods stolen and the time at which the credit card was first used. As such, the only rational inference to be made from the admitted and unexplained fact of the appellant’s possession of GL’s credit card at 3.54 am on 12 November 2014 was that the appellant was the person who committed the offences of burglary and theft at the Rivett Street premises. I might add that even if the burglary had occurred on or after the evening of 10 November 2014, but before 2.00 am on 12 November 2014, the possession of the stolen card by the appellant at 3.54 am on 12 November 2014 was still sufficiently recent to allow the inference to be drawn that it was the appellant who committed the offences of burglary and theft: see, for example McCarthy v The Queen [1985] WAR 84, where possession of jewellery six weeks after the theft was sufficiently recent to allow the inference to be drawn that the accused was the person who broke and entered a house and stole the jewellery.
Conclusion
I accept that the Magistrate failed to accord the appellant procedural fairness by not providing him an opportunity to address her after the evidence was tendered, but in the circumstances of this case that should not lead to the appeal being upheld. The only submission that the appellant could have made to the Magistrate was that the possession of the stolen goods by the appellant was not sufficiently recent for the Magistrate to infer that he was the person who committed the burglary and theft. That was the only submission advanced on this appeal. The inferences drawn by the Magistrate were not only open to her, but were, in my opinion, the only appropriate inferences to be drawn.
In my opinion, these appeals should be dismissed and the convictions and sentences imposed by the Magistrate confirmed.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 6 October 2016 |
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