SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Potts (No 4)

Citation: [2016] ACTSC 370

Hearing Date(s): 15, 16 September 2016

Decision Date: 19 September 2016

Reasons Date: 19 December 2016

Before: Penfold J

Decision: 1. The no-case submission in relation to Counts 1 and 2 is upheld.

2. Verdicts of not guilty are entered in relation to Counts 1 and 2.

3. The no-case submission in relation to Counts 3, 4, 5 and 6 is refused.

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – No case submission – accused charged with one count each of burglary, theft and dishonestly take motor vehicle without consent and three counts of obtain property by deception – whether evidence is capable of sustaining verdict of guilty – whether evidence capable of excluding hypothesis consistent with innocence – jury discharged from entering verdicts in relation to charges of burglary and theft.

Legislation Cited: Crimes Act 1900 (ACT), s 287Criminal Code 2002 (ACT), ss 326, 328, 330, 371

Cases Cited: Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323Doney v The Queen [1990] HCA 51; 171 CLR 207Gilson v The Queen [1991] HCA 24; 172 CLR 353Martiniello v The Queen [2006] ACTCA 28R v Morris (1997) 98 A Crim R 408 R v Potts (No 3) [2016] ACTSC 341R v Preddy [1996] UKHL 13; AC 815Re Holmes [2005] 1 Cr App R 16

Parties: The Queen (Crown)

Bradley Lyle Lesley Potts (Accused)

Representation: CounselMr A Williamson (Crown)

Mr J Masters (Accused)

SolicitorsACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Number: SCC 218 of 2015

Introduction

1. Bradley Potts has been charged with six offences, being one burglary, one theft, one offence of taking a motor vehicle dishonestly and without consent, and three offences of obtaining property by deception.

The offences

2. The burglary with which Mr Potts is charged took place between 5.40 am and 7.30 am on Friday 12 June 2015 at premises in Ainsworth Street in Mawson. The theft with which Mr Potts is charged involved the removal from the burgled premises of a large number of items including car keys and a wallet containing a number of credit and debit cards.

3. Around 7.30 am that day, a car was taken from outside the burgled premises, using the stolen car keys. This is the offence of taking a motor vehicle dishonestly and without consent with which Mr Potts is charged.

4. At 7.51 am that day, one of those men (the first man) used one of the stolen cards to buy cigarettes costing around $83 from a supermarket at Erindale.

5. Two minutes later the other man (the second man) used another one of the stolen cards to buy cigarettes for around $50 at the same supermarket.

6. Shortly afterwards, the second man used the same card to buy more cigarettes at a petrol station in Wanniassa.

7. At about 8.05 am on the same day, the second man used the same card to buy a bottle of alcohol at a supermarket in Wanniassa for an unspecified amount. At 8.05 am, the first man bought a bottle of alcohol from the same supermarket, using the card he had used in Erindale.

8. At 8.10 am, the two men went to the Coles Express Service Station in Wanniassa, where the second man tried unsuccessfully to use a stolen card to buy milk and cigarettes, but the transaction was declined. The first man then tried to use one of his own cards, but could not remember his PIN and accordingly could not complete the transaction.

9. The two men had been observed arriving outside one of those businesses in a car that was not the stolen motor vehicle.

10. The first man was subsequently identified as Lachlan Smith. The transactions involving the second man are the subject of the three charges against Mr Potts of obtaining property by deception.

11. The nearby premises where Mr Potts had spent the night before the burglary (his partner’s mother’s home) was searched by police on 20 June 2015, but none of the considerable quantity of property stolen in the burglary was located at the premises.

No-case submission

12. Mr Potts’ trial began on 12 September 2016, and on 14 September 2016, the Crown closed its case. Counsel for the accused then made a no-case submission. In the course of his submissions he indicated that even if the submission was not accepted the defence would not lead any evidence.

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13. The submission covered all six charges on the indictment.

14. In Doney v The Queen [1990] HCA 51; 171 CLR 207 (Doney) at 214-215 the High Court said:

... if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

15. In R v Morris (1997) 98 A Crim R 408, Ipp J distinguished the circumstances in Doney, where the question arose when all the evidence had been given, from the case of a no-case submission made at the end of the Crown case, saying at 416-417:

... when a no case submission is made at the end of the Crown case, the test is not whether upon the whole of the evidence it would be open for the jury to be satisfied beyond reasonable doubt that the accused was guilty (compare M (1994) 181 CLR 487; 76 A Crim R 213). The test, as I have pointed out, is whether the defendants could lawfully be convicted and the trial judge, at that stage, ''is required to take into account all inferences most favourable to the prosecution which could reasonably be drawn from the primary facts". As Kitto J explained in Zanetti v Hill (1962) 108 CLR 433 at 442-443, there is no reason "why a weakness in the prosecution's case may not be eked out by something in the case for the defence or why a prima facie inference which by itself would not be strong enough to exclude reasonable doubt may not be hardened to satisfaction beyond reasonable doubt by a failure of the defendant to provide satisfactory evidence in answer to it when he is in a position to do so''.

16. In Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323, King CJ at 327 set out the principles applicable where the Crown case was a circumstantial one, as follows:

I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.

(emphasis in original)

The indictment

17. The counts on the indictment fell into at least two distinct groups. Defence counsel identified the first three counts (burglary, theft and dishonestly taking a motor vehicle) as “stage 1” and the last three counts (all of obtaining property by deception) as “stage 2”.

18. Count 1 charged a burglary that had undoubtedly occurred, and count 2 charged the equally undisputed theft of specified items from the burgled premises in conjunction with that burglary. Count 3 charged the dishonest taking of a motor vehicle without consent. It was not disputed that the motor vehicle was taken from outside the burgled premises, possibly only a matter of minutes after the burglary and theft were completed, and using a car key that appeared to have been taken in the theft.

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19. Counts 4, 5, and 6 charged offences of obtaining property by deception, which were said to involve the accused’s use of cards taken in the theft to make purchases from three different retail businesses in Tuggeranong.

Defence submissions

20. Defence counsel made different submissions for the stage 1 offences and the stage 2 offences.

Stage 1

21. In relation to the stage 1 offences, the elements of each offence were made out by the evidence, but the identity of the offender was in issue. The question for the jury was whether the evidence established that the accused was the offender.

22. Defence counsel said that the jury would need to be directed that counts 1, 2 and 3 were, in effect, a package, and that the jury could not return different verdicts on different counts; specifically, counsel said, unless the jury was satisfied beyond reasonable doubt that the accused had committed all three offences, they could not find him guilty of any of the three offences. This was because the Crown case had been run on the basis that there had only been one burglar, and the jury could accordingly not return any verdict that might have been reached by reasoning involving the possibility that there had been two burglars.

23. Counsel said that on the evidence relevant to the first three counts, the jury could not be satisfied beyond reasonable doubt that the accused was guilty on all three counts, and so, on the argument set out above, could not return a guilty verdict on any of the three counts.

Stage 2

24. Counsel’s submission in relation to the stage 2 offences was that the evidence relevant to the last three counts did not, in relation to any of the counts, establish all the elements of the offence charged.

Approach to analysis

25. It is accordingly necessary to canvass the evidence available in relation to the various counts, in order to consider whether at this point it could be said that the accused “could lawfully be convicted” or whether there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty on the count concerned.

26. This requires consideration of all inferences to be drawn from the “primary facts” that are “most favourable to the prosecution”, and of certain directions that would need to be given to the jury.

27. It is convenient to look first at the stage 2 counts.

The deception offences

28. The evidence directly relevant to Counts 4, 5 and 6 is to the following effect.

29. There was a burglary in a house, and a number of items were stolen from the house, including bank cards in the name of one of the residents of the house (Karen Emms) and the keys to a motor vehicle that was parked outside the house. The motor vehicle itself was then driven away.

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30. Within a 30-minute period starting little more than 20 minutes after the taking of the motor vehicle, two stolen cards were used to complete a total of five transactions in retail businesses in Tuggeranong (the businesses), and a further transaction involving another stolen card was attempted but declined. CCTV footage was available showing the two men who had taken part in the transactions, and the items obtained in the successful transactions.

31. Three of the transactions were conducted by one of the men (the second man). There was evidence identifying the second man as the accused Mr Potts:

(a) As depicted in the CCTV footage, the man bore a strong resemblance to the accused.

(b) The accused’s partner, with whom he now has a child, gave evidence identifying the accused in the CCTV footage. Not only was this evidence not challenged by defence counsel, but in fact in cross-examination, defence counsel encouraged her to confirm her identification (R v Potts (No 3) [2016] ACTSC 341 at [22]).

(c) Two items of clothing apparently identical to the clothing worn by the second man in the CCTV footage were seized from the accused’s partner’s home, and the accused’s partner confirmed in her evidence that one of those items of clothing belonged to, and was worn by, the accused, and that the other belonged to her.

32. Evidence was given by the informant, and was not challenged, that the financial institutions involved had provided electronic transaction records for the three purchases and one purchase attempt made by the man said to be the accused, as follows:

Time Business Card Amount Goods7.53 am Woolworths

Supermarket Erindale

St George Mastercard

$49.80 cigarettes

7.56 am Woolworths Petrol Station Erindale

St George Mastercard

$51.99 cigarettes

8.05 am Supabarn Wanniassa

St George Mastercard

< $100.00 alcohol

8.11 am Coles Petrol Station Waniassa

Velocity Card milk and cigarettes

33. There was also unchallenged evidence from the informant that the timing of the CCTV footage obtained from the various businesses matched the timing of the electronic transactions recorded by the banks concerned.

34. Each of Counts 4, 5 and 6 charged an offence of obtaining property by deception. The indictment originally charged that in each case that property belonged to Karen Emms, one of the occupants of the burgled house, but it was amended by leave, and without objection from the defence, to refer to obtaining property belonging to someone else with the intention of permanently depriving that person of the property.

35. The offences are created by the Criminal Code 2002 (ACT); the relevant provisions are as follows:

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326 Obtaining property by deceptionA person commits an offence (obtaining property by deception) if the person, by deception, dishonestly obtains property belonging to someone else with the intention of permanently depriving the other person of the property.

Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.

Note For alternative verdict provisions applying to obtaining property by deception, see s 371 and s 372.

328 Meaning of obtains for div 3.3.2(1) For this division, and for the application of section 313 (Receiving) to this

division, a person obtains property if—

(a) the person obtains ownership, possession or control of it for the person or someone else; or

(b) the person enables ownership, possession or control of it to be retained by the person or someone else; or

(c) the person induces a third person to pass ownership, possession or control of it to someone else; or

(d) the person induces a third person to enable someone else to retain ownership, possession or control of it; or

(e) section 330 (2) or (3) (Money transfers) applies.

(2) The definition of obtain in section 300 does not apply to this division, or for the application of section 313 (Receiving) to this division.

330 Money transfers(1) This section applies for this division and for the application of section 313

(Receiving) to this division.

(2) If a person (A) causes an amount to be transferred from an account held by someone else (B) to an account held by A—

(a) the amount is taken to have been property that belonged to B; and

(b) A is taken to have obtained the property for A with the intention of permanently depriving B of the property.

(3) If a person (A) causes an amount to be transferred from an account held by someone else (B) to an account held by a third person (C)—

(a) the amount is taken to have been property that belonged to B; and

(b) A is taken to have obtained the property for C with the intention of permanently depriving B of the property.

(4) An amount is transferred from an account (account 1) to another account (account 2) if—

(a) a credit is made to account 2; and

(b) a debit is made to account 1; and

(c) the credit results from the debit or the debit results from the credit.

(5) A person causes an amount to be transferred from an account if the person induces someone else to transfer the amount from the account (whether or not the other person is the account holder).

36. In considering the application, I told counsel that if the trial proceeded, I would put to the jury that for the counts of obtaining property by deception, they could only return a verdict of guilty if they were satisfied beyond reasonable doubt of the elements of the offence as explained along the lines of the material set out in the following table:

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Elements Explanation/Extension of meaning

The elements of obtaining property by deception in this case are that:

The property in this case is the amount alleged to have been transferred from one account to another account; it does not have to be a physical item.

the accused

by deception deception: means inducing a person to believe something that is

false (in this case, that the accused was entitled to use the stolen card to buy goods); and

may be achieved by words or conduct

dishonestly dishonest means: dishonest according to the standards of ordinary

people; and known by the accused to be dishonest according to the

standards of ordinary people.

intentionally caused an amount to be transferred:

The accused intended to bring about that result if he meant to bring it about or was aware that it would happen in the ordinary course of events.

from an account held by someone else (the second person)

someone else means someone other than the accused, and includes human beings and entities such as companies.

to an account held by a third person

The third person means a person other than the accused and the “someone else” referred to above; the third person could also be a human being or an entity such as a company.

account means an account (including a loan account, credit card account or similar account) with a bank or other financial institution.

An amount is transferred from one account to another if a debit is made to the first account and a credit is made to the second account, and the credit results from the debit or vice versa.

with the intention of permanently depriving the second person of the amount.

The accused is taken to have this intention if the accused intentionally caused the amount to be transferred from an account held by the second person to an account held by the third person.

37. The Crown particularised the conduct of the man involved in the transaction as:

(a) offering the card as the method of paying for the goods he sought to obtain; and

(b) proceeding to use the card to pay for the goods;

submitting that this conduct amounted to an implied representation that he was authorised to use that card to make that transaction.

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38. The Crown particularised the property as the amount transferred from the account operated by the card in Ms Emms’ name, not the goods acquired by the man as a result of the transaction.

39. Thus, there was evidence that, in each instance the subject of a charge against the accused:

(a) the man conceded to be the accused had offered and used a stolen card to pay for goods;

(b) a transaction had been electronically recorded by the bank concerned at the relevant time; and

(c) as a result of that electronic transaction, goods had been handed over to the man.

40. I indicated a view that it would be open to the jury to conclude from this evidence:

(a) that it was the accused who engaged in the relevant transactions;

(b) that the accused had engaged in a deception constituted by representing that he was entitled to use the card concerned to buy goods;

(c) that the accused had engaged in the deception dishonestly;

(d) that the accused had used the card to complete the transaction, and had thereby caused an amount to be transferred from the account to which the card was linked to another account; and

(e) that when the accused did so, he had no intention of repaying the money to the person from whose account it was removed.

41. Defence counsel challenged this conclusion on several grounds:

(a) First, he said that s 328(c), set out at [35] above, cannot be satisfied unless the evidence identifies by name the “third person” and the “someone else” referred to in the paragraph, in this case, the holders of the two accounts involved in the transfer of the amount.

(b) Since in this case there was no evidence whether the St George card in Ms Emms’ name operated an account also held by her or whether she was a secondary card holder, counsel next said that the particular account holder had to be identified by name in the indictment, and accordingly, the amendment of the indictment to refer to property held by “someone else”, rather than property held by Ms Emms, did not cure the deficiency in the evidence.

(c) Furthermore, counsel said, s 330(4), which explains that a transfer occurs when there is a debit from one account and a credit to another account and one of them “results” from the other, can only be satisfied if explicit evidence of the debit and credit are led.

42. However, although counsel referred to several decisions relating to earlier forms of offences arising from misuse of credit or other cards (Martiniello v The Queen [2006] ACTCA 28; Re Holmes [2005] 1 Cr App R 16; R v Preddy [1996] UKHL 13; AC 815), some of which were peripherally relevant to other aspects of this discussion, he offered no authority, nor any argument based on statutory interpretation, for any of the

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propositions summarised at [41] above to the effect that express evidence is required of certain particulars of the offences.

43. In the normal course of events, evidence of the information identified by defence counsel would be readily available, and I consider that it would be wise for a prosecutor to lead such evidence. However, I was satisfied that in this case, the evidence that the cards were in Ms Emms’ name, and that Ms Emms told police she did not know the accused, is evidence from which the jury could infer that whoever was the holder of the account operated by Ms Emms’ cards, it was not the accused, and accordingly that the account operated by the accused using Ms Emms’ card was an account held by “someone else”.

44. I was also satisfied that:

(a) the evidence that, as a result of the accused’s use of the card concerned, the salesperson was willing to hand over the goods that the accused sought to acquire; and

(b) the evidence that transactions were recorded by the bank concerned as having taken place at the relevant times;

would permit the jury to infer that funds had been, or would shortly be, transferred from the account held by “someone else” to an account directly or indirectly connected with a third party, that is, the person conducting the business.

45. I did not see any basis for concluding that the jury needed to know, or be able to infer, the name of the actual account holder who had made a card available to Ms Emms (if Ms Emms was not in fact the primary card holder), or the name of the holder of the account to which funds had been transferred in the transaction.

46. Counsel also submitted that, having regard to the details of the offence as explained in the legislation, including s 330, the necessary intention on the accused’s part was an intention to move funds between the accounts of people unknown to him, rather than an intention to use someone else’s card to obtain goods for himself. I am satisfied that the necessary intention relates to the conduct engaged in by a person that results in the obtaining of property as defined. That is:

(a) if the jury can be satisfied that the accused intended to use Ms Emms’ card to acquire goods from the business concerned, that element of the offence can be made out; and

(b) it does not matter whether or not the accused consciously intended, or even recognised, that this would involve a transfer of funds from an account operated by Ms Emms’ card to another account held by another person; and

(c) it certainly does not matter whether the accused was aware of the specific accounts that would be involved (which of course would include the account into which were paid receipts by the business providing the goods).

47. Thus, I am satisfied that there is evidence before the jury on which it could properly conclude that the accused is guilty of the offences charged in Counts 4, 5 and 6.

Burglary, theft, and car theft

48. The issues relating to Counts 1, 2 and 3 are different, and more complex having regard to the circumstances of the relevant offences.

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49. The police informant, Detective Senior Constable Best, gave evidence that she believed that the burglar, thief and car thief were the same person, and that “the evidence available” was that one person was involved, but she did not identify the evidence on which she based that proposition.

Burglary and theft

50. There is no direct evidence pointing to any particular person as the burglar. However, the accused can be linked to the burglary (albeit not necessarily as the burglar) and the theft by his possession, possibly as little as 23 minutes after the burglary, of a card stolen in the burglary.

51. The accused can also be linked to the burglary, although more tenuously, by the presence, in the car he was using when first spoken to by police roughly a week after the burglary, of gloves stolen in the burglary, and by evidence that DNA consistent with his was found inside those gloves.

52. Other relevant circumstantial evidence was evidence from the accused’s partner, Ms Vidler, that on the day of the burglary, the accused had been staying with her at her mother’s house less than 200 metres distant from the scene of the burglary.

53. Next, the Crown says, the accused can be linked to the taking of the car charged in Count 3, and if the jury accepts that the accused was the car thief, that in turn supports a finding that the accused was also the burglar.

Car theft

54. The Crown says that the accused could be found to be the car thief by the following evidence and reasoning.

55. The keys to the car, like the cards, were stolen in the burglary. To the extent that the accused can be linked to the burglary by his possession of the stolen cards, he can also be linked indirectly to the taking of the car, since that was achieved using keys stolen in the burglary.

56. The taking of the car was observed by a witness, Ms Ashton, who saw a person get into the car and drive it away. She had first seen him running towards the car from a park or public walkway that ran beside the burgled premises and was separated from those premises by a side fence. She gave a description of the person that had some elements in common with the appearance of the accused in the CCTV footage of the card transactions, although the Crown conceded that there were a number of discrepancies between her description and the accused’s appearance.

57. There was evidence from Detective Senior Constable Best that the two men involved in the deception offences arrived together, at one of the businesses at which the deception offences were committed, in a car that was not the car involved in the car theft.

Consideration

Connections between offences

58. There is no doubt that connections can be identified between the burglary and theft, the car theft, and the card offences, arising from possession of property stolen as a result of the burglary. The problem for the Crown, however, was that the link between the burglary and a person in possession of items stolen in the burglary was neither unambiguous nor

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strong, and in particular did not as such amount to proof that the person in possession of stolen items was the burglar.

59. Rather, the evidence suggested a connection between the person in possession of the stolen items and the person who stole them, but the possibility that the two were the same person is only one of the possible connections. Other possible connections are:

(a) that the burglar gave the items to the person found in possession of them, or to a third party who passed them on to the person found in possession; or

(b) that the burglar lost or discarded an item that was found at a later point by the person found in possession of the item – probably a more likely connection in relation to the cards, but not inconceivable if the car keys were lost or discarded near the car.

60. Furthermore, whatever the nature of the connection between the burglary and items stolen in the burglary, there is no reason in logic why that connection should be the same for every item stolen in the burglary. That is, the fact that a particular person obtained possession of one item stolen in a burglary does not prove that he is the only person in possession of items stolen in the burglary. Indeed, the evidence in this case establishes that at least two different men were in possession of items stolen in this burglary, being the accused and Lachlan Smith.

61. Thus, the accused’s possession of the stolen cards does not establish that he was also the person in possession of the car keys. The possession of the stolen cards may be relevant to a circumstantial case that the person with the cards also had the car keys, but would not be sufficient to support the entire weight of such a circumstantial case. Apart from the possession of cards stolen from the location of the car keys, the only other evidence to link the accused with the taking of the car is:

(a) the evidence that he was at the relevant time staying in close proximity to the place from which the car was taken; and

(b) Ms Ashton’s description of the person who took the car.

62. Proximity might lend some extra weight to an otherwise strong circumstantial case; it could not create such a case. In this case, Ms Ashton’s description, like the accused’s possession of the stolen cards, is not strong enough to create a strong circumstantial case. Ms Ashton was at one stage only just over a metre away from the person who drove off in the car; the elements of the description of that person given by her, and the accepted description of the accused, can be compared in the following table:

Ms Ashton’s description of the person she saw driving off in the car

Accepted description of the accused

male with athletic build male with athletic build

about 165-170cm tall around 180cms tall or a bit more

wearing: wearing:

a black and grey hoodie with white piping forming a stripe down the sleeve;

black track pants black runners

a black hoodie with blue stripes down the sleeves, and a grey sleeveless vest over it

black track pants white runners

63. That is, the only clearly common factors are that the person described was in each case a male with an athletic build wearing black track pants and runners. As to the description

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of the man as wearing a black and grey hoodie with stripes down the sleeves, the evidence was clear that what the accused was wearing in the CCTV footage was a black hoodie with a grey sleeveless vest over it. However, that fact emerged from display of the actual garments in court, rather than from the CCTV footage, which could easily have been interpreted as showing the accused wearing a hoodie with black sleeves and grey front panels. That is, the description of the man as wearing a black and grey hoodie was consistent with the appearance of the man who was actually wearing a black hoodie with a grey vest over it.

64. The distinguishing factors between the man who took the car and the accused are that the man seen taking the car was described as, in effect, at least 10cm shorter than the accused, he had a white stripe rather than several blue stripes on his sleeves, and he was wearing black rather than white runners.

65. Noting that hoodies and track pants, and dark-coloured ones in particular, as well as runners, regularly feature in witness descriptions of burglars and other offenders, the most that could be said of this description is that it does not exclude the accused as the person who took the car. However, a description to that effect could not of itself provide a sufficient basis for a safe identification of a particular person as an offender.

66. The aspects of the description that are inconsistent with the accused’s appearance (the estimated height of the man who took the car, the colour of the runners, and, perhaps less significantly, the colour of the sleeve stripes) do not necessarily exclude the accused as the car thief; as the Crown says, the jury might accept that the witness was simply wrong as to some matters of detail. However, they do not allow extra weight to be given to those parts of the witness’s description that are consistent with the accused’s appearance, and this means that the witness’s evidence must generally carry little weight.

67. If the jury were prepared to disregard the witness’s evidence about the accused’s height and shoe colour, and about the colour of the stripes on his sleeves, they would be left with only a description that would from time to time fit a substantial number of men of the accused’s general build and age group. Accepting that the witness’s evidence might be incorrect as to details of height, shoe colour and colour of sleeve stripes does not permit a positive inference that the correct description of the man was that he was taller and was wearing white runners and a hoodie with blue strips on its sleeves. That is, the strength of the identification evidence from Ms Ashton cannot rise above the details that are in fact consistent with the accused’s appearance, but those details could not distinguish the accused from many other men, especially those likely to be found out and about early on a winter morning in Canberra.

68. As already noted, the fact that the man who took the car is linked to the burglary by his possession of the stolen car keys provides an indirect connection to the man in possession of the cards stolen in the same burglary, but could not of itself establish that they are the same man.

Assessment of the evidence

69. Thus, the position is:

(a) the accused had some items obtained as a result of the burglary;

(b) another man had some items obtained as a result of the burglary;

(c) the car thief had at least one item from the burglary;

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(d) the accused fitted certain aspects of the witness’s description of the car thief, but did not fit certain other aspects of that description;

(e) the aspects of the witness’s description that the accused fitted were not sufficient to distinguish the car thief from many other men.

70. Depending on the jury’s view of Ms Ashton’s evidence, the evidence does not exclude the accused as the car thief, and provides some support for that possibility. The Crown case in relation to the car theft is a relatively weak case, but it is not entirely circumstantial and it is not in my view so weak as to justify taking it away from the jury.

71. The position is different in relation to the burglary and theft, as to which the Crown case is entirely circumstantial.

72. Even if the jury concluded that the accused was the car thief, it could not be said that the only rational hypothesis to explain that and all the other evidence was that the accused was also the burglar. Other obvious possibilities were that the car thief was not the burglar but that he obtained the car keys, directly or indirectly, from the burglar.

73. Also relevant to whether the car thief was the burglar was Ms Ashton’s evidence about where the car thief came from and what he did (at [56] above). Her evidence was not that she saw the car thief run out of the burgled house, but that she saw him run out of a park or walkway that ran beside the burgled premises.

74. Given the substantial volume of other goods taken in the burglary, which included two bicycles, two laptops, a box of cycling accessories, various electronic devices, and items of clothing, it is clear that what Ms Ashton saw was not a person in the process of removing all the stolen goods from the premises (whether or not he was the person who had earlier removed those other goods).

75. It is possible that Ms Ashton’s observation of where the car thief came from was mistaken, and that he had in fact come straight out of the burgled premises with little or nothing more than the car keys, but it is also possible that all the stolen goods had already been removed from the premises to another location, and that the car thief had come, or returned, with the stolen car keys to find the car to which those car keys belonged. There is nothing particularly far-fetched about the hypothesis that the person or persons who had removed most or all of the stolen items from the burgled premises had handed over the car keys to an associate who would find and take the car or, more generally, that the car thief and the burglar were associates but were not the same person. Specifically, there was nothing in the evidence that could exclude the entirely rational hypothesis that the car thief was not the burglar but an associate of the burglar.

76. Apart from his admitted possession of the cards stolen in the burglary, and the Crown assertion that he was also the car thief, there was little or no evidence from which to infer that the accused was the burglar (as distinct from a direct or indirect associate of the burglar). The already minor significance of the accused’s proximity to the scene of the burglary, theft and car theft was further reduced by the fact that when, eight days after the burglary, police searched the nearby premises where the accused had spent the night before the burglary, they found none of the property stolen in the burglary (at [11] above).

Recent possession

77. The Crown also sought to rely on the doctrine of recent possession in support of its case that the accused was the burglar.

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78. That “doctrine” says that if a person is found to be in possession of property which has recently been stolen and either gives no explanation for that possession, or gives an explanation which could not reasonably be true, the jury is entitled, but not obliged, to conclude that either the person stole the property or that he received it knowing it to be stolen: Gilson v The Queen [1991] HCA 24; 172 CLR 353. In the absence of any explanation for the accused’s possession of the stolen cards, the jury could conclude that the accused either stole those cards or received them knowing them to be stolen, but there is in this case no basis for choosing between those conclusions.

79. The jury would not be entitled to find the accused guilty of theft (as distinct from knowingly receiving stolen property) in reliance on recent possession if it is also reasonably possible that someone else had already stolen the property before the accused came into possession of it. Here there are at least two and possibly three people shown by the evidence to have been in possession of items stolen in the burglary, shortly after it took place (the accused, Lachlan Smith, and the car thief). The accused’s possession of the stolen cards does not distinguish him from the other person or persons shown to have been in possession of stolen items shortly after the burglary and accordingly could not as such identify him as the (or a) person who stole property from the burgled house. Even less could that possession be relied on to identify the accused as the (or a) burglar.

80. In this case, there was no alternative charge of receiving, presumably because this would have been inconsistent with the Crown’s case theory that the burglar, the thief and the car thief were all the same person.

81. In a prosecution for theft, s 371 of the Criminal Code permits a jury that is not satisfied of an accused’s guilt of the offence of theft to find instead that the accused is guilty of receiving, “but only if the [accused] has been given procedural fairness in relation to that finding of guilt” (s 371(1)).

82. The prosecutor did not submit that this condition had been satisfied in the current case; since the Crown case was run entirely on the basis that the accused was not only the thief but also the burglar, the accused was, in effect, not invited to respond to a receiving charge, which could only have related to the stolen cards and as to which the elements of a defence might have been rather different. If the Crown had pressed for the jury to be told of the alternative verdict, I would not have been satisfied that the accused had been given procedural fairness in relation to the receiving offence.

Form of Crown case

83. Defence counsel maintained his submission that since it was the Crown case that all the stage 1 offences had been committed by the same person, and that there was only one burglar, this imposed significant restrictions on the verdicts available to the jury. The restriction asserted by counsel was, in effect, that the only available verdicts were three guilty verdicts or three not guilty verdicts. This seemed to involve an argument that the jury could only be satisfied that the accused was the burglar and the thief, but not the car thief, if they believed that there was a second burglar (who was also the car thief), and such a conclusion was not available to the jury because of the way the Crown had put its case.

84. The Crown’s position that the same person was responsible for the burglary, the theft and the car theft was not apparently based on any particular factual evidence but only on the police informant’s evidence of her belief (at [49] above). However, even if the Crown’s position was correct, it did not seem to preclude the jury being satisfied

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beyond reasonable doubt that the accused was the car thief without being satisfied beyond reasonable doubt that he was either the burglar or the thief (as distinct from a person who had acquired the car key directly or indirectly from the thief).

85. The issue, as far as I could see, was not what the Crown believed to be the facts of the matter, but what the Crown had managed to prove beyond reasonable doubt. There was specific evidence (Ms Ashton’s description of the car thief and the accused’s possession of items other than the car key stolen in the burglary) that could have established that the accused was the car thief without establishing that he was the burglar or the thief. In those circumstances, I could not see that my conclusion that the Crown had not provided evidence on which the jury could properly be satisfied that the accused was the burglar or the thief precluded the jury being satisfied of the accused’s guilt of the car theft offence.

86. Thus, defence counsel’s submission that Counts 1, 2 and 3 were, in effect, a package were not made out, and in particular did not mean that, having decided that Counts 1 and 2 must be taken away from the jury, I was obliged to take Count 3 from the jury as well.

Conclusions

87. In short, I concluded that the accused had no case to answer in relation to the burglary or theft. He had a weak case to answer in relation to the car theft, and a strong case to answer in relation to the deception offences.

Orders

88. For the reasons set out above:

(a) I discharged the jury from considering counts 1 and 2, and entered verdicts of not guilty under s 287 of the Crimes Act 1900 (ACT); and

(b) I rejected defence counsel’s no-case submission on counts 3, 4, 5 and 6, and the trial continued.

I certify that the preceding eighty-eight [88] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

Associate: David Hoitink

Date: 19 December 2016

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