Cross v The Queen S59/1996 [1996] HCATrans 474 (2 December 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S59 of 1996

B e t w e e n -

MICHAEL FREDERICK CROSS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 2 DECEMBER 1996, AT 10.45 AM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI: If the Court pleases, I appear with my learned friend, MR G.D. WENDLER, for the applicant. (instructed by T. Murphy, General Manager, Legal Aid Commission of New South Wales)

MR G.S. HOSKING, SC: May it please, your Honours, I appear for the respondent with my learned fried, MR A.M. BLACKMORE. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ: Yes, Mr Papayanni?

MR PAPAYANNI: If the Court pleases. The question here is one as to whether the rule as to recent possession as laid down in Trainer v The King in 1906 is still the law in Australia. That, in my submission, is a question which, under section 35A of the Judiciary Act, is one going to the administration of justice throughout Australia and is of importance in the application of it and the decision of the Court of Criminal Appeal in this matter has undermined the administration of justice in that respect.

If I may just put it this way: the charge in this case, of course, was one of stealing and also receiving under section 188 of the Crimes Act. At the end of the Crown case, the accused or the applicant was acquitted on a charge of larceny, not for the reason as put in the Court of Criminal Appeal judgment, but for another technical reason in relation to the charge under section 154A of the Crimes Act. So at the end of the Crown case the accused had been acquitted of the charge of larceny.

The charge of receiving then - the elements of that are quite simple. One, that you have to prove that the car in this case, or the property, was stolen property. Two, that you have to prove that the applicant obtained possession or received possession of the property, that is the stolen vehicle, and, three, at the time that he received it that he knew that it was stolen property. Two and three in this particular case, there was no direct evidence of the fact that he had obtained possession of the stolen vehicle and, three, that there was any evidence that showed that he knew it was stolen. So, in this particular case the Crown relied on the doctrine or the rule as to recent possession.

Of course, the situation was that on 16 March he was found in possession of a stolen chassis and an engine, which at that time, appeared to be his own engine. He was not found in possession of the stolen vehicle which had been stolen on the 29 January. The charge was laid at Wyoming.

Now, all the police evidence in this case was excluded because of assault and other technicalities and there was no other evidence. So the situation was that the applicant was found in possession of the stolen chassis, but the engine appeared to be his own, which, of course, it was not, but at that stage the submission was made that there was no case to go to the jury. The Court of Criminal Appeal did not deal with that at all.

TOOHEY J: In putting the matter that way, Mr Papayanni, are you accepting that there was possession of at least the chassis of the vehicle?

MR PAPAYANNI: It was argued that it was not, but there was no direction as to possession, but for the purpose of this argument we will accept that he was in possession. The situation was that he did not have a licence. He had never driven a car. He was, in effect, it could be said to be the joint owner with his girlfriend, and the car had been driven down from Wyoming to Caste Hill for the purpose of being registered.

TOOHEY J: On that footing, what is the proposition before this Court?

MR PAPAYANNI: I will come to that in a moment.

TOOHEY J: Perhaps you could just come to it now, for a moment.

MR PAPAYANNI: I am, I am coming to it now. The High Court, a strong Court, of course - there is the Chief Justice Sir Samuel Griffith, and Justices Barton and O'Connor - held that the doctrine, or whatever we like to call it, the rule, as to recent possession in Trainer's Case was that you must be found in possession - before recent possession, the rule as to recent possession could apply. So, the situation then in relation to what was said by the Chief Justice on page 133:

The foundation of the charge of stealing is that the property in question is stolen property. That is, if the property of someone has been taken by someone else, a person found in possession -

and "found in possession" is the vital part - - -

TOOHEY J: I am sorry to just to pull you up again, but I am still having difficulty in seeing - once you say that there was possession of the chassis, is your argument that there was no possession of the vehicle because there was no motor in the vehicle to which the doctrine of recent possession could attach, or are you saying something else?

MR PAPAYANNI: Well, it was not a car, it was not a stolen car.

TOOHEY J: That is the argument, is it?

MR PAPAYANNI: That is the argument.

TOOHEY J: Not that he was not in possession?

MR PAPAYANNI: He was not found in possession of the stolen car. What was relied upon was an inference - and there are many inferences that were open - that after he gave evidence as to how he had bought this car, the particular car that he had, the engine was shown to be his engine on a previous vehicle which he had owned and he had, in effect, brought evidence to show that in 1989 that he had sold that engine to these people, Philp Brothers - - -

TOOHEY J: Yes, I understand that.

MR PAPAYANNI: And then they had sold it to ABC Taxis. Now, what happened to it after that we do not know. The police vehicle - when I say "police vehicle", the vehicle that was found with the stolen chassis and the engine which appeared to be the same engine, although we knew it was not because one was a fuel injected and his other was an ordinary engine, it was taken by the police. We endeavoured to trace that. It went to Auto Auctions, and they had no record of it. This fresh evidence was put in at least six weeks before the Court of Criminal Appeal and the Crown came up with no evidence from the police as to what had happened to that. A car with an engine, the same one, MIR771, was in the possession of a Mr Boyle. It had a different chassis but the same number engine, and that was not the engine that belonged to the applicant.

TOOHEY J: What would be the position if he had been charged with being in possession of a stolen chassis?

MR PAPAYANNI: He would have been found guilty. That is the point. What we say is the rule here as laid down by the High Court and overruled, or said that it is no longer part of our law by the Court of Criminal Appeal, was that you do not have to be found in possession, you only have to be proved or shown to be in possession at some anterior time. Now, the law here was quite clear. The Chief Justice had found in possession is the basis on which the law of recent possession applies. He then went on to explain, at page 135, in relation to the better protection of cattle - that is in the last paragraph - that when a search warrant was issued, well, then, the person found with the cattle could be thrown into gaol. He then went on to say, on page 136, in relation to that, he referred to what was the goods in custody under section 502 of the Crimes Act and that was a case there where it was a person found in possession. The goods in custody situation is a person found in possession. You see, the goods in custody is not a case - if the police go along and search your place and they find goods which they reasonably suspect to be stolen, well, then, they can charge you with goods in custody and you have to give an explanation. The whole basis of the recent possession doctrine is that you have to give an explanation. If you are found in possession of a stolen vehicle - - -

BRENNAN CJ: The whole basis of the recent possession doctrine is that you find an accused person in possession of that which is stolen and, then being given an opportunity to give an explanation, he does not give one.

MR PAPAYANNI: Well, the High Court referred to it as a presumption. I do not see anything wrong with that.

BRENNAN CJ: The presumption basis on which a guilty inference can be drawn.

MR PAPAYANNI: That is right.

BRENNAN CJ: And the guilty inference is drawn from the fact that it is stolen, the fact that it is in possession shortly after it has been stolen and the fact that there is no innocence of explanation.

MR PAPAYANNI: In our submission, it is found in possession because the whole situation the High Court argued there was in relation to the search warrant. They then went on to goods in custody. The situation is that it is the same in statute. If you are found in possession of house-breaking implements at night, you do not prove that someone had house-breaking implements a month before. It is a preventive situation.

BRENNAN CJ: No, because that is not the definition of the offence. The definition of the offence here is stealing or receiving.

MR PAPAYANNI: Well, the High Court - - -

BRENNAN CJ: The question is from what facts can you draw that inference?

MR PAPAYANNI: Yes, and the High Court has said in Trainer's Case, which has been longstanding law in relation to recent possession, you must be found in possession, not proved to be in possession at some - - -

BRENNAN CJ: That is because that is the way in which you give evidence of the fact that he was in possession.

MR PAPAYANNI: No, the situation is that if you find something at a person's house and you prove that he had possession at that time then he is found in possession.

TOOHEY J: That is if you are relying upon that - or if the Crown is relying upon that principle, but does not the evidence here at least warrant the inference that the chassis, having admittedly been stolen, the engine having disappeared, and then replaced by an engine which had previously belonged to your client, that there was sufficient evidence to warrant a conclusion that he had received the property knowing it had been stolen.

MR PAPAYANNI: Yes, but the law is if there are equally consistent inferences that may be drawn, and there are a number of inferences that could be drawn. One, he could have bought the chassis as he had the engine. He could have bought the chassis not knowing it was stolen. He could have bought the chassis knowing it was stolen. He could have bought the whole of the vehicle knowing it was stolen, not knowing it was stolen. He could have bought the chassis and the engine, as he said he did, and there are a number of inferences that could be drawn in relation to it. Now, each of those - this was just speculation, in our submission, because on the 16 March was six weeks or so after the car had, in fact, been stolen. So you get a situation there that what the High Court said in Trainer's Case, it has always been accepted as the law, of longstanding. It has always been in every case that you refer to, they refer to "found in possession", not proved to be in possession at some time or other because the whole basis of it is this idea in relation to if you have stolen property in your possession you do not commit the offence of receiving. You can be charged with goods in custody. So the situation is that if you have in your possession, two years after the car is stolen - the cars, of course, are turned over very quickly - well, then, the Crown could not rely on recent possession. Then, if you go in and give evidence and say, "Look, I got that six weeks or so after", and give an explanation in relation to it and the jury do not accept your explanation, the Crown still has to prove that you knew that the vehicle was stolen at the time that you received it.

TOOHEY J: That is true but that is a different proposition altogether. The Crown may not be relying upon recent possession.

MR PAPAYANNI: That is this case. That is this case. The Crown were relying on recent possession at the end of the Crown case because the only thing they had was the fact that there was a stolen chassis and an engine that belonged or apparently belonged to the applicant, at the end of the Crown case.

BRENNAN CJ: Mr Papayanni, the question at the end of the Crown case is, was there sufficient evidence to warrant a jury finding beyond reasonable doubt the guilt of the accused.

MR PAPAYANNI: Yes, and there was not, in my submission.

BRENNAN CJ: Well, you say there was not, and the question is was there or was not there? It does not matter whether you call it a doctrine of recent possession or whatever. One fact that you point to as negativing the sufficiency of the evidence is that the accused was not at the relevant moment in possession of the chassis. Be it so, he was at an earlier stage. The question is whether that fact, together with the other facts in the case, were sufficient to support the verdict.

MR PAPAYANNI: Yes, but at that stage his Honour relied on recent possession. Recent possession on 16 March. When it went to the jury his Honour directed on recent possession three weeks or so after the 29 January, which was a different situation at all. The jury rejected what the applicant had said. You see, what is happening here is that the two elements that are necessary: the fact that the stolen car was in the possession of the accused, was to be proved by circumstantial evidence; the fact that he knew that it was stolen was to be proved by circumstantial evidence upon circumstantial evidence. That is not the law, in my submission.

The situation is that there is no doubt in relation to the cases here - and surely the High Court knew, and eminent lawyers like Sir Samuel Griffith knew what "found" meant and they laid down the law which has been of longstanding that this was the law in relation to recent possession. Not a law saying that if you are proved to be in possession at some previous time, by inference in this case, then you could rely upon the fact that the inference there which was derived on some, in this case, speculation, you then say that he is guilty of larceny or receiving. Add to that the fact that he been acquitted of larceny, how could he be guilty of larceny or receiving? So you get a situation here where the doctrine did not apply in any case.

BRENNAN CJ: Mr Papayanni, does your proposition go this far: if a car is stolen on day one and the accused is found in possession of that stolen car, or the accused is proved to have been in possession, I should say, of that stolen car on day two, and then six weeks later that car is found in the possession of a third party, that you cannot convict the accused?

MR PAPAYANNI: Well, no, you cannot, because it is not - - -

BRENNAN CJ: If that is so, it is a lot of nonsense, is it not?

MR PAPAYANNI: No, you can convict him if there is evidence to show that he knew that it was stolen and the circumstances in relation to how he received it. You see, your Honour says "proved to be in possession" - - -

BRENNAN CJ: Say, the police officer goes to him and says, "We have evidence that the day after this car was stolen you were seen driving it around the streets."

MR PAPAYANNI: Yes, and he says, "I didn't."

BRENNAN CJ: Now, what explanation have you got for that?

MR PAPAYANNI: He said, "It wasn't me," and he is proved to be - well, then, he is shown to be lying. You have got evidence that he knew it was stolen because he was hiding something. See, in this case you have not got that evidence. You have not got any evidence at all that he knew it was stolen. So, what the Crown relies upon is that three or four weeks after the event, on his admission, he is found with the chassis. Now, because there are equally competing inferences in relation to that - he is a mechanic. Why would he buy a whole vehicle for $3,000 when he had to borrow money for it and then put his own engine into it and then take it along with an altered number on the chassis to be registered, and he had driven down from Wyoming that day?

You see, this was a case where the accused, really, was a person that was badly done by. He was a person of good character. His family are of good character. They all lied, according to the jury. The police hide the fact as to the what happened to the vehicle that was, in fact, stolen with the engine in it. You have all the situations there: that Mr Jonkers from Philp Brothers, he lied in relation to it. If you do not accept what the accused said you cannot accept the part - the only part you can accept of what he said is that he received the chassis. You cannot accept - because the jury reject all this evidence of a family of good reputation, which is supported by evidence, evidence as to how he borrowed the money and so on. You get all that evidence in relation to the matter and the jury say, "Well, we don't accept that." If they do not accept it, they accept then, out of the blue, that he got the whole car. There is no basis on which they could accept that because there are a number of competing inferences in relation to it.

The situation here, in our submission, it is not the law - and this matter becomes very important in relation to the question of goods in custody. If a person is proved to have had custody of some goods six weeks before and they are reasonably suspected of being stolen, can he be charged with goods in custody? The answer is quite clearly no. If a person has housebreaking implements in his own home, can he be charged with being found with housebreaking implements. The High Court, when it laid down that he had to be found - and the three Judges said "found in possession". There was none of this - what the Court of Criminal Appeal has overruled, at pages 37 to 38, what the High Court has said in relation to that. That, in our submission, is a matter of importance.

If this is to continue, well, then, how far can you extend the law in relation to these matters? Receiving has always been an important matter. There are statutory provisions in relation to receiving as to what matters you can deal with and so on. This is a law that has been of longstanding. It goes back over 100 years. It was laid down in 1906 by the High Court and now the Court of Criminal Appeal endeavours to explain that it means something else, when up to recent decision, it meant exactly what it did say, being found in possession. The High Court does not use those words loosely. They mean what they say and, that, in our submission, is a matter of great importance.

BRENNAN CJ: Thank you, Mr Papayanni. We need not trouble you, Mr Hosking.

Having regard to the whole of the evidence reviewed in the Court of Criminal Appeal, the correctness of that Court's decision is not attended with sufficient doubt to warrant a grant of special leave. Accordingly special leave is refused.

AT 11.06 AM THE MATTER WAS CONCLUDED