R v Sinanovic [2000] NSWCCA 395 (11 December 2000)

Last Updated: 19 December 2000

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v SINANOVIC [2000] NSWCCA 395

FILE NUMBER(S):

60624/97

HEARING DATE(S): 4 February 2000

JUDGMENT DATE: 11/12/2000

PARTIES:

Regina

Hakija Sinanovic

JUDGMENT OF: Wood CJ at CL Hulme J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 94/11/1091

95/11/0286

95/11/0132

LOWER COURT JUDICIAL OFFICER: Grogan DCJ

COUNSEL:

Crown: M Grogan

Appellant: JA Coombs

SOLICITORS:

Crown: SE O'Connor

Appellant: Chau & Associates

CATCHWORDS:

LEGISLATION CITED:

DECISION:

Appeal dismissed

JUDGMENT:

- 24 -

IN THE COURT OF

CRIMINAL APPEAL

No. 60624/97

WOOD CJ at CL

HULME J

GREG JAMES J

Monday, 11 December 2000

Regina v Hakija SINANOVIC

JUDGMENT

1 WOOD CJ at CL: I have read the reasons for judgment of Greg James J, and agree with the orders proposed.

**********

IN THE COURT OF

CRIMINAL APPEAL

No: 60624/97

WOOD CJ AT CL

HULME J

GREG JAMES J

Monday, 11 December 2000

REGINA -v- Hakija SINANOVIC

JUDGMENT

2 HULME J: These proceedings are the third of 5 appeals brought by the Appellant against convictions in the District Court. So far as this appeal is concerned, the Appellant was indicted on 3 November 1997 before Judge Grogan and a jury on charges which, as transcribed, were in the following terms:-

1. For that he on or about August 1991 at Sydney in the State of New South Wales did steal a ring the property of Texas Patrick Cranney.

2. Further that he in the alternative that on or about 1 August 1991 and 24 March 1992 at Sydney in the State of New South Wales did receive and have a ring the property of Texas Patrick Cranney before then stolen and that he at the time when he so received the said ring knowing it to have been stolen.

3 On 13 November 1997 the jury found the Appellant not guilty on the first count but guilty on the second. The maximum penalty prescribed for the offence was, by virtue of s188 of the Crimes Act, 10 years penal servitude. On 14 November Judge Grogan sentenced the Appellant to penal servitude for a minimum term of 13 months commencing on 16 April 2000 and an additional term of 14 months commencing 16 May 2001. 16 April was the day after a prior sentence imposed on the Appellant by Stewart ADCJ expired.

4 The grounds of appeal are as follows:-

1. The trial judge erred in not allowing the accused an adjournment to obtain legal representation.

2. The trial judge erred in allowing the Crown to allege recent possession on the facts in the indictment.

3. The trial judge erred in giving a direction to the jury on recent possession and that those directions were confusing and prejudicial.

4. The verdict was unsafe and unsatisfactory on the evidence.

5. In this trial the prosecution suggested that the appellant was lying when he said he purchased the item of jewellery on an occasion with Tony Nastase, when, in the knowledge of the Crown, in another trial (95/11/132), a few months later, before Acting Judge Horler, a Crown witness, Antonio Nastase, was to give evidence of being with the appellant at the same jewellery shop in Leichhardt where some jewellery was purchased.

5 It is not obvious where this last ground came from. It is referred to in written arguments advanced on the Appellant's behalf in the second appeal. However, it obviously relates to this appeal and it is not inconvenient to deal with it.

Ground 1

The trial judge erred in not allowing the accused an adjournment to obtain legal representation.

6 On 3 November the Appellant advised the trial Judge that he was not represented and then in response to a statement from His Honour that presumably the trial was ready to proceed responded that while the trial was and the Crown was, he himself was not. He explained the bases of this situation to be firstly that he was not a qualified lawyer, secondly that he could not defend himself on points of law, thirdly that he tried to get legal representation but that was denied, and fourthly the Crown wanted to proceed because they thought he was procrastinating. The Appellant went on to say:-

"I will leave the Crown to do the case and then it will be a matter of appeal if I do lose the trial in front of jury because I'm not going to question nobody.... I will not be questioning no, no witnesses.

7 The Crown Prosecutor then informed His Honour that the trial had been fixed some months ago having been often not reached for various reasons, that stay applications had been made, one successfully but the stay granted in that had expired in March of 1997. The Prosecutor went on to say that the Appellant had been "consistently refused legal assistance by the Legal Aid Commission, on the footing that they haven't got the full information." There was reference to some of the other matters which I have detailed in my reasons in the second appeal, proceeding number 60564/97 and which I do not think it necessary to repeat. The Crown Prosecutor went on to say that it did seem to be the situation that the Appellant was simply unable to obtain legal assistance and then asserted the existence of a problem arising from the fact that there were now three back to back trials (involving the Appellant) fixed.

8 Discussion then moved to other topics. A little later Judge Grogan asked the Appellant as to his estimate of the length of the trial to which, so far as is presently relevant, the Appellant replied - T8:-

"I believe Your Honour I will only, like I said I will not know how to question the points of law but I will be questioning them what I do know if, to the Crown witnesses. Like I said I could not put points of law to Your Honour or any explanation to do so in that kind of regard because I will not know. I will try only to question what is relevant of the case... I cannot read and write English."

9 What the accused then went on to say is a little difficult to understand but seems to have been that he had counsel appearing for him in the committal proceedings and he would have to ask an interpreter to go through the record of those proceedings and then ask the questions that counsel had on that occasion.

10 It is not clear whether His Honour was conscious of the difference between this and what the Appellant had earlier stated for his Honour is recorded shortly afterwards as saying "well you said you wouldn't be questioning any witnesses and the questions would relate to matters of fact in any event (sic)".

11 On the basis of his assertion that although he had learned the English language, he could not read and write, the Appellant sought the assistance of his wife and an interpreter. Although Mrs Sinanovic was apparently able to read and write and, according to the Appellant, understood the "files" it was thought the interpreter would assist in the interpretation of documents. The matter proceeded on that basis. T14-15.

12 Having regard to the totality of what the Appellant said, it is impossible to conclude that he in fact asked for an adjournment. The tenor of the discussion and the fact that his Honour never actually ruled on such an application or gave reasons in that regard indicates that that was also his view.

13 The fact that the Appellant was unrepresented and said that he was not ready to proceed was calculated, particularly in light of the decision in Deitrich v R [1992] HCA 57; (1992) 177 CLR 292, to raise the question of whether the matter should be adjourned but some of the other matters to which I have referred, including the suggestion that the Appellant was procrastinating, had not provided full information to the Legal Aid Commission and that a stay had expired argued as strongly for the view that the time had come for the Appellant's trial to proceed.

14 Furthermore, there was nothing before his Honour to indicate that there was any point in granting an adjournment. In particular, there was nothing before his Honour to indicate that an adjournment would aid the Appellant in obtaining legal representation or that the absence of representation was not the Appellant's own and deliberate fault. In these circumstances, it is impossible to conclude that his Honour erred in not adjourning the trial.

Ground 2

The trial judge erred in allowing the Crown to allege recent possession on the facts in the indictment.

15 The facts relevant to a consideration of this ground are as follows. The Crown case was that an opal and diamond ring was stolen on the weekend of 24 and 25 August 1991 in the course of a burglary from a business trading as Hyde Park Antiques. There was evidence that the ring was worth in excess of $10,000. The Appellant pawned an opal and diamond ring on or about 23 March 1992 as security for a loan of $300. The Appellant never redeemed the ring pawned by him. The Crown case was that the ring pawned was that stolen.

16 There was evidence that when first spoken to by police a conversation to the following effect occurred:-

Detective Hepple: "I want to talk to you above a stolen ring you pawned at Aceben Loan Office in March last year."

Appellant: "I don't know about this."

Appellant's companion: "I'm Mr Sinanovic's agent, he should be made aware of his rights."

Detective Hepple: "Yes, fair enough. You're not obliged to say anything unless you wish to do so but anything you say may later be used in evidence do you understand that?"

Appellant: "Yes, but I'm not saying anything. I don't know what it's about."

17 Later at the Burwood Police Station Detective Hepple said to the Appellant, "The reason you are here is that in March 1992 you pawned an opal and diamond ring to the Aceben Loan Office. That ring was stolen from a large break and enter at a jewellers in the city. Can you remember that?" The Appellant, according to the detective's evidence, replied:-

"Yes, I bought that ring from someone. I don't want to say any more. I have spoken to my solicitor."

Detective Hepple: "Can you tell me where you got the ring from?"

Appellant: "No, I don't want to say anything."

18 There was also evidence that at the time of the committal proceedings the Appellant showed a Detective Bull and Mr Rodwell, a solicitor with the Office of the Director of Public Prosecutions a receipt purportedly for the purchase of the ring. He declined to provide that document saying that he would fax a copy but never did so. There was evidence that Detective Bull's recollection of the amount of that receipt was approximately $1,200 - T92 c.f.T88. Mr Rodwell gave evidence that on that day - T119 of 6/11/97 he made a note of the event. The note became Exhibit P and also refers to the amount being "approximately $1,200".

19 The Appellant gave evidence. He asserted he had bought the ring from a jeweller trading as Bijou D'Art in Newtown or Leichhardt for $1,500.00 and produced a copy of a receipt for that sum which was admitted into evidence. The genuineness of this receipt was the subject of strong challenge and there was evidence which, if accepted, was capable of leading to the conclusion that it was a sham or forgery made by the Appellant.

20 Counsel appearing for the Appellant in this Court submitted that, having regard to the nature of the item the subject of the charge, seven months was just far too long for an inference of guilt to be drawn even if one could conclude that the Appellant had not provided any, or any acceptable, explanation for his possession.

21 The nature of the legal concept of recent possession was explained by the High Court in Bruce v R [1987] HCA 40; (1987) 61 ALJR 603; (1987) 74 ALR 219 as follows:-

"Where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused. Such an inference will be drawn from the unexplained fact of possession of such property and not from any admission of guilt arising from the failure to proffer an explanation. It is the possession of recently stolen property in the absence of explanatory circumstances, which enables the inference to be drawn."

22 In R v Smail (unreported CCA 15 August 1986) Lee J, with the concurrence of the other members of this Court said:-

"The doctrine is concerned with possession of stolen property and at its base is the proposition that possession of stolen property of itself can, in certain circumstances, point the finger of suspicion to the accused, in the sense that it suggests that he may be the thief or the receiver...

In ...cases where the property...is of a kind that it would be expected that the accused would be able to account for his possession, the degree of recency need not be nearly as close to the theft as in the case (of a bank note). There may, however, be a point of time where the relationship in time between the theft and the possession is so remote that the law recognises that it would be unreasonable to require the accused to account for his possession and the doctrine has no application.

That understanding of the doctrine of recent possession which I have set out accords with the approach which was taken in The King v McCaffery [1911] VicLawRp 23; (1911) VLR 92 by the Victorian Full Court. At p95, Their Honours said:-

"That term, however, is a relative term. There is no fixed period of time which in all cases will constitute recent possession. The period is relative to the subject matter which is found in the Prisoner's possession... For example, in the case of a common place thing, like a piece of money, which, even if it were marked, might still pass in the ordinary course of exchange unnoticed, or in the case of those classes of commodities which would challenge nobody's attention when bought in the open market or at the door, the period would be very short... if, on the other hand, the thing found is a thing not commonly passing from hand to hand - a thing which would challenge enquiry and fix the dates in the memory of a man into whose possession it came - in that case the period of time which would be "recent possession" would be a much longer period."

23 Lee J went on:-

"...in 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."

24 In that last mentioned passage, I do not understand His Honour to be suggesting that a judge should never take the question of recency from the jury. It is clear that that is not the law. As was said in Bellamy (1991) 3 A Crim R 432 at 436:-

"The question of whether the Crown is in a given case entitled to invite the jury to draw the inference of guilt will initially involve a decision of law. The evidence called by the Crown may not be such as to permit a finding of possession. Again, the stealing may be so remove in point of time as not to be capable of being regarded as recent. Once these legal boundary lines are crossed, it becomes in every case a matter for the jury to determine the facts."

25 In R v Smail the subject property was a motor vehicle stolen some 5½ months before the police found it in an accused's possession and or, if one relied on statements by the accused as to when he obtained possession of the vehicle, held by him for a couple of months. The court took the view that on either basis the vehicle was "recently" indeed "quite recently" stolen.

26 Once one has regard to the basis of the doctrine, namely "the unexplained fact of possession" and of the nature of the property, even if one takes its value to be that which the accused said he paid viz $1,500, it is impossible to conclude that the seven month period between August 1991 and March 1992 was too long for the Appellant's possession to be regarded as "recent".

27 Furthermore, the instant case was not one where there was no explanation by the Appellant. The jury's verdict indicates that they were not persuaded that the explanation provided was even a reasonably possible explanation for the Appellant's possession of the ring, the subject of the charge. The ground fails.

Ground 3

The trial judge erred in giving a direction to the jury on recent possession and that those directions were confusing and prejudicial.

28 It follows from the conclusion reached in respect of Ground 2 that some directions on the topic of recent possession were appropriate.

29 The directions which His Honour gave to the jury on this topic were as follows:-

"The next matter I just wish to deal with is recent possession, that is a convenient form of legal shorthand, but it may be misleading to you if I do not explain it fully. What is meant is this: if an accused person is found with property in his possession which has recently been stolen, and the accused either gives no explanation as to how he came to have it, or he gives an explanation which you are satisfied could not reasonably be true, then you are entitled to, but need not, draw against him an inference either that he stole it or that he received it knowing it had been stolen. You do not have to draw these inferences. Whether you do so or not is for you to decide.

I referred to an explanation by the accused for his possession of it, that includes everything the accused has said about his connection with the property. You look at the whole of his explanation, or explanations, or any of them.

The mere fact that the accused has not explained his possession of the goods does not of itself give rise to any inference of guilt. He was not obliged to say anything at all to the police. And you will remember that when he was interviewed by the police that was explained to him by the police, and he exercised his right of silence. But you may think that the fact that he had possession of the stolen goods in the circumstances proved does indicate that he is guilty unless it is explained. If you think that, and if you also find that he has given no reasonable explanation for his possession of the goods then you may find him guilty. Now what I am saying to you about recent possession applies to both stealing and receiving.

Before you embark upon this approach to the evidence, you must first be satisfied beyond reasonable doubt that the accused was in possession of the property and that it had recently been stolen. There is no rule about what length of time qualifies as recent. It depends on the circumstances generally, and particularly on the nature of the property stolen.

Here the theft took place at the end of August or towards the end of August 1991, and the pledging took place on 23 March 1992, so there is about six to seven months gap in that time. You have to consider and decide whether the time that has elapsed between the theft of the property and the finding of it in the possession of the accused is such a short time that you are prepared to draw the inference of guilt from such fact.

When considering this question, you should take into account the value of the property in question and whether it is something that you would expect to change hands quickly. Thus it might be easier to draw the inference of guilt if the property stolen was a valuable painting and if it were a bank note or a second hand car, or just a common household item.

For example, if you happened to have the Mona Lisa painting in your possession, you might think that a whole lifetime would constitute recency, and if some 20 years after the theft it was found in someone's vault or house, then that would still be recent if you assume that the Mona Lisa painting is so well known world wide that any one who sees it would recognise it.

On the other hand, if we were talking about a common hammer that you could buy from BBC or any hardware shop, then quite clearly a lapse of six or seven months you might think would fall outside any understanding or comprehension of recent possession in that case.

If you are satisfied about these two issues, namely the question of the explanation or the question of recency, you should then proceed to ask yourself whether the circumstances call for some explanation from the accused as a matter of common sense. If you consider that no explanation was called for, you can forget all about these issues of recent possession.

If however you consider that the circumstances did call for an explanation, you then proceed to consider his explanation, if any. If you consider that his explanation could be true, then that would be an end to the matter so far as recent possession is concerned. You do not have to believe his explanation before rejecting the Crown's argument based on recent possession. Even if you have rejected the argument based on recent possession, you still have to consider all of the other evidence upon which the Crown relies."

30 It may be noted that the vast bulk of what His Honour said in the passage I have quoted repeats, almost verbatim, suggested directions in the judges' bench book. Only that in bold does not.

31 The jury retired to consider its verdict at 3.14pm on the afternoon of 12 November. From a note they sent, it seems likely that their deliberations on that day were for a limited time only. Proceedings were adjourned to 9.30am on the following day. The commencement of the transcript on 13 November records that His Honour had received questions from the Jury asking that he explain the difference between the offences of stealing and receiving stolen goods and that he "explain the concept of recent possession and how it relates to either stealing or receiving stolen goods?".

32 In due course the jury were recalled and His Honour repeated most of what he had said on the previous day on the topic of recent possession. He went on:-

"This may be of assistance if I put it to you this way: if on the whole of the evidence you are satisfied that the accused had stolen goods in his possession at such a time after they were shown to have been stolen, which is 25 August 1991, let us say, that it is probable that he stole or received the ring, that is feloniously received the ring, criminally received the ring, that is evidence which is capable of supporting the conviction because it is a permissible inference that he either stole or received it.

If that possession remains unexplained at the end of the case that is a circumstance which makes it easier to draw the inference of guilt but nevertheless it does not require conviction. It remains unexplained in a relevant sense if an explanation which the jury is invited to accept is rejected. You are invited to accept the explanation that the ring was bought on 10 February 1992 at Bijou D'Art. If you do not accept that explanation it remains unexplained - that is the possession remains unexplained in a relevant sense.

If the explanation tending to show that the possession was innocent is accepted there must be an acquittal. If the jury, if you are left in doubt, that is you think the explanation may be true, then similarly the accused is entitled to acquittal because the Crown would not have satisfied you beyond reasonable doubt that he either stole it or received it knowing it was stolen, because you think his explanation of how he obtained it may be true.

So if the jury is left in doubt, that is they think the explanation may be true, then similarly the accused is entitled to acquittal. ...

At the end of the directions in respect of recent possession I said this: ..."

33 His Honour then repeated the last 3 paragraphs which I have quoted from his original directions.

34 The complaint that the directions His Honour gave to the jury were confusing and prejudicial was particularised in a number of respects. One was that they did not address the particular circumstances of 7 months for an opal ring. However, it is clear from the directions I have quoted that his Honour did specifically refer to a period of 6 to 7 months. In addition, there was during the hearing sufficient attention to the nature of the ring and its value to make it certain that these features could not have escaped the mind of any juror.

35 It was further submitted that the example of the Mona Lisa would more likely to have confused the jury than not. It may well be that another, somewhat closer, example might have been chosen but in the totality of what His Honour had to say I do not think this complaint to be of significant weight. Criticism was also made of the passage I have quoted from His Honour's response to the jury's question with its reference to "probable that he stole or received the ring", it being submitted that this passage did not lay emphasis on the required standard of proof.

36 Insofar as the passage, shorn of explanation or duplication, says

"if... you are satisfied that the accused had stolen goods in his possession at such a time after they were ... stolen ... that it is probable that he stole or... criminally received the ring, that is evidence which is capable of supporting the conviction because it is a permissible inference that he either stole or received it.",

demonstrably it does have its problems. However, given the explanation and duplication in the full passage, I doubt whether the jury would have understood the passage as, reduced to its essentials, it reads. Furthermore, when regard is had to the paragraphs which immediately followed and which I have, in whole or in part, set out and numerous other passages wherein the jury was correctly directed as to the burden and standard of proof, I remain unpersuaded that there was any risk at this passage having misled the jury.

37 Criticism was also made of that part of His Honour's summing up and response to the jury's question as dealt with the topic of recent possession in its totality, it being suggested that the jury would be at a loss to understand what the concept was because of the range of possibilities and examples given. There is, I think, more weight in this argument, particularly when one has regard to the fact that the jury's question indicates that at least one of them did not understand the matter as originally explained and His Honour's response to a very great degree but repeated what he had said earlier.

38 Even with the benefit of both some knowledge of the topic and the printed page, I find the totality of the passages I have quoted difficult to comprehend, unless or until many of the sentences or parts are studied singly or in small groups. With respect to the author of the relevant part of the bench book and His Honour, the mixture of the statement of the principle, reservations from and exposition upon exposition of it, reference to the facts, examples, and repetition is calculated to confound rather than assist a jury. I venture to suggest that the matter would have been far clearer if His Honour had, for example, done little or nothing more than repeat the passage I have quoted above from the judgment of the High Court in Bruce v R (possibly omitting the second sentence).

39 At least on the basis that His Honour's directions on the topic of recent possession were confusing, I regard this ground of appeal as made out.

Ground 4

The verdict was unsafe and unsatisfactory on the evidence.

40 A consideration of this ground requires some further reference to the evidence. There was no dispute concerning the matters I have referred to in the first paragraph in my consideration of ground 2 except the Crown's contention that the ring stolen and that pawned were one and the same.

41 That they were the same was asserted by a Mr Byrne, one of the proprietors of Hyde Park Antiques and by a Mr Cranney, a person who had placed the ring with Hyde Park Antiques on consignment. There were significant similarities in the descriptions contained in valuations said to be of the ring stolen and the record of the pledge. On the other hand, the manager of Aceben Loan Office said that the ring referred to in the valuations was not that pledged and which he had valued.

42 The ring stolen was said to have been in or accompanied by a distinctive box. The pledge record referred to a box. Clearly, although there was an issue on the evidence of whether the ring pawned by the Appellant had been, and was that, stolen there was plenty of evidence upon which the jury was entitled to find adversely to the Appellant on those issues.

43 On the issue of whether when the Appellant received the ring he knew or believed that it had been stolen, again there was a wealth of evidence adverse to him on which the jury were entitled to find as they did. In the light of the warning that the Appellant was given, no inference could be drawn against him arising from any failure to answer the police questions but the jury were entitled to take account of what the Appellant did say. There was furthermore the evidence about the Appellant declining to provide the receipt, and offering to fax a copy but failing to do so. There was the photocopy receipt produced at the trial. Although on the letterhead of "Bijou D'Art" the receipt was in a form hardly inspiring confidence. When considered in the light of the evidence just referred to, and some other evidence suggesting that the receipt was in the Appellant's own handwriting, it may well have been regarded by the jury as false. There was the evidence of a difference between the amount stated in the receipt originally shown and that in the copy finally tendered. Finally, there was the Appellant's own evidence of buying a ring for $1,500, pawning it a month later for $300 (at 17% interest per month) and not redeeming it. The relativity of these 2 amounts and the shortness of time between paying and pawning makes this evidence border on the incredible.

44 There was thus a wealth of evidence upon which the jury were entitled to find the charge of receiving proved. I am not persuaded that they ought to have entertained a reasonable doubt as the test has been relevantly explained in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439. This ground fails.

Ground 5

In this trial the prosecution suggested that the Appellant was lying when he said he purchased the item of jewellery on an occasion with a Tony Nastase, when, in the knowledge of the Crown, in another trial (95/11/132) a few months later, before Acting Judge Horler, a Crown witness, Antonio Nastase, was to give evidence of being with the Appellant at the same jewellery shop in Leichhardt where some jewellery was purchased.

45 The propriety of the Crown's questions in the respect objected to fell to be judged by the information the Crown had on the topic at the time of this trial, not by what some person, Crown witness or otherwise, may have said or indicated that he would say on some occasion later. There is no substance in the ground.

46 In fact, all the Appellant said in chief in the trial from which this appeal is brought concerning Mr Nastasi was that he went on an occasion before or after the time of the receipt with Mr Nastasi to the shop of "Bijou D'Art" and that Mr Nastasi could verify where the shop was situated. The Appellant said that Mr Nastasi might be at court on the following day to give evidence. He was never called.

47 In a later trial, that before Horler DCJ and which is the subject of the next appeal, Mr Nastasi's evidence on the topic was given during the course of cross-examination by counsel for the Accused, Mr Nastasi said that he had been with the Appellant to a jewellery shop at the corner of Norton St and Parramatta Rd, Leichhardt. The address on the photocopy receipt of "Bijou D'Art" was 387 Parramatta Rd, Leichhardt. He did not identify the ring as a piece of jewellery purchased by the Appellant on that occasion.

48 There is thus nothing to suggest impropriety by the Crown arising from any knowledge it may have had as to what Mr Nastasi's evidence might be on the topic of the Appellant's purchase of jewellery.

Criminal Appeal Act s6

49 It remains to consider s6 of the Criminal Appeal Act, which provides that even if the Court is of the view that the points raised by an appeal might be decided in favour of an Appellant, the Court may dismiss the appeal if the Court considers that no miscarriage of justice has actually occurred.

50 Although His Honour's directions as to recent possession were, in my opinion confusing and contained error, as I have said, the Appellant did in fact provide an explanation for his possession. The opening and concluding paragraphs of His Honour's original directions as to the law in this regard and which I have quoted were a model of clarity. So again were the concluding paragraphs I have quoted from His Honour's instructions to the jury when they asked for further explanation.

51 Considered against those, it is an inevitable inference from the jury's verdict that they rejected the Appellant's statements and evidence as providing even possible explanations for his possession of the ring. In numerous places in his summing up, his Honour made it clear to the jury that before they could convict the Appellant they had to be satisfied beyond reasonable doubt of each ingredient in a charge. Once recognition is given to that fact also, I am satisfied that no miscarriage of justice has occurred and that the appeal should be dismissed.

Other Matters

52 There are 2 additional matters to which I should refer. Firstly, after the decision was reserved in this and the three other appeals heard at the same time, the Court received further submissions and supporting documentation apparently from Mrs Sinanovic. Details of these, and my reasons for regarding this material as of no assistance to the Appellant, are referred to in my Reasons in proceedings 60564 of 1997.

53 Secondly, having regard to my remarks concerning the Bench Book, it seems to me that I should include in my Reasons a form of directions which seem to me better. If the directions are oral, I would suggest the following:-

"Where an accused person is in possession of property which is recently stolen, a jury may, but is not obliged to, infer as a matter of fact, in the absence of any reasonable explanation, that the accused person was the thief or knew at the time of acquisition that the property was stolen.

In judging (i) whether the stealing was recent, (ii) whether there has been any reasonable explanation, and (iii) whether the inference of guilt should be drawn, all the circumstances should be considered. These include the nature and value of the property, whether the circumstances of its acquisition are likely to be remembered and what is known of the circumstances of acquisition by the accused.

An explanation is not reasonably to be expected if its absence is due to an accused exercising his right not to respond to questions from persons known by him to be police officers."

54 An alternate and fuller direction, drafted in a form suitable for giving in writing, is:-

"1. Where a jury is satisfied beyond reasonable doubt that -

(i) an accused person has been found with property the subject of the charge in his possession

and

(ii) that property has been stolen

then in circumstances identified below, a jury may, but is not obliged to, infer as a matter of fact that the accused person was the thief, or knew at the time of acquisition that the property was stolen.

2. The circumstances are:-

(i) That the stealing was recent,

and

(ii) The accused has given either,

(a) no explanation as to how he came by the property notwithstanding circumstances where an

explanation is reasonably to be expected.

or

(b) an explanation which the jury is satisfied could not reasonably be true.

NOTE:

In judging (i) whether the stealing was recent, (ii) whether there has been any reasonable explanation, and (iii) whether the inference of guilty should be drawn, all the circumstances should be considered. These include the nature and value of the property, whether the circumstances of its acquisition are likely to be remembered and what is known of the circumstances of acquisition by the accused.

An explanation is not reasonably to be expected if its absence is due to an accused exercising his right not to respond to questions from persons known by him to be police officers."

55 The paragraphs referring to an Accused's right to silence may obviously be omitted in appropriate circumstances.

56 The formulation of these directions reflects my view that it is unnecessary to go much beyond the first sentence of the explanation of the concept of recent possession given by the High Court in Bruce v R [1987] HCA 40; (1987) 61 ALJR 603 and which I have quoted.

IN THE COURT OF

CRIMINAL APPEAL

No. 60624 of 1997

CORAM: WOOD, CJ. at CL.

HULME, J.

GREG JAMES, J.

Monday, 11 December 2000

REGINA v. HAKIJA SINANOVIC

JUDGMENT

57 GREG JAMES, J: In this, as in these other appeals, I have had the benefit of seeing a draft of the judgment of Hulme, J.

58 I am indebted to his Honour for his discussion of the grounds of appeal and the background circumstances.

59 Whist I agree with his Honour's observations as to the potential of passages in the trial judge's directions, taken discretely or considered out of the context of the general directions concerning onus of proof, standard of proof and the concept of inferences to be confusing, and whilst I agree that a more succinct and precise statement of the general concept of recent possession might have been clearer, I conclude that, having regard to the examples his Honour gave, which were directed to ensuring the concept was clarified by the contrast between a common piece of property and a piece of unique and notorious artwork on the facts of this case, there was no real prospect that the jury would have been diverted from application of the true principle.

60 Such confusion as the directions contained and as might have been engendered in the mind of the jury, would only, in this case, have operated to the advantage of the appellant. In particular I note, that the directions did not include any element which might have suggested to the jury that they could use a finding that the accused's explanation was deliberately false and the receipt he produced was a forgery and sham as evidence that the appellant well knew that the goods he had received were stolen.

61 On a careful examination of the summing up as a whole, I do not find that there has been any risk of a miscarriage of justice.

62 I agree with Hulme, J. that the appeal should therefore be dismissed.

LAST UPDATED: 14/12/2000