Barry Francis Bond v Ronald Macfarlane and Anor Sca [1990] ACTSC 36; (1990) 100 FLR 38 (18 October 1990)

SUPREME COURT OF THE ACT

BARRY FRANCIS BOND v. RONALD MacFARLANE and ANOR
S.C.A. Nos. 32-38 of 1990
Appeal from Magistrates Court
[1990] ACTSC 36; (1990) 100 FLR 38

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Appeal from Magistrates Court - Charge of possession of stolen vehicles - Nature of appeal - Reception of fresh evidence - Similar fact evidence - Character evidence - Identification evidence

Crimes Act 1900 s.113

Magistrates Court Act 1930 (ACT) s.209, sub-s.214(2), (3), (4)

Campbell v Fortey (1986) 85 FLR 462; 24 A Crim R 386

Mattingley v Tuckwood (1989) 88 ACTR 1

Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193

Pilkinton v Hatty (Foster J; 23/7/90; unreported)

Alexander v R [1981] HCA 17; (1981) 145 CLR 395

R v Hallam (1985) 18 A Crim R 221

R v Coleman (1987) 87 FLR 175

R v Smith (1984) 1 NSWLR 462; (1987) 7 NSWLR 444

R v Brownlowe (1986) 7 NSWLR 461

R v Murphy (1985) 4 NSWLR 42

Perry v R [1982] HCA 75; (1982) 150 CLR 580

Thompson v R (1989) 63 ALJR 447

Harriman v R (1989) 63 ALJR 694

Hoch v R [1988] HCA 50; (1988) 165 CLR 292

Bruce v R [1987] HCA 40; (1987) 61 ALJR 603

Wanganeen (1988) 38 A Crim R 187

HEARING

CANBERRA
18:10:1990

Counsel for the Appellant: Mr H. Selby

Instructing solicitors: Messrs Macphillamy Cummins and Gibson

Counsel for the Respondent: Mr J. Sabharwal

Instructing solicitors: Director of Public Prosecution

ORDER

The conviction and sentence be set aside in each appeal.

A verdict of acquittal be entered.

DECISION

On 13 December 1989 the appellant was found guilty by Mr Ward, Magistrate, of the following offences (in short form):-
. (2566/88)

On 26/4/88 retain stolen vehicle YPS 538, knowing
it to be stolen.
. (3156/88)
Between 1/12/87 and 31/12/87 steal money to the value of $7,600.00
from Christine Clout.
. (3157/88)
Between 16/12/86 and 22/10/87 possess stolen vehicle
YPK 478, knowing it to have been stolen.
. (3159/88)
Between 2/3/87 and 25/4/88 possess stolen vehicle
YQF 905, knowing it to have been stolen.
. (3160/88)
Between 10/3/87 and 25/4/88 possess stolen vehicle
YPQ 647, knowing it to have been stolen.
. (3161/88)
Between 24/3/87 and 25/4/88 possess stolen wheels and tyres (5)
knowing them to have been stolen. (These wheels and tyres
allegedly belonged to 1983 Ford motor vehicle MQD 160 traded in to
Gerald Slaven Motors in March 1987.)

2. Of the seven offences referred to above, six alleged conduct contrary to s.113 of the Crimes Act 1900 (handling stolen property). The maximum penalty on indictment for each of those offences was 14 years imprisonment. The remaining offence alleged conduct contrary to s.99 of that Act (theft). The maximum penalty for that offence is 10 years imprisonment.

3. The explanation for the latter allegation seems to be that the sum in question was said to be the price paid by Ms Clout for a stolen vehicle, ie YPN 814. That vehicle had been stolen on 3 April 1987. In essence, therefore, the allegation was that the appellant had received five stolen vehicles, the wheels of another and part, at least, of yet another.

4. It was alleged, in essence, that the appellant, on receiving a stolen vehicle paid a sum of $1,500.00 or $2,000.00 for it. He then, it was alleged, obtained an engine and compliance plates from elsewhere, replaced the trim and repainted the stolen bodies and resold the resultant hybrid vehicle. Chassis and engine numbers were, it was said, changed as necessary to conceal the identity of the stolen vehicles.

5. Incriminating evidence was located on the appellant's premises. Three of four engine blocks on which the numbers had been obliterated were shown to have originally had engine numbers of stolen vehicles, ie YON 814 (Ridley vehicle), YPQ 647 (Catmull vehicle) and YQF 905 (Blanche vehicle). In addition, whilst there were points of identification which were in issue, some maps belonging to the Ridley vehicle were located in the appellant's garage. Also found there was a map belonging to the Catmull vehicle, a service book for the Blanche vehicle and a map from that vehicle.

6. Worst of all, from the appellant's viewpoint, vehicle registered as YPS 538 (Bridge vehicle), stolen on 16 February 1988 was found, virtually intact, in the front garage of the appellant's home.

7. Even without the other points of identification the owners of the respective stolen cars were able to depose to, the picture was a very incriminating one. The learned Magistrate found the offences proved. He sentenced the appellant on 25 January 1990 to a total of six years imprisonment with a non-parole period of three years. The sentences were dated from 13 December 1989. The appellant was released on bail pending his appeals.

8. The appeals came on for hearing on Monday, 30 July 1990. Mr Selby, for the appellant, sought leave to call fresh evidence. This evidence, he said, would demonstrate that the Ridley, Catmull and Blanche vehicles were wrongly identified with YRQ 548, YRQ 854 and YRH 821 respectively. He wished also to call evidence to demonstrate that the five wheels and tyres could not have belonged to vehicle YPK 478.

9. Without the acceptance of the identification evidence as to the bodies of the Ridley, Catmull and Blanche vehicles, it is clearly less likely that convictions for handling of stolen property charges in respect of those vehicles could be sustained. There would be insufficient evidence to sustain a conviction on matter 3161/88 (five wheels and tyres). The theft charge would similarly be weakened.

10. The power to receive such evidence is to be found in s.214 of the Magistrates Court Act 1930 (ACT). Ordinarily, the court has regard only to the evidence before the Magistrates Court. It does, however, have the power itself to draw inferences of fact (see sub-s.214(2)).

11. Sub-s.214(3) provides (relevantly)

"...The Supreme Court shall...
(a) if it thinks it necessary or expedient to do
so in the interests of justice -
(iii) receive the evidence, if tendered, of
any witness;..."

12. Sub-s.214(4) provides (relevantly)

"Where evidence is tendered in an appeal to which
this section applies, the Supreme Court shall,
unless it is satisfied that the evidence would not
afford any ground for allowing the appeal, receive
the evidence if -
(b) ...The evidence was not adduced in those
proceedings and there is a reasonable
explanation for the failure to adduce it."

13. An explanation for the failure to adduce the proposed evidence was tendered. It is not the case, in my opinion that the party seeking to adduce evidence under subs.214(4) must show that it was not possible to have adduced that evidence in the original proceedings. No doubt an appellant who deliberately refrained from adducing the evidence in question would have difficulty persuading this court that there was a "reasonable explanation". However, inadvertence or even a failure to appreciate the likely significance of the evidence, may well be a "reasonable explanation".

14. In this case, the expert who gave evidence before the learned Magistrate did not carry out as thorough an examination of the vehicles and other property in police custody as he has since done. He said he felt previously pressured to hurry his inspections. Whether that was intended or not, I cannot say. No doubt, in part, matters then seemingly unimportant became more so by reason of the learned Magistrate's findings. In any event, it seemed to me, the explanation was a reasonable one. A similar comment applies to evidence as to the existence of the elusive "Mark" and Laurie". Those were persons the appellant said supplied him with vehicle parts, some of which were in, or accompanied, boxes which contained or had contained stolen items. "Mark" was said by the appellant to have left the stolen vehicle YPS 538 in the appellant's garage.

15. Whether or not sub-s.214(4) applied, I considered that sub-s.214(3) would allow the tender of such evidence if it was in the interests of justice to do so. That discretion is not fettered by the terms of sub-s.214(4). (See Campbell v Fortey (1986) 85 FLR 462; 24 A Crim R 386 per Miles C.J.)

16. I was of the opinion that the nature of the fresh evidence was such as might provide a fair opportunity for the appellant to be acquitted of some or all of the charges of which he had been convicted. It was therefore, in my opinion, in the interests of justice that the proposed evidence be heard and I ruled accordingly.

17. Some further evidence was given by the appellant. In part, this was repetitive of the evidence he gave in the Magistrates Court. In part it expanded on the manner in which the appellant claimed to have built YRQ 548, YRQ 854 and YRH 821. He also addressed the various points of identification which had impressed the learned Magistrate.

18. Evidence was given concerning the existence or otherwise of "Mark" and "Laurie".

19. Mrs Marlene Coggan of Jugiong gave evidence. She is the sister of Mr Bond's ex-wife. She gave an account of visiting her sister and staying with her whilst the appellant's marriage was still on-going. When Mr and Mrs Bond were absent, a man arrived delivering a box of miscellaneous items. It was consistent with a box of parts and other items the police found later at the Bond residence. He said his name was "Mark". His description was not materially different from that which the appellant gave of "Mark".

20. A next door neighbour, Mrs van der Kley, gave evidence. She told of an incident in 1987 when a body shell was delivered to the Bond residence. Two men were carrying out the delivery. It is possible that the two men described were "Mark" and "Laurie". The evidence she gave does not enable that fact to be regarded as positively established. It certainly demonstrates that a body shell was delivered to the Bond residence during 1987.

21. It was not suggested that the two witnesses referred to were fabricating their evidence or had any motive to give false evidence favouring the appellant. I accept their evidence at its face value.

22. Mr David McCauley gave further evidence. His evidence addressed the points of identification claimed for the Ridley, Blanche and Catmull vehicles.

23. As to YRQ 548 - (alleged to be, basically, the Ridley vehicle, disguised with parts from Wagga vehicle KZX 914 lawfully bought as a wreck by appellant). He said he rubbed back various parts of the body and body panels to the metal. He concluded that the base colour (after undercoat) of the entire body shell had been blue. The doors and other panels had been white. There had been major damage roughly repaired to the right rear door section of the body shell. It was clear that there was no sign of repairs to the boot area. The front and rear bumper bars were exchange bars. The front grill was non-standard. The front windscreen was non-original. The trim was of an XE Falcon. There was no evidence of a "coffee" stain. There was a "grease" stain which appeared not to have been rubbed in.

24. The blue colour that seems to have been the original blue was or was close to "Atlantic blue". It does not correspond to the "Ice blue" said to be the colour of the Ridley vehicle. There is no evidence of any white colour other than "Stark white". The white colour of the Ridley vehicle had been "Sno-white".

25. As to YRQ 854 - (alleged to be, basically, the Catmull vehicle, disguised with parts from damaged TX-50, formerly Gentry's, and the Shepherd Ford vehicle's trim.)

26. The Catmull vehicle had been a 1985 model. The Shepherd Ford vehicle was a 1982 XE Falcon.

27. YRQ 854 is basically a 1986-8 model XF Falcon. It is an unleaded vehicle. It is fitted with XF trim. Mr McCauley gave evidence, which is unchallenged, of the differences in the respective trims. It appears the door panels are from various different vehicles, although none are "factory" spares. The bumper bars are not standard for an XF model.

28. As to YRH 821 - (alleged to be, basically, the Blanche vehicle, disguised with parts from damaged ZZA 793, formerly an AFP vehicle). The Blanche vehicle was a 1985 model S- Pak Falcon, "Sno-white" in colour. One point of identification was said to be a hole in the front bumper bar. (There was a repair mark on YRH 821.) It had been a manual vehicle.

29. Mr McCauley noted the basic vehicle was a 1986 unleaded model. The bumper in question was a 1986 model. It had no hole in it. The repair it had was of superficial damage. There was no sign that YRH 821, which was an automatic, had ever been a manual.

30. As to the Five Mag. Wheels and Tyres - Mr Ernie Douglas of Central Tyre Service, noted that each of the five tyres said to have come from the Gerald Slavin vehicle were "V" rated. This is the highest speed performance rating for tyres. The Gerald Slavin vehicle was positively shown to have been fitted with "H" rated tyres. They would have been so marked at manufacture.

31. In reply, the prosecution called Ms Alison McMahon. She was one of the persons involved in "L and A Spares". The appellant said "Laurie" had claimed to work for "L and A Spares". She kept the books. The firm had not employed a "Laurie" or a "Mark". I observe that this evidence was not challenged. However, if, as the appellant's case suggests, "Laurie" and "Mark" are thieves, it is not surprising that they would lie about their connections with an apparently legitimate business.

32. Ms Susan Pocock was also called. This was in response to a claim by the appellant that he had purchased some car parts, including seats from "John and Sue" at an address in Penrith. Ms Pocock denied ever meeting the appellant. She did not have a young boy or a dog. The appellant had noted both at "John and Sue's" house.

33. Nevertheless, it is remarkable that, at the address nominated by the appellant in Penrith, there had been, at the relevant time, a "John" and a "Sue". His description of the inside of "Sue's" house was, Ms Pocock conceded, accurate. "John" had had for sale, inside the house, a pair of bucket seats. The appellant claimed to have purchased (inter alia) seats from "John".

34. It seems to me that, on balance, Ms Pocock's evidence confirms the appellant's evidence rather than the contrary. I have to bear in mind, of course, that the appellant is charged by police with receiving stolen property. Any person volunteering information about selling him car parts otherwise than by open auction or through commercial spare parts dealerships could well fear they may be suspected of being part of a chain of sale for parts of stolen cars.

35. I do not know if Ms Pocock's evidence was deliberately misleading but it does not strike me as convincing when compared with the appellant's account.

36. Mr Michael O'Toole was produced by the prosecution. It had seemed, originally, that the prosecution was suggesting that he was fictitious. When he appeared, he fitted remarkably closely the description given by the appellant. The appellant had said he had purchased one of the engines found in his garage from a "Michael O"Toole".

37. Mr O'Toole denied knowing or meeting the appellant. He said he had sold no engine to the appellant from the address referred to by the appellant or otherwise. He said he was in gaol in August 1987, having been in custody since early June that year. He had not sold or advertised car parts for sale from Excelsior Street, Marylands. He conceded that his mother resided at the flats shown at Excelsior Street but said it was after 1987 that she commenced to reside there. He also conceded a number of previous convictions for car theft. He admitted that he had converted some car parts from stolen vehicles to his own use including a stolen engine.

38. It was clear that if what the appellant had said was true, then Mr O'Toole had received stolen vehicle parts, at the least. Mr O'Toole denied knowing "Mark" but, if he was part of the distribution chain for stolen car parts, as the defence case would suggest, he would be highly unlikely to admit it. His primary objective undoubtedly would be to avoid trouble for himself.

39. The production of Mr O'Toole, and the absence of evidence corroborating his denial of any involvement with the appellant, is powerfully supportive of the appellant's claim that he bought an engine from Mr O'Toole. I place no reliance on Mr O'Toole's denials of knowing or meeting the appellant.

40. Edward Gentry III gave additional evidence. He had been the owner of TX-50. This was the damaged vehicle said to have been bought to disguise the Catmull vehicle. He denied he gave any enquirer after TX-50 the appellant's phone number. This was intended, no doubt, to rebut the appellant's claim that a "Wayne" or "Warren" Williams offered him an engine for sale after first seeking to buy parts of TX-50 from him. However, Mr Gentry agreed that any enquirers would have been directed to Aerial Taxis who sold the salvage of TX-50 to the appellant and had acquired salvage rights from him. I am unable to conclude from this that "Mr Williams" did not obtain the appellant's phone number via Mr Gentry, though I accept that Mr Gentry did not give the appellant's phone number directly to anyone.

41. The appellant, of course, did not and could not claim that he did. He merely said "Williams" had told him he had done so in terms that could amount to a false claim by "Williams" or merely a shorthand way of referring to an enquiry satisfied by Aerial Taxis. Mr Gentry agreed there were enquirers.

42. Mr Barrie, from Ford Motors, gave useful evidence as to how a two-tone vehicle, such as the Ridley vehicle would have been produced. He was unable to say if the Blanche vehicle had been converted from a manual to an automatic. The boot mat from the Catmull vehicle had, he said, a small flap which had been torn off (or been roughly cut).

43. Surprisingly, Mr Barrie was not asked to express a view about the assertions made in exhibit H (Vol 1) that the supposed Ridley vehicle was a basic "Atlantic Blue" not "Ice Blue". He was not asked to find a "Sno-white" rather than "Stark White" colour on it. He did find blue colour but he did not say what shade of blue, on the inside rim of each door below the locks. If the Ridley vehicle was the two tone stolen car, substantially unaltered, there should have been, it seems, either a "Sno-white" over "Ice Blue" at that location or, depending on the process, merely a "Sno-white". No acetone test or "feathering" to bare metal was done to test or disprove Mr McCauley's and the appellant's assertion that YRQ 548 was not, and could not have been, merely the Ridley vehicle in disguise.
GENERAL APPROACH

44. The appellant's appeals to this court are brought pursuant to s.209 of the Magistrates Court Act 1930. Sub-s.214(2) applies to those appeals. As Kelly J noted in Mattingley v Tuckwood (1989) 88 ACTR 1,

(11) "An appellate court which hears an appeal on
documents should generally defer to the conclusion
of the lower court or tribunal as to the
credibility of witnesses. It should depart from
this principle only when the findings of the lower
court or tribunal, based on its conclusion as to
the credibility of witnesses, are clearly wrong on
grounds other than credibility, such as
inconsistency with established facts or accepted
evidence, inherent probability or error of law."

(See also Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193; Campbell v Fortey (1986) 85 FLR 462; 24 A Crim R 386; Pilkinton v Hatty (Foster J; 23/7/90; unreported.)

45. In this case, of course, considerable additional material was tendered, including oral evidence from the appellant.

46. Before commenting on the credibility or otherwise of the appellant, I should say something as to the evidence of identification of the allegedly disguised vehicles (ie YRQ 548 - Ridley vehicle; YRH 821 - Blanche vehicle; YRQ 854 Catmull/Shepherd Ford vehicle). YQH 906 was claimed by the appellant to be C*116 done up and sold to Mr Marriott. It was alleged by the prosecution that it was, in truth, the Shepherd Ford vehicle, (a vehicle sold to Shepherd Ford by a Mr Atteia).

47. The prosecution case relied to a considerable extent on the identification evidence given by the previous owners of the stolen motor vehicles. They were each identifying vehicles that were production line items. The vehicles they saw looked different from those they had owned. Clearly, they each approached the task by ignoring the points of dissimilarity and looking for points of similarity.

48. It is also clear that some of the points of similarity, real as opposed to those imagined, were explicable by reference to other possible hypotheses, including merely the receipt of stolen parts of vehicles.

49. Even apart from the inferences following from the fresh evidence, in my opinion the learned Magistrate misdirected himself in looking at and being influenced by a concatenation of supposed odds for and against the existence of points of identification in relation to the Ridley vehicle, the Catmull vehicle and the Blanche vehicle.

50. An example of how dangerous this process of reasoning is is demonstrated by p 20 para 8 of the learned Magistrate's reasons for decision where he noted there was "similar damage" on the Catmull front bumper. The most elementary examination of the inside of the bumper shows it did not have the damage described by the Catmulls. A chance of "5:1" or "a more accurate quotation would be 100:1", as asserted by the learned Magistrate, proves to have been of no help at all.

51. The evidence of identification witnesses must be approached with extreme caution. The identification of mass-produced goods such as motor vehicles is no less difficult than identification of suspects by appearance or voices (see, eg Alexander v R [1981] HCA 17; (1981) 145 CLR 395; R v Hallam (1985) 18 A Crim R 221; R v Coleman (1987) 87 FLR 175.) The voice identification warning has some guidance to offer in the case of chattel identification. If the points of identification are very distinctive, such as identification numbers or symbols, they would be good evidence of identity as also if the object is itself distinctive such as an original oil painting. It is particularly necessary to look for such points when no "identification parade" is possible (see, eg R v Smith (1984) 1 NSWLR 462; (1987) 7 NSWLR 444; R v Brownlowe (1987) 7 NSWLR 461).

52. There were, of course, items which could be identified positively (eg engines on which an identification number could be raised, maps and folders upon which symbols and writing had been placed). Other items were not inconsistent with having been part of the stolen vehicles but were not particularly distinctive, eg that trim was a similar colour, that certain tyres were of a similar make, that panels (loose) were of a similar colour. Others were of no value. For example, a lack of ashtray, or a scratch usually appearing in time by reason of design imperfection (as on bonnets or black trim). Some alleged identification points simply did not exist in fact or were inconsistent with the vehicle in question.

53. It was vital to be certain whether entire stolen vehicles passed through the defendant's hands "holus bolus" or whether it was only stolen car parts which passed through his hands. If it was the former, a conclusion as to guilt would be irresistible. If the latter, the result must be very different.

54. One factor which seems to me to have been accorded too little weight by the learned Magistrate was the appellant's previous good character. Even had the appellant knowingly received stolen cars, there was no evidence of any larger scale operation than that represented by the charges. That evidence did not require a conclusion that the appellant instigated or was the "linchpin" of a car stealing racket. There was no evidence requiring that conclusion. The character of the appellant was, on the evidence, excellent. Even if he had received stolen vehicles, a proper conclusion consistent with the character evidence was that it was likely that he was tempted to offend by others, such as "Mark" and "Laurie", rather than the contrary. There was no such evidence of unexplained wealth such as would support the view that he was the organizer of a large scale car stealing racket. The evidence of character should have lead to the adoption of a view of the evidence least blameworthy on the part of the appellant consistent with the facts as found. (See R v Murphy (1985) 4 NSWLR 42, 54.)

55. When the police raided the appellant's premises he had three vehicles of his own and the vehicle YPS 538. There were up to six vehicles at various stages of building or sale. There had been, since 1985, 12 vehicles that passed through the appellant's hands. Of those, eight were clearly not stolen vehicles. It would have been simple for police to have determined if he had unexplained wealth or a larger involvement with motor vehicles passing through his hands. There was no such evidence.

56. The theory that the appellant was the linchpin of a large scale vehicle theft ring was clearly untenable, even apart from the character evidence.

57. It is necessary to examine the evidence to determine what may be regarded as safely established. In so doing, it is permissible to have regard to the facts proved on one charge to form a view about, a factor such as guilty knowledge in respect of another charge. Possession of various stolen items can support a finding of a guilty mind where possession of only one item would not. (See Perry v R [1982] HCA 75; (1982) 150 CLR 580; Thompson v R (1989) 63 ALJR 44, Harriman v R (1989) 63 ALJR 694.) Nevertheless, caution should be exercised in two respects that are relevant to the present case. The first is the general admonition against placing too much weight on the improbability of a sequence or concatenation of events (see, eg Perry v R supra, 594 per Murphy J). Thus the fact that the appellant gains one item of stolen property in the course of dealing with a large number of items, most of which are not stolen, does not render it more or less likely that some other stolen item or items will appear in the same or another batch of items. I do not know what proportion of privately circulating spare parts have come from stolen cars. It seems to me that the likely fate of unrecovered stolen cars is that the offenders will break them down for parts and sell off those parts as quickly as possible. It is highly improbable that a stolen car would be retained in specie for the world to see or that the thieves would fail to avail themselves of such an obvious means of gaining some profit. It would clearly be a safer course than attempting a sale in specie of a stolen car.

58. The second cause for caution arises from Hoch v R [1988] HCA 50; (1988) 165 CLR 292. If a series of events is linked or could be linked to a central explanation then the concatenation of those events is less probative of guilt even to the point where the evidence cannot be relied on at all. In that case, there were a number of complaints of sexual abuse but they did not come from unrelated sources. It was held that such evidence could not lawfully be relied on. In this case, the possible role of "Laurie" and "Mark" in obtaining and then providing items to the appellant must be considered.

59. I will now proceed to consider the points of identity which found favour with the learned Magistrate.
Charges 3156 and 3158/88 - The Ridley/Clout vehicle YRQ 548.

1. Ridley's spare set of keys fitting: This was consistent with the
locks in question coming from the Ridley vehicle. One in twenty
similar Ford vehicles would have (it seems) used the same keys. It
is not permissible to mix and match those odds unless it is known
that the boot/ignition/door locks are mixed up as between the
separate keys. There was no such evidence. Further, the supply of
the locks (with keys) by the thieves to the appellant amongst other
"spares" cannot be excluded.
2. Similarity of Spare Tyre: The result is simply that this feature
is not inconsistent with the stolen vehicle. It adds nothing
without evidence of the chances of one tyre being more or less
popular or standard than another. Particularly when the position
with respect to other similar vehicles is not in evidence.
3. Cloth trim and Floor covers: These are standard items and
combinations. They are simply not inconsistent with the stolen
vehicle. I was told there were only three variations.
4. Atomiser deodoriser: There was no evidence that the vehicle was
delivered with the atomiser to Ms Clout. She was not asked about
it. It is a standard item and not a fixture. It was of no value
for identification purposes.
5. Dyna tape on mirror: In the absence of a particular number on it
or of the number of such vehicles which are "dyna taped" with a
number for stock control purposes or otherwise, this was valueless
as an identifying point.
6. Boot lining cut: This was a boot mat. It is not unique. It was
some evidence that the Ridley boot mat was in the appellant's
possession but it was not possible to judge how many owners would
find the flap in question inconvenient and remove it or on how many
it would end up torn off.
7. Two tone paintwork: The underlying paint work on the body shell
and panels of the Ridley/Clout vehicle is not consistent with that
body nor with those panels being of the Ridley vehicle.
8. Dent/Scratch on Grille: This is a standard design induced
imperfection. It is valueless in the absence of evidence as to how
unique the appearance is.
9. Tyres and Rims: The odds of the same configuration as for the
Ridley vehicle is said to be "astronomic". The tyres and rims were
all standard tyres and rims. I note that the mag. wheels and tyres
were similarly identified (from the Wang Computers'/Gerald Slaven
vehicle). The learned Magistrate regarded the odds of those wheels
and tyres being the same configuration as being 1.5 million to 1.
The evidence has now established, beyond doubt, that the tyres and
wheels found are not those that came from the vehicle stolen from
Gerald Slaven Motors on 24 March 1987.
This example shows just how dangerous this line of reasoning is
even as a "back-up". There was no evidence as to how many similar
configurations there are or similar vehicles. This indicator is and
was valueless.
10. Safe'n Sound Seat: This was not with the vehicle. It is a
standard item with no identifying features. It was valueless as an
identification indicator. The same comment applies to the booster
seat.
11. Ice Blue Panels: I can find no record of evidence about "ice
blue panels". Counsel has not referred me to any. Indeed, if there
were such panels it would be inconsistent with the Crown case that
vehicles were simply disguised with new compliance, shock tower and
engine numbers, paint and/or trim and resold. There were two blue
items in photo 17. They were not identifiable, nor identified as
"Ice Blue".
12. Ford Emblem: This is consistent with the stolen vehicle.
However, such paint was said to be notorious for flaking. How many
Ford owners decide the badge would look neater with the blue enamel
"picked out" is not known. It would, in any event, merely identify
a steering wheel. It was on a "different" vehicle than the
Ridley/Clout vehicle (photo 56 exhibit 17 was referred to - that
appears to be the Bridge vehicle). Mr Bridge was not asked whether
his vehicle had been mixed and matched with other car seats,
steering wheel or whatever.
This particular item is not inconsistent with receipt of the
steering wheel and seats of the Ridley vehicle but that fact is not,
as the learned Magistrate conceded, "of startling significance." In
my view it had no positive significance at all.
13. Ski bolts: How ski bolt marks on a different vehicle could be
said to identify YRQ 548 as the Ridley's car is not explained. It
may be that it is said to be the "Ridley" trim. Again, it has no
positive significance.
Certainly, altered numbers and the presence of the Ridley engine in
the appellant's garage are indicators towards guilt. Additionally,
the Ridley folders and maps support that inference. The question
is, "guilt of what"? It has to be decided whether the evidence
shows receipt of the entire vehicle, or merely parts or items from it.

60. I will consider separately the appellant's explanation for possession of the admittedly stolen items and what is thus established.
Charge 3160/88 - Catmull/appellant's vehicle YRQ 854

1) Removed Ash Tray: This is too superficial to be of any value.
2) Scuff Marks on Inside flap: Any use of that facility on any
similar vehicle would cause a similar mark.
3) National Parks Sticker: This indicator was not
convincing. Any sticker could have left the minute
traces in question. They formed no recognizable
pattern. Any pattern they did form was inconsistent
with a "National Parks" sticker of the kind then
available and adduced in evidence before me.
4) Broken Aerial: The only similarity was that the aerial was
broken. This provides a lack of dissimilarity only.
5) Scratched Black Panel: This is said to commonly occur. There
was nothing unique about it. In any event, a thief repainting the
vehicle would surely be careful to "touch-up" that area as well as
others.
6) Seat Covers: These are standard items, not distinctive in any
way. It is not inconsistent but does not assist.
7) Spare Tyre: This is a standard item.
8) Damage to rear below bumper: In fact, there was none, as Mr
Catmull conceded, on YRQ 854. This is a point of dissimilarity.
9) Map of Australia and Queensland: This was clearly an item stolen
with the Catmull's vehicle. This supports an inference of guilt.
I note that the Catmull engine was found in the appellant's garage.
That also supports an inference of guilt.

Charge 2566/88 - Bridge vehicle - YPS 538

61. This vehicle (and some items recognizable as probably belonging with it) was found in the appellant's front garage. It was stolen and he admitted possession of it.

62. This supports an inference of guilt. However, I have to say that, in the absence of any explanation as to how "Goodyear Tyres at Fyshwick" is connected, there can be no more than a suspicion that someone there was "targeting" vehicles to steal. There is no evidence to connect the appellant with "Goodyear Tyres at Fyshwick" or any other person thereat.

63. It should be added that the presence of the vehicle under a tarpaulin was, as the learned Magistrate conceded, equivocal.
Charge 3159/88 - Blanche/Mrs Bond vehicle YRH 821

1) Damage to Rear Driver's side door: This is consistent with the
door being from the Blanche vehicle but, in view of the common
finding of "parking" scrapes on vehicles, is of little positive
value.
2) Cigarette burn in Carpet at rear: There was said to be a burn in
the rear carpet of the wrecked police vehicle as well. This is too
common a finding to be of any positive value.
3) Steering Wheel Logo: Flaking of the paint is inevitable. There
was nothing distinctive in this. It had not been "picked out".
4) Screw holes under bonnet: These were the usual result of
standard protective covers. The vehicle was fitted with protective
covers. This had no positive value.
5) Hole in Left Front Bumper Bar: The evidence
establishes there was no hole in the left front bumper
bar. This is a point of dissimilarity. It was a later
model bar than that which had been on the Blanche vehicle.
6) Tear in Aluminium Weather Strip, right rear door: This was said
to be a common occurrence. It is consistent with the prosecution
case but not particularly distinctive.
7) and 8) Service Book and Street Directory: These clearly belonged
to the stolen vehicle. They provided support for the prosecution
case.
9) Seats: These are covered in one of the three styles
used in Falcons. They are consistent with receipt of
the Blanche vehicle but of little, if any, positive
value. The tear in the rear of the driver's seat gives
it that little value, although the tear could easily
have arisen in the course of storage.
10) Gear Console: This was identified by a crack. Such
cracking was said to be not uncommon. This is
consistent with the allegation but has little positive
value. The console was separate from any vehicle.
11) Air Compressor: This is a commonly available article. There
was nothing distinctive about it.
12) Blanket: This again is a commonly available article. There was
nothing distinctive about it.

64. There was a superficial difference in the vehicle in that the "S" logo was transposed. It was clear, however, that the various body panels and window glasses were of different ages and from different vehicles. The braking system was different from that which had been part of the Blanche vehicle.

65. Nevertheless, it is also clear that the Blanche vehicle's engine was found in the appellant's garage. That is consistent with the prosecution's case.
Charge 3157/88: Atteia/Shepherd Ford/Marriott vehicle - YQH 906

66. The learned Magistrate refers to a charge 3154/88, although the reference seems to be scored through with a red pen. That charge does not appear to have been proceeded with. I have no record of it and it appears not to be the subject of any finding or appeal. 3157/88 is, in any event, the substantive charge (dishonest possession).

1) Grease mark - Driver's side door: This was on another vehicle
(the Clout/Ridley vehicle). It was apparently fresh. The value of
this is very limited.
2) Blue Velvet Interior: This was on another vehicle. It is
standard and, therefore, of no positive value.
3) Driver's side back panel hole: Appellant said he had put four
speakers in C*116 which he removed but no hole, such as referred to
by Mr Atteia, could be seen on inspection. Mr Atteia could not, in
evidence, explain what he meant by that identification point.
4) Red Light: There had been a red signal light for a
burglar alarm apparently with or part of the control switch.
There does not seem to have been any such space in YQH 906.
5) Green Light: A loose console, not part of this
vehicle, was said to have a similar light on it to that
which Mr Atteia's vehicle had. He referred to
exhibit 18. Exhibit 18 is a disembodied fitting
incorporating the vehicle ashtray and lighter spaces.
The "green light", which is incoporated, seems to be a
standard add-on to accompany any accessory. It could have
come from the Atteia vehicle but it is of little positive value.
6) and 7) Concord Amplifier and Speakers: The amplifier was not in
or on any vehicle. It is not distinctive and is a common item. The
speakers were similar. The appellant produced documentary evidence,
apparently genuine, that he had purchased a similar system at the
Canberra Motor Show. This indicator is, therefore, of no value.
8) Mag. Wheel: This was identified via a photograph. Such wheels
are standard items. This could not be of any value in establishing
the possession of the Atteia vehicle.
9) Coffee Stain: There was no coffee stain on the console in YQH
906. The evidence of Mr Atteia that he had spilt coffee in his
vehicle was clear enough but where and on what vehicle he found it
was unclear. There was no such stain in any of the vehicles I
inspected. The prosecution was unable to produce evidence of any
such stain.

67. There was no distinctive part of, or document associated with, the Atteia vehicle in the defendant's possession at the time of the police raid on the appellant's home.

68. It was said by the learned Magistrate that the appellant "gave false evidence" that he had not altered the chassis number of YQH 906. However, the police evidence shows the original C*116 chassis number has not been altered on the shock tower of YQH 906. Its engine (ie C*116 original) was in the appellant's garage with its number ground off, but it was not alleged that the 4.1 lt motor in YQH 906 was from the Atteia vehicle. This was a factual error on the part of the learned Magistrate which could have coloured his view of the appellant's credibility generally.

69. There was no evidence capable of supporting a finding beyond reasonable doubt that the appellant had received the Atteia vehicle or any positively identifiable part of it.
Charge 3161/88 - Wang/Gerald Slaven vehicle

70. The combination of tyres and rims was described by the learned Magistrate as "almost unique". As I noted earlier, it is clear beyond any argument and not contested by the prosecution that the tyres, at least, are not those from the Wang vehicle. It follows that the identification evidence was mistaken, however positive it may have seemed.

71. There was no evidence the appellant ever had anything to do with the Wang/Gerald Slaven vehicle.
Appellant's Explanations

72. The appellant was asked for explanations by Det. Bradley on 26 April 1988.

73. Conversations, so far as presently relevant, concerned the Catmull/appellant vehicle YRQ 854, the Blanche/Mrs Bond vehicle YRH 821 and Bridge vehicle YPS 538.

74. Before the learned Magistrate, the appellant gave evidence and was cross-examined.

75. As the appellant gave evidence before me, I had an opportunity to assess his demeanor. I note the learned Magistrate made no adverse comment on his demeanor and I could not find anything adverse by reason of the manner in which he gave his evidence. Despite capable cross-examination on two occasions by Mr Sabharwal, he did not appear shaken. If he was lying, it was not obvious from his demeanor. I will now turn to the explanations offered for the possession of the stolen items.

76. It should be noted that, whilst possession of recently stolen goods has been said to raise a "presumption" of theft or dishonest possession, it is not really a legal or even a factual presumption. As was noted in Bruce v The Queen [1987] HCA 40; (1987) 61 ALJR 603;

"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 reaonable explanation, guilty
knowledge of 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
explanation or explanatory circumstances, which
enables the inference to be drawn. Thus the
absence of any reasonable explanation must not itself
be explicable in a manner consistent with innocence.
The accused must have had an opportunity to give
an explanation in circumstances where, if he is
innocent, an explanation might reasonably be
expected. Those circumstances do not encompass
the situation where an accused, having been duly
cautioned, declines to answer questions by the
police in the exercise of his right to do so. On
the other hand, the fact that the caution was
given or that the right to silence was asserted or
exercised does not itself provide an explanation
of the possession of recently stolen goods or
necessarily negate the existence of circumstances
of unexplained possession of such goods where such
circumstances otherwise exist."

77. The presumption of innocence and the burden on the prosecution to satisfy the tribunal of fact beyond reasonable doubt remains. In the instant case, the presumption of innocence is strengthened by the character evidence tendered on behalf of the appellant. (See also Wanganeen (1988) 38 A Crim R 187).

78. As to YRQ 548: The appellant says he bought the engine from a person called "Warren" or "Wayne" Williams. This followed an enquiry made by Williams, he says, after his (the appellant's) acquisition of TX-50.

79. He says the Ridley documents must have been in one of the boxes of parts purchased from "Mark and Laurie".

80. He further pointed out (in evidence) that the door glass was uniformly 1983 (see dot codes) and factory tinted indicating it had come from a vehicle fitted with factory airconditioning. These features were inconsistent with the stolen vehicle.

81. As to YRQ 854: The appellant says he bought the Catmull engine from "Laurie". It is possible it was purchased from Mr O'Toole but in view of the appellant's recollection of the incomplete state of the Catmull engine that is unlikely.

82. The map, he assumed, had been in a box of parts supplied by "Laurie".

83. He also points to the fact that YRQ 548, whilst it has blue velour trim, is an XF model. This is inconsistent with the Atteia vehicle's trim being used or being usable for it. It could only have been used for the Marriott vehicle. The Catmull vehicle was "leaded". YRQ 548 is "unleaded". The two are not interchangeable.

84. There was a body shell delivered (possibly by "Mark" and "Laurie") which could have been used to build YRQ 854.

85. As to YRH 821: The appellant says that the Blanche engine was probably the one bought from Mr O'Toole. He had been put in touch with Mr O'Toole by "Laurie". He says this was probably in August 1987. Mr O'Toole says he was in gaol then. I have already noted the extraordinary coincidence of Mr O'Toole's existence and conformity to the appellant's description of him. It certainly refutes the suggestion that Mr O'Toole was a convenient fiction. The appellant fixed the time as "during the 1987 football season". This is vague. It is possible the event occurred before Mr O'Toole went to gaol.

86. The book and directory, the appellant assumed, came also from "Mark" and "Laurie" via one of the boxes of parts.

87. The appellant pointed also to the undeniable fact that YRH 821 had as part of it, parts and panels from various models between 1982 to 1987. The only real point of similarity is the body shell which is a standard item. The evidence shows the appellant was delivered at least one body shell and probably bought two others.

88. Conclusions: There is no credible evidence to support the prosecution case in respect of the receiving of the Fairmont Ghia Wheels and tyres (3161/88). That charge was not really pressed at the conclusion of the hearing of the appeal. It will be dismissed.

89. There is no sufficient evidence to support the view that the Marriott vehicle is or ever was the Atteia/Shepherd Ford vehicle. The evidence is not capable of credibly supporting the hypothesis that the Marriott vehicle contains any parts of such a vehicle. It follows that charge 3157/88 will be dismissed.

90. The remaining five charges deal with the remaining four vehicles.

91. As to YRQ 548: I am positively satisfied that it is not and never was the Ridley vehicle. It does not have that vehicle's body. Accordingly, unless the appellant received the entire vehicle, broke it down totally and distributed its parts amongst other vehicles he built up from various sources, the best inference the evidence can support for the prosecution is that the defendant received stolen parts from that vehicle. The "break down" theory is simply unsupportable. If the appellant received stolen cars to cannibalize them it would certainly prevent recognition of the stolen vehicles but the operation would be so labour intensive as to be worthless from a dishonest profit point of view. On the other hand, a car thief could make a lot of money out of breaking down stolen cars and selling parts to various receivers both honest and dishonest. There is clearly a huge market in second-hand car parts. A better price would be likely if the true origin of the stolen parts could be concealed from the buyer.

92. It is clear beyond doubt that if "Mark" and "Laurie" did not exist there would have to be some such persons. The appellant is not a person who would personally go out and steal cars. His character and history could mark him out as a target for the receipt of stolen car parts but the theory accepted by the learned Magistrate that he was the "linchpin" of a car stealing racket is, as I have noted, simply insupportable on the evidence before me.

93. I do not have to decide at this stage whether the appellant received parts of the Ridley vehicle honestly or dishonestly. He is not charged with any such offence. I have only to entertain a reasonable doubt that he received the Ridley vehicle in specie knowing it to have been stolen. I am positively satisfied that he did not.

94. Charges 3156 and 3158/88 must be dismissed.

95. As to YRQ 854: It is clear that this vehicle is not and never was the Catmull vehicle. It has not been positively shown to have contained any part of that vehicle although it is possible that it could have. The evidence does disclose that the appellant received at least some part or parts of that vehicle. It is, as with the previous charge, unnecessary to decide whether that receipt was dishonest or not, for the purposes of dealing with this charge.

96. It follows that charge 3160/88 must also be dismissed.

97. As to YRH 821: The evidence satisfies me (though I need only entertain a reasonable doubt on the issue) that it is not, and never was, the Blanche vehicle. Again, it is clear that the appellant received stolen parts or items from that vehicle. There is no evidence which satisfies me that any such parts are incorporated in YRH 821 although there may be some. For example, I think it probable that the Ridley ignition, door and boot locks were incorporated in YRQ 548, although it is impossible to be certain of this. However, it is not necessary for present purposes to determine whether the appellant received these parts (and items) dishonestly. He is not so charged. Charge 3159/88 must be dismissed.

98. As to YPS 538 (2566/88): There is no doubt, in this case, that the appellant did receive that vehicle. There is no doubt it was stolen from Mr Bridge. The issue is whether I am satisfied beyond reasonable doubt that the appellant's explanation for his possession of that vehicle is false and that he received that vehicle dishonestly.

99. The appellant's explanation is that "Mark" left the car with him for storage whilst the latter went overseas.

100. The vehicle was stolen on 16 February 1988. It had, like the Catmull, Blanche and Ridley vehicles, been recently to Goodyear Tyres at Fyshwick for what use that fact may be. On 26 April 1988, it was found in the appellant's garage. It was covered with a plastic tarpaulin style sheet. It had no registration plates and no compliance plates. Its battery was missing, although, even without the appellant's explanation for that, the latter fact is not significant. The covering up of the vehicle was explained by the appellant but that covering of the vehicle has, I think, little weight.

101. As the learned Magistrate noted, little turns on the appellant's conversation with police about the vehicle. If he was conscious of his guilt in respect of it, it is unlikely he would imagine it would escape detection. The vehicle still had its registration sticker attached and clearly visible. It still had its original engine number on the engine and shock tower turret. These facts are inconsistent with a consciousness of guilt, though they do not, of course, establish innocence.

102. To reject the appellant's explanation as confidently as he did, the learned Magistrate relied on the fact (as he found it) that "Mark" and "Laurie" were fictitious. He found the explanation given by the appellant in evidence for the presence of an umbrella left by Mr Bridge in his car as unconvincing. Although the appellant did not admit to the removal of the cassette head cleaner and umbrella from the vehicle, he did not get rid of them between the date the car was found and the date of the second search, 23 May 1988. It would not have been difficult for a clever (or even moderately alert) criminal, such as the appellant was assumed to be, to get rid of such items. It appears that the various brochures, maps and booklets from stolen vehicles remained in place for the second police visit as well. Again, that retention of those items is not consistent with a consciousness of guilt.

103. The grinding off of engine and/or shock tower numbers is, of course, suspicious. However, it seems that registration of vehicles is more easily effected (for Fords at least) if the engine and chassis numbers match each other and the compliance plates. Numbers are relatively easily ground off and restamped. There are "green" engines with no numbers available from spare parts dealers and there are second-hand engines such as those the appellant had (one of which was certainly not stolen) which are made ready for re-use or resale for re-use by first obliterating their numbers so they become "green" engines (though second-hand). The controlling number seems to be the compliance plate. I feel it necessary to observe that this situation is certainly unsatisfactory. Engines and chassis should bear their numbers for life. Any change of engine or chassis should be made simple so that backyard operators like the appellant are not able to point to the bureaucratic advantage of changing those numbers rather than notifying the change to the authorities. As things stand, the identification numbers have little or no value. It should be made an offence to alter such numbers and new compliance plates should be made readily available when an engine or chassis is changed over.

104. It is to be noted in the appellant's favour, that his explanation for YPS 538 being in his garage has been consistent. It may also be noted that Mrs Coggan gave evidence corroborating the delivery of a box that could be the tea chest of parts by a person named "Mark".

105. Whilst this does not, by any means, prove that the "Mark" Mrs Coggan saw is one of the apparently criminal duo of "Mark and Laurie", it does militate against a confident dismissal of the appellant's evidence.

106. It is suggested by the evidence that it is at least possible that "Mark" and "Laurie", whether with a confederate as "spotter" or one of them having that role, picked out cars to steal, broke them down and sold the parts to back yard enthusiasts and others who purchased parts of vehicles through the used car parts market. The "Trading Post" carries many such advertisements. No doubt, most advertisements are for legitimately obtained parts but some proportion is likely to relate to stolen parts.

107. It follows that it is a credible hypothesis that "Mark" and "Laurie", having made the appellant's acquaintance, saw him as a market for some of their stolen car parts.

108. I have to ask whether the evidence excludes this hypothesis beyond reasonable doubt (see Peacock v R [1911] HCA 66; (1911) 13 CLR 619). It is necessary for this purpose for me to ask whether I am satisfied that the appellant knew he had been supplied with stolen parts by "Mark" and "Laurie". If he did, it becomes more difficult to believe that he did not know that YPS 538 was stolen if left with him by "Mark" as he says. The evidence tendered in the other matters may be considered for this purpose (see Thompson v R (1989) 63 ALJR 44; Harriman v R (1989 ALJR 694).

109. In accordance with the majority view in Perry v R [1982] HCA 75; (1982) 150 CLR 580, I also have to ask myself whether the presence of three stolen engines and the stolen documents can only be explained by reference to the fact that the accused received them believing them to have been stolen. The engine, parts and documents received from "Laurie" and "Mark" and the engine from Mr O'Toole whose telephone number was said to have been supplied by Mark, are connected with the hypothesis that places "Mark and Laurie" as part of a group of distributors and, possibly, thieves of motor vehicle parts. Accordingly, consistently with Hoch v R [1988] HCA 50; (1988) 165 CLR 292, it is not permissible to use the evidence of possession of those items so as to infer guilty knowledge as to YPS 538 any more than the possession of that item would itself support that conclusion.

110. That leaves the engine provided through "Williams". This had been the Ridley engine. A map of the Ridleys appeared among the parts supplied by "Mark and Laurie", according to the appellant's case. It follows that for the hypothesis of coincidental but innocent possession of this engine it has to be further assumed that the Ridley vehicle passed through "Mark" and "Laurie's" hands as well as Mr William's hands.

111. It is tempting to dismiss this addendum to the "Mark and Laurie" hypothesis as too far-fetched to be capable of belief. However, I am bound to note that "Mark and Laurie" do not appear to have worked alone. At least Mr O'Toole was, arguably, a part of the distribution network for stolen car parts. It may be that Mr Williams initially obtained the engine in question from or as part of the same network. If what the appellant says Mr Williams told him is true, Mr Williams may initially have had in mind to insert the stolen engine in a rebuilt body but abandoned that idea in favour of seeking to sell the engine to the appellant.

112. The second matter I have to note is that it would have been simple for the appellant to have blamed "Mark and Laurie" directly or indirectly for the Ridley engine. The appellant was not questioned by police about that engine. He was asked about it by Mr Sabharwal (transcript 28/11/89; p 96). He said:-

A "I know nothing about it, sir, except that I
bought it."
Q "From whom?"
A "It is one I bought in Sydney."
Q "And did you just buy the engine on its own?"
A Yes, I think so. It may have had a
bell-housing on it I think, but I am not sure."

113. That answer is not consistent with the "Williams" explanation. I note also that the explanation for the Catmull engine was that it was sold to the appellant by "Laurie and Mark" (transcript 28/11/89; p 94), yet before the learned Magistrate, the appellant referred to "Penrith" as advertised in "The Trading Post" as being the source of it.

114. He says, in explanation, of the recently refreshed recollection he now has, that it was the Blanche engine which came from Penrith and the Catmull engine came from "Laurie and Mark" in Canberra.

115. It seems he now says the Ridley engine came from Canberra through Mr Williams. None came from "Sydney" as opposed to "Penrith" (at least, none of those in the garage). I would have been inclined to reject the claim the appellant made in respect of the stolen engines but for the production of Mr O'Toole. It is impossible not to accept that it is at least a credible hypothesis that an engine was obtained from Mr O'Toole by the appellant. It is not possible to be satisfied positively that any engine so obtained was the Ridley engine but it is at least credible that it was one of the stolen engines that had been unlawfully obtained by "Laurie and Mark". A second such associate, in Canberra, is no less possible.

116. The situation found by police, even on their first visit, strongly suggested the guilt of the appellant of handling stolen motor vehicles. However, reliance seems to have been somewhat excessively placed on a view that all the subsidiary facts would accord with the initial police hypothesis. If there had been a realisation, as there should have been, given the appellant's initial statements to police, that he was claiming to have purchased only parts, that original hypothesis could have been more rigorously tested. The investigating police would probably then have discovered either that their initial hypothesis was wrong or better evidence to support it. The hypothesis that motor vehicle parts were dishonestly received by the appellant might then have been more thoroughly investigated and other participants in the chain of distribution of stolen car parts identified and interrogated.

117. In the end, the prosecution case is so much at variance with the proven facts in so many other respects that, notwithstanding that the appellant could reasonably have been thought to have known that YPS 538 was stolen, I am not persuaded beyond reasonable doubt that he did. The appellant's various explanations for goods found on his premises have not been entirely consistent but, on the other hand, too great a consistency would itself be suspicious. He had a long time, as it happened, to think up a false story that better explained his possession of the various goods that were stolen yet did not do so. It follows that I cannot safely conclude that such evidence requires a conclusion that he had guilty knowledge.

118. The presumption of innocence must be given due weight. In this case, that presumption is further aided by the fact that the appellant has put his character in issue. Nothing has been adduced by the prosecution to diminish the strength of that evidence in this case.

119. It follows that Charge 2566/88 must also be dismissed.

120. Orders:- It is ordered that in each appeal, I order:-

1. The conviction and sentence be set aside.
2. A verdict of acquittal be entered.

121. I will hear the parties as to costs.