Christopher James Garven v Constable David Patrick Quilty [1998] ACTSC 137 (22 December 1998)

Last Updated: 13 October 1999

CHRISTOPHER JAMES GARVEN v CONSTABLE DAVID PATRICK QUILTY [1998] ACTSC 137 (22 December 1998)

CATCHWORDS

STEALING - Postal articles - Appeal against conviction - Whether charge made out by Crown - Whether article "belonged" to alleged owner - Alleged owner held no proprietary right or interest - Erroneous finding of guilt - Conviction set aside - Crimes Act 1900 (ACT), ss99, 95 - Australian Postal Corporation Act 1989 (Cth), s101.

EVIDENCE IN CRIMINAL PROCEEDINGS - Burden of proof - Whether Magistrate erred in assessing evidence -Whether accused given benefit of presumption of innocence - Whether Magistrate considered all hypotheses consistent with innocence - Whether intention of accused properly considered - whether intent of accused sufficient for conviction - Crimes Act 1900 ACT, ss96(1)(b), 97(1), 97(2).

PRESUMPTION - Of innocence - Whether Magistrate erred in assessing evidence - Whether accused obliged to rebut Crown case - Guilt not to be inferred from mere failure of accused to adduce evidence of innocence - exercise of right of silence not to render defence suspect.

ATTEMPT - Alternative verdict of - charge of stealing - whether intention of accused sufficient for charge of attempt - whether alternative verdict possible in summary proceedings - No power in Magistrate to return alternative verdict - Crimes Act 1900 (ACT), s477(6).

Australian Postal Corporation Act 1989 (Cth), s101

Crimes Act 1900 (ACT), ss96, 99, 95, 97(1), 97(2),

Crimes Act 1958 (VIC), s73(12)

Reg. v Justelius [1973] 1 NSWLR 471, applied

R v Easom [1971] 2 QB 315, at 319, 321, applied

Sharp v McCormick [1986] VR 869, at 871-872, applied

R v Williams [1953] 1 QB 660, referred to

Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, referred to

Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95, applied

R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 72 ALJR 339, referred to

Penney v R [1998] HCA 51; (1998) 155 ALR 605, referred to

ON APPEAL FROM THE MAGISTRATES' COURT

No. SCA 63 of 1998

Coram: Higgins J

Supreme Court of the ACT

Date: 22 December 1998

IN THE SUPREME COURT OF THE )

) No. SCA 63 of 1998

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES' COURT

BETWEEN: CHRISTOPHER JAMES GARVEN

Appellant

AND: CONSTABLE DAVID PATRICK QUILTY

Respondent

ORDER

Judge Making Order: Higgins J

Where Made: Canberra

Date of Order: 22 December 1998

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The conviction and penalty be set aside.

3. The information be dismissed.

1. On 15 June 1998, the appellant was convicted of stealing by Magistrate Burns in the ACT Magistrates' Court. He was fined $1000. On 25 June 1998 he filed a Notice of Appeal to this Court.

2. The charge was laid upon the information of Constable Stuart Bonner on 14 December 1997. The charge was that the appellant:

"Öon the 29^th September 1997 did steal a gold ring set with an oval blue sapphire surrounded by twelve small diamonds with fourteen blue sapphire baguettes running down the band of the value of two thousand six hundred and fifty dollars, belonging to Cynthia Jean Nagy."

3. Ms Nagy gave evidence that, sometime in September 1997, she was expecting a parcel. She was notified by Australian Customs that there was a package addressed to her containing jewellery ("the package"). It was to be released to Australia Post for delivery to her. That, probably, was on 25 September 1997.

4. The package had not arrived after a few days. After 29 September 1997, probably on 30 September 1997, she contacted Australia Post. A person there said the package had, apparently, been delivered. She attended the Mail Centre and was shown a document containing an entry identifying an overseas insured package and a signature of recipient. It was not her signature. The matter was reported to police.

5. She was then called, apparently on 2 October 1997, by Constable David Quilty, the investigating police officer. He told her that an Australia Post parcel pick-up card had been located on her door step. He had obtained the package from Australia Post. He invited her to come and inspect it.

6. On 3 October 1997 she attended upon the respondent. The package was open and the ring in question was in it. Constable Quilty had received the package in an unopened condition.

7. As to how the ring came to be despatched to her, the evidence was sparse. The prosecutor asked her:

"Now, that ring do you know who that belonged to originally?ÖIt might have been my mother's but it certainly came from my father."

8. That was the only information that was before his Worship concerning the ownership of the ring.

9. In cross-examination Ms Nagy agreed that her mailbox had, at this time, been in a damaged state. That was said to explain why deliveries were made to the front porch area of her house. She denied having received any other package around this time, whether from Reader's Digest or any other source.

10. Neighbours from either side of Ms Nagy's residence were called to deny that they had received or signed for the package on behalf of Ms Nagy.

11. Mr Anthony Nixon, an Australia Post investigator, gave evidence that Australia Post instructions required the package, as an overseas insured package, to be delivered to a resident at the consignee's address. He agreed that he was aware that delivery officers sometimes would get a neighbour to sign for a package or even just leave it on the doorstep without signature.

12. The delivery sheet was dated 29 September 1997. Mr Michael Visser, Australia Post supervisor, produced records establishing that the defendant/appellant was on duty that day. It was part of the appellant's duties to deliver packages in the area which included Ms Nagy's residence. He had also been on duty on 2 October 1997.

13. Mr Visser confirmed that, if an addressee of such a package was not home, a card should be left advising the addressee to attend the relevant mail centre to collect it. He conceded that the required procedures were sometimes breached, though he did not know of any case where insured packages had been left without the signature of a recipient. He had not been aware of a delivery officer signing the form himself or herself . He was shown a form which had been filled out by some delivery officer other than the defendant. That person, he agreed, had clearly signed as recipient for various delivery items. He agreed that was a breach of the accepted procedures. He agreed that sometimes cards were not left when they should have been.

14. Constable Quilty, after being advised of Ms Nagy's complaint as to the non-delivery of the package, readily discovered that the delivery should have been effected by the appellant on 29 September 1997. Accordingly, he left at the appellant's residence a card indicating that he was a police officer and that he wished to speak with the appellant about that delivery. That was done on 1 October 1997.

15. The next day, Constable Quilty was contacted by the appellant. They attended together at Ms Nagy's address and there found a collection card on the door handle. The appellant said he had placed it there that day. They took the card back to the Mail Centre where the package was found waiting for collection. Constable Quilty opened the package and saw the ring inside the package. The package did not appear to have been previously opened, save for Customs inspection.

16. Constable Quilty agreed that the defendant had told him that he had delivered the package in question to Ms Nagy's address on 29 September 1997. A neighbour had signed for it. He left it with that person. On 2 October 1997, he attended again to deliver a further parcel to Ms Nagy's address. He found no one home but he:

"Öfound this parcel that the other person signed for on the front step."

17. He had, accordingly, he said, resumed possession of the package and took it back to the Mail Centre leaving the collection card which Constable Quilty had seen on the door handle.

18. The appellant gave evidence, after consenting to summary jurisdiction, to the same effect.

19. His cross-examination was unremarkable, save that it was suggested to him that he had seen the Customs label on the package and so knew what it contained. The prosecutor asked:

"I'm asking if you had turned your mind to it you would have known that that parcel would have passed through Customs?ÖWell, that was the last thing I was thinking of.

But you would have known?ÖNo, I wouldn't have known.

So if someone said to you, "Excuse me, Mr Garven, if a parcel comes from the US does it go through Customs" you would have to say "I don't know?ÖYes well, I don't know. Does everything go through Customs, does it? I'm not - it's not my job, I wouldn't have a clue, actually.

So you never look at those labels?ÖNo, I don't know the Custom's regulations if everything's got to be openedÖ.

HIS WORSHIP: You just told me a moment ago that you knew that parcels coming into the country were inspected by Customs?ÖNo, I don't know if they've been inspected, everything's been inspected."

You told me that a minute ago?ÖI only know that from the statement that the stuff's getting inspected from Customs. I don't know if everything does get inspected from Customs."

20. In fact his Worship's recollection was wrong. The appellant had consistently denied knowledge of the inspection of incoming parcels by Customs.

21. The appellant took issue with Constable Quilty's evidence which suggested that the appellant had conceded on 2 October 1997 that he was already aware that the subject of Constable Quilty's enquiries was the delivery or otherwise of the package to Ms Nagy. He did raise his character by denying he had ever previously stolen anything. He was not challenged as to his character.

22. The appellant's father gave evidence. He said that the card left by Constable Quilty had referred to a "missing parcel in your area". He agreed that he passed that information onto the appellant the same afternoon. Mr Garven senior was himself a Training Officer with Australia Post. He confirmed other witnesses' evidence that delivery practices did vary from those laid down by management Drivers sometimes signed themselves or got a neighbour or apparent neighbour to sign.

23. Mr John Banks, a driver with Australia Post supported the existence of the unofficial practices concerning deliveries. So also did a Mr Peter Burke. Character evidence was given in respect of the appellant by Mr Michael Searle, a manager of a security firm.

24. His Worship, during the closing address by Mr Hughes, counsel for the appellant, expressed it as his recollection of the evidence that the second package which, the appellant said, caused him to attend on 2 October 1997 at Ms Nagy's address, was from Reader's Digest. Mr Hughes submitted that the appellant had merely said it was "something like a Readers Digest".

25. His Worship strongly disagreed. He said:

"He didn't say it was something like a Readers Digest. He said it was from Readers Digest. That was what he said."

26. What Mr Garven in fact had said was:

"I delivered a like a Readers Digest book, something like that it was.

Could you see Readers Digest written on it?ÖYes, I think, yes."

27. It was he said, an "ordinary parcel" not requiring a signature for its receipt.

28. Again, his Worship's recollection of the evidence was incorrect. Mr Hughes' recollection was accurate.

29. The prosecutor, in her closing address, submitted that the appellant's account lacked credibility. It had not been supported by any neighbour. Indeed, the two next door neighbours who were called denied that any of them was the alleged receiver of the package. Neither was challenged as to that.

30. The prosecution accepted that the appellant's possession of the package on 29 September 1997 was not initially dishonest but submitted that s96 of the Crimes Act 1900 (ACT) applied to render the retention of possession of it, instead of delivering it, dishonest and, accordingly, an offence against s99 (theft).

31. His Worship gave judgment ex tempore. That is, of course, quite appropriate in the case of summary proceedings. It does mean, however, that his Worship had no opportunity to correct his errors of recollection concerning the appellant's evidence.

32. In his reasons, his Worship accepted, as the preponderance of the evidence obliged him to, that it was not unlikely that drivers, such as the appellant, might leave packages with neighbours, or persons assumed to be neighbours, as the appellant had claimed that he did. The fact that such conduct breached the employer's guidelines was not, he concluded, of any great significance.

33. Weight was placed by his Worship upon the fact that, after he was charged with stealing the package, the appellant made no effort to trace the person he took to be the neighbour of Ms Nagy who, he claimed, had signed for it. His explanation for not doing so was rejected by his Worship as false.

34. The lack of any identified neighbour who could have received the package was one reason his Worship gave for rejecting the appellant's account. Another was that Ms Nagy denied that she "received" a "Reader's Digest subscription". Further, his Worship accepted that, contrary to his claim in evidence, the appellant did betray an awareness of the address to which the package had been delivered before Constable Quilty told him what his enquiry was about. There was the fact that Ms Nagy, in fact, received no other package. Additionally, the delivery card left on 2 October did not identify the number of items to be collected.

35. The fact that no second package ever turned up would not have been decisive. Ms Nagy only attended at the police station, not at Australia Post. She did not attend to collect any other package and there was no evidence as to what would have happened with such a package if it had remained uncollected. It might, for example, merely have been returned to the sender.

36. I have already noted that his Worship's assumptions concerning the appellant's evidence as to the identification of the second package with Reader's Digest were flawed. He does not refer in his reasons to any contradiction in the appellant's evidence concerning his knowledge of Customs inspections. However, his Worship's view that he had given contradictory evidence, might well have contributed to the rejection of his claim to have delivered the package to a person in the neighbourhood, and then, having attended again on 2 October 1997, to have found the package uncollected at Ms Nagy's address.

37. Having rejected the appellant's evidence his Worship found:

"In these circumstances there is no reasonable or rational hypothesis other than the defendant decided to retain possession of the item on 29 September 1997 and, barring any truthful explanation by the defendant for his decision to retain possession of that item, and in all the circumstances of the case, the only rational explanation can be that he did so because at that time he was intending to convert it to his own use. Accordingly, I find the offence proved."

38. In his sentencing remarks his Worship made it clear that he was of the view that the return of the package resulted from the prior knowledge of the appellant as to the police inquiries concerning it.

39. By his Notice of Appeal of 25 June 1998, the appellant complains of his conviction but does not assert that the penalty was excessive.

40. The appellant made, in essence, three submissions:

1. The package had not been received by Ms Nagy before its return to Australia Post. There was no evidence she had any possessory or proprietary right in the ring before its delivery to her. Thus, absent such evidence, the charge was defective in alleging it belonged to her;

2. Even on the facts as found by his Worship, there was a reasonable hypothesis that the appellant had not, before the time he decided to return the package, formed the intent to steal it;

3. In deciding to reject the appellant's account, decide affirmatively that it was false and to draw an inference of guilt from its falsity, his Worship had impermissibly failed to give effect to the presumption of innocence.

41. The prosecution, on the other hand, though conceding the evidence of any proprietary interest in Ms Nagy was slight, contended that his Worship was entitled to find as he did. No issue had been made as to the form of the charge. If it had, it could, in the Magistrates' Court, have been amended to allege that the package "belonged" to Australia Post. The decision on the facts, Mr Todd contended, was entirely supportable. His Worship was entitled to reject the appellant's explanation and draw an inference adverse to him on the issue of his intention.

To whom did the package "belong"?

42. The Australian Postal Corporation Act 1989 (Cth), at s101, deems articles given into the possession of Australia Post for delivery to be "the property of" Australia Post. That does not mean that, for other purposes, the article may not also "belong to" another person or corporation for the purposes of s99 of the Crimes Act.

43. Section 95 of the Crimes Act provides, relevantly:

"(1) For the purposes of this Part, property shall be taken as belonging to any person who has possession or control of it or who has any proprietory (sic) right or interest in it (other than an equitable interest arising only from any agreement to transfer or grant an interest)."

44. That clearly encompasses the Australian Postal Corporation ("Australia Post").

45. In the absence of any evidence that Ms Nagy had, before delivery of the ring to her, any proprietary right to, or interest in it, it was not possible for his Worship to have concluded that the allegation that the ring "belonged to" Ms Nagy had been made out. That is a defect of substance - Reg. v Justelius [1973] 1 NSWLR 471. The finding of guilt was, therefore, erroneous and the conviction and penalty must, on that ground alone, be set aside.

Had all reasonable hypotheses consistent with innocence been disproved?

46. It was the appellant's case that he did not retain possession of the package. Thus, he could not advance an explanation that, if he had retained possession of it, only surrendering that possession when police enquiries became evident, it was not with the intention of dishonestly appropriating it so as to deprive the person entitled thereto of it permanently.

47. I consider that it would be open to a tribunal of fact, even allowing for the factual errors made by his Worship, to have concluded that:

1. The appellant dishonestly retained possession of the package believing that it contained valuable jewellery.

2. The appellant returned the package to Australia Post because he feared that his wrongful retention of possession would be discovered.

48. In retaining possession, it was open for a tribunal of fact to have concluded that, whoever the owner of the property then was, the appellant had, within the meaning of s96(1)(b) of the Crimes Act, adversely interfered with, or usurped the rights of, the owner. Those rights included the right to cause the package and its contents to be delivered to Ms Nagy. For that purpose it does not matter if the consignor owned the ring, or merely acted as the agent or representative of the owner, or whether the Australian Postal Corporation or one or other of Ms Nagy's relatives is to be regarded as the "owner". He had, therefore, "appropriated" the package.

49. That appropriation was made in circumstances which could be considered "dishonest" within the meaning of s96(4).

50. The issue is whether that dishonest appropriation was done with the intent referred to in s97. There are, in fact, three possibilities consistent with the proved facts, even accepting the prosecution case.

51. The first is that the appellant had, when he retained possession of the package intended, as his Worship concluded, to "treat the property as his Ö own to dispose of regardless of the rights of the other person" (s97(1)).

52. Even if the appellant had intended to retain possession of the contents of the package, intending to pawn it rather than sell or keep it, s97(1) would be satisfied.

53. It is also open to conclude that the appellant intended to keep the package for a time, then, if there were no enquiries as to its delivery, to keep the contents, but otherwise to return it, much as he did. That hypothesis has some support. The package, when returned, appeared not to have been opened by the appellant.

54. The non-opening of the package could also indicate that the appellant had yet to decide whether he wished to keep the contents of it. That is, that he would keep it or deal with it as his own if the contents proved sufficiently valuable and disposable for him to do so.

55. It seems to me that a tribunal of fact would have to consider the latter two hypotheses to be reasonable. Both are consistent with the appellant having a dishonest intent in retaining the package and with the fact that he apparently left the package unopened for three days.

56. At common law, a conditional intent permanently to deprive was insufficient for theft. In R v Easom [1971] 2 QB 315 the appellant took possession of a handbag, intending to steal its contents. He searched it but found nothing worth stealing so he surreptitiously returned it to the owner. The owner was, in fact, a police officer attempting to detect thieves. The Court of Appeal (Edmund Davies and Cairns LJJ and McKenna J) held the charge of theft had not been made out on those facts. Their Lordships stated:

"(319) In every case of theft the appropriation must be accompanied by the intention of permanently depriving the owner of his property. What may be loosely described as a "conditional" appropriation will not do. If the appropriator has it in mind merely to deprive the owner of such of his property as, on examination, proves worth taking and then, finding that the booty is valueless to the appropriator, leaves it ready to hand to be repossessed by the owner, the appropriator has not stolen Ö. the facts are strongly indicative that this was exactly how his mind was workingÖ"

57. Their Lordships then considered whether the appellant might have been charged with attempted theft as might a pickpocket who searches a pocket but finds it empty. That was left open. However, it could not have been an attempt to steal the goods actually appropriated and returned:

"(321) Öthere could be no valid conviction of the appellant of attempted theft on the present indictment unless it were established that he was animated by the same intention permanently to deprive Sergeant Crooks of the goods enumerated in the particulars of the charge as would be necessary to establish the full offence."

58. That authority supports the view that an intent to appropriate permanently would not be constituted by an intent to retain the package, only if, after a short interval, no enquiries about it were made and then only if the contents proved, on examination, to be goods the appellant would wish to retain and dispose of as his own. The lack of interference with the package, notwithstanding the lapse of three days, is supportive of that intention, though it is not inconsistent with an intent to retain the package and its contents irrespective of whatever those contents were, either absolutely or conditionally on no enquiries being made.

59. Whether that former intention would suffice for attempted stealing does not arise in this appeal. Under section 347 of the Crimes Act, attempts are made punishable "as if the attempted offence had been committed". Section 427 refers to an alternative verdict for an attempt:

"Where on the trial of a person for any offence the jury are not satisfied that he or she is guilty, but are satisfied that he or she is guilty of an attempt to commit Ö the same, they may acquit him or her of the offence charged, and find him or her guilty of such attemptÖ"

60. That provision is applicable only to trial of such an offence on indictment, including trial by Judge alone - see ss68B and 68C, Supreme Court Act 1933 (ACT).

61. The power reposed in the Magistrates' Court by virtue of s477 of the Crimes Act permits that Court , having assumed summary jurisdiction under s477(6), to:

"Öhear and determine the charge summarily and [to]Ösentence or otherwise deal with the defendant according to law."

62. An information validly before the Magistrates' Court may be amended to remove an "alleged defect" therein pursuant to s28 of the Magistrates' Court Act 1930 (ACT).

63. This information was not defective. Part VII of that Act applies to indictable offences which are heard summarily. No power is given to the Magistrates' Court to find or return an alternative verdict in summary proceedings, though it would be relatively easy to entertain a fresh charge to that effect.

64. R v Easom (supra) was distinguished in Sharp v McCormick [1986] VR 869. In that case the defendant had taken an electrical coil, intending to keep it if it fitted his motor vehicle. The Full Court (Murray, Brooking and Nathan JJ) held that a conviction on those facts was not inconsistent with R v Easom. Murray J said, at 871-2:

"In my opinionÖit is not necessary for this Court to pass upon the question of whether it agrees with the decision because the decision is plainly distinguishable in a critical respect. In Easom's Case the appellant was charged with the theft of the handbag and various specified articles. In relation to the handbag there appears to have been no evidence that the appellant at any time formed an intention to deprive the owner permanently of the handbag because the facts indicate that he took the handbag merely for the purpose of examining its contents. Nor when he opened the handbag and inspected its contents did the evidence establish even a conditional intention of stealing them because by his actions he indicated that he had no such intention."

65. The question was the characterisation of the intent of the defendant when he appropriated the coil. At issue was whether there was a prima facie case. Murray J considered that if:

"(872) Ö the defendant intended to keep the coil unless he later decided to return it then his intention at the time of the appropriation is sufficient to establish theft Ö If the question is posed the other way, namely that the defendant intended to return the coil unless he later decided to keep it, then it appears to me that the appropriation would fall within the first limb of sub-s(12). His reservation of the probability or possibility of keeping it would amount to an intention to treat the coil as his own to dispose of regardless of the owner's rights Ö the operation of sub-s(12) depends upon the absence of an actual intent permanently to deprive the owner of the property in question at the time of the appropriation."

66. The intent of that defendant thus fell within s73(12) Crimes Act 1958 (VIC) and was deemed to constitute an intent permanently to deprive the owner of it. Brooking and Nathan JJ concurred.

67. Section 73(12) provides:

"A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal."

68. That provision is similar to s97(1) and (2) of the Crimes Act 1900:

"(1) A person who appropriates property belonging to another person shall be taken, for the purposes of this Part, as having the intention to deprive the other person of that property permanently if his or her intention is to treat the property as his or her own to dispose of regardless of the rights of the other person.

(2) For the purposes of subsection (1), a person shall be taken to have an intention to treat property as his or her own to dispose of regardless of the rights of any other person to whom the property belongs if he or she borrows or lends the property for such a period and in such circumstances as to make the borrowing or lending equivalent to treating the property as his or her own."

69. The latter provision has to do with excluding a defence for persons who appropriate property, intending that, eventually, it will be returned but have only a vague expectation of doing so. The case of R v Williams [1953] 1 QB 660 (the fraudulent sub-post mistress) is an example of that situation.

70. It follows that the appellant could be convicted of stealing:

_ if he had, when he appropriated the package, intended not to return it to Australia Post or to deliver it to Ms Nagy as instructed by Australia Post, not merely for a defined time, but indefinitely, doing so only to avoid being found out, having become aware of police enquiries; or

_ if he had, when he appropriated the package, intended to retain it, unless he became aware of inquiries about its non-delivery, and, if no such enquiries eventuated after a suitable lapse of time, then to deal with it as his own. That intent would be deemed to be an intent permanently to deprive the owner thereof by virtue of s97(1).

71. However, if he had, when he appropriated the package, the intent, if no enquiries were made and after a suitable time, of examining the package's contents to see if they were worth treating as if his own, then that intent might well not suffice for conviction. No attention was given by his Worship or by the parties as to whether the appellant might have had this latter intent and, then, as to whether Easom's case was good law. Thus, even if the finding made by his Worship that the appellant had dishonestly appropriated the package had stood unchallenged, a real issue as to whether that intent included an actual or deemed permanent deprivation remained undetermined. A question was also raised as to whether his Worship fell into error in rejecting the appellant's account of his dealings with the package.

Was the rejection of the appellant's account of his dealing with the package erroneously rejected?

72. I have already observed that his Worship fell into error in forming the view that the appellant had both contradicted himself under cross-examination, and falsely claimed the alleged second package to have been from Digest.

73. It was also contended that his Worship was in error in drawing an inference adverse to the appellant because he had taken no steps to make enquiries of neighbours of Ms Nagy's to find the person who he claimed had received and signed for the package.

74. It should be emphasised that, whether a trial is before a jury or not, the tribunal of fact must be reminded and, if there is not a jury, remind himself or herself, that the defendant does not have to prove his or her innocence. It follows that he or she is not obliged to seek out evidence which might rebut the prosecution case.

75. Of course, a failure to adduce evidence may make acceptance of an otherwise persuasive Crown case easier - see Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217. However, that consideration does not permit a tribunal of fact to use that failure itself to support an inference of guilt as his Worship did.

76. A majority of the High Court, in Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95, held that it should not be suggested, either by evidence, questions asked, or comments made, that the exercise of the right of silence whether at or before trial renders a defence relied upon at trial suspect or unacceptable.

77. That principle was reaffirmed in R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 72 ALJR 339 (selective resort to silence when questioned by police).

78. A fortiori, a failure by an accused person actively to seek out evidence to support a claim of innocence, is incapable of positively supporting an inference of guilt. However, neither is it a basis for acquittal that the police investigation was incomplete or even incompetent. It may however, render a trial unfair to an accused - see Penney v R [1998] HCA 51; (1998) 155 ALR 605. It is not suggested that it did so in this case.

79. Nevertheless, it follows that it was not open to his Worship to have inferred or supported an inference of guilt from the failure of the appellant to have made enquiries as to possible available witnesses.

80. Even absent those errors, there was a strong case supporting the view that the appellant had dishonestly appropriated the package. However, it could not be said that there was no reasonable prospect of an acquittal foregone.

Disposition

81. On the latter ground alone I would set aside the conviction and penalty and remit the matter for re-trial before another Magistrate. The failure to recognise and give reasons for rejection of alternative hypotheses as to the appellant's intent at the time of his appropriation of the package, assuming that appropriation to be found to be dishonest, might well form another ground for that same result. However, that would require acceptance of the continued application of Easom's case.

82. However, the error concerning the identity of the person to whom the package belonged at the time of its alleged appropriation, is, by itself, fatal to the information as laid. It must be dismissed.

Procedure

83. I have noted in paragraph two of these reasons that the information was laid by Constable Stuart Bonner. Proceedings were conducted by the Director of Public Prosecutions, pursuant to section 6 of the Director of Public Prosecutions Act 1990 (ACT).

84. However, that does not effect a change in the identity of the informant. If such a change is to be effected then it must be done pursuant to some statutory power. Section 8 of the DPP Act may have that effect although it only refers to taking over the "conduct" of proceedings. Nevertheless, it does in s8(3)(a) refer to the continuation of such proceedings, if it is decided by the Director of Public Prosecutions not merely to end them, "in his or her official name".

85. There is no other statutory power which, arguably, could permit one informant to be substituted for another. Certainly, in this case, no order was, even purportedly, made by any Magistrate permitting Constable Bonner to be replaced as informant.

86. Notwithstanding that, "Constable Quilty" is named as the "respondent/informant" in this appeal. He was not. The cause of the error seems to be that, on the transcript, as printed, of proceedings before Magistrate Burns, DAVID PATRICK QUILTY is named as if he was the informant. He was only a witness.

87. In any event, a party should not be named by title but by his or her proper names, so far as known, though that is a defect curable by amendment (see Civil Procedure ACT, par. 5301.5.)

88. The identity of the informant is a matter of substance, not merely of form. In O'Sullivan v MacMahon (1896) 22 VLR 55, an inspector of police, though not the informant, appeared and conducted the prosecution as if he was. Madden CJ held the conviction bad.

89. Under the Magistrates' Court Act 1930 significant rights, duties and liabilities are imposed on an informant. See eg ss25, 30, 53(1), 60A, 90, 97, 109, 110(2), 111, 114-116, 219C(1)(a) and 244.

90. In the present matter, for example, I do not know if it is the informant or Constable Quilty who has instructed those appearing, purportedly, on his behalf. As a result, I do not know if it is appropriate to make a costs order against him or Constable Bonner. Whilst, in either case, the AFP or the DPP will, no doubt, attend to payment, it is wrong that the incorrect person be named as a party and be subjected to the risk of a costs order when the order should be against another.

91. To correct this error, I propose, unless the parties wish otherwise to be heard, and subject to either the consent of Constable Bonner or assurance that he, in truth, instructed the DPP to respond to this appeal, to substitute his name for that of Constable Quilty in these proceedings.

92. It is to be hoped that, attention having been drawn to this error, it will not recur.

Orders

1. The appeal be upheld.

2. The conviction and penalty be set aside.

3. The information be dismissed.

93. I will hear the parties as to costs.

I certify that this page and the seventeen (17) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 22 December 1998

Counsel for the Appellant: Mr G C Corr

Solicitors for the Appellant: pappas j - attorney

Counsel for the Respondent: Mr C Todd

Solicitors for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 11 November 1998

Date of judgment: 22 December 1998