R v Tran [2004] ACTSC 68 (19 August 2004)

Last Updated: 17 September 2004

R v PHUONG QUI TRAN [2004] ACTSC 68 (19 AUGUST 2004)

CRIMINAL LAW - trial by Judge alone.

Supreme Court Act 1933 (ACT), s 68C

Evidence Act 1995 (Cth), s 191

Crimes Act 1900 (ACT), s 105

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250

Atwal v Massey [1971] 3 All ER 881

Williams & Weinberg, Property Offences, 2^nd ed, 1986

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50

No. SCC 172 of 2003

Judge: Gray J

Supreme Court of the ACT

Date: 19 August 2004

IN THE SUPREME COURT OF THE )

) No. SCC 172 of 2003

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

PHUONG QUI TRAN

ORDER

Judge: Gray J

Date: 19 August 2004

Place: Canberra

THE COURT FINDS THAT:

The accused is guilty of the offence that on the 22^nd day of July 2003 at Canberra in the Australian Capital Territory, he dishonestly had stolen property in his possession namely, Westpac Bank Corporation cheques numbered 0200078, 0200082, 0200083, 0200084 and 0200086 in the name and account of K & S Gibbs, knowing or believing that property to be stolen property.

FURTHER, THE COURT FINDS THAT:

The accused is guilty of the offence that on or about the 23^rd day of July 2003 at Canberra aforesaid, he dishonestly had stolen property in his possession namely, one St George Multi Access Visa card number 4239530011754745 in the name of D K Anthoness, knowing or believing that property to be stolen property.

1. Phuong Qui Tran (the accused) is charged with two counts of dishonestly having stolen property in his possession and knowing or believing that property to be stolen property.

2. The first count involves five cheques related to a Westpac cheque account in the name of Kevin & Susan Gibbs. Those cheques were found in a handbag belonging to the wife of the accused during a police search of premises occupied by the accused and his wife on 22 July 2003. The second count relates to a multi-access Visa card in the name of David Anthoness which was found in the accused's property at the Belconnen Remand Centre on 29 July 2003 but, which evidence in the trial indicated, came into the accused's possession on or about 23 July 2003. I permitted an amendment to the indictment to reflect this circumstance.

3. The accused was arraigned on the charges on 29 June 2004 and pleaded not guilty. Before the allocation of a trial date, he had elected to be tried by judge alone.

4. The procedures to be followed where there is a trial by judge alone are set out in s 68C of the Supreme Court Act 1933 (ACT),

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

5. I take those provisions to not only require the setting out of the principles of law and the findings of fact, but also the reasoning process linking them and justification provided for the verdict ultimately reached (Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250).

General directions

6. The general directions which I give to myself are as follows,

The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

(See R v Tran [2003] ACTSC 53 at [4] and [5].)

The facts

7. The facts concerning the offences charged were the subject of an agreed statement of facts tendered pursuant to s 191 of the Evidence Act 1995 (Cth). The facts as agreed are,

Count 1

1) At all relevant times Kevin & Susan Gibbs did not authorise anyone to operate their account and that the cheques that were used came out of the stolen cheque book which the Westpac Bank posted to their address. They left for New Zealand on the 3^rd of July 2003 for a 2 week holiday prior to them receiving the same.

2) The Westpac Bank Corporation cheque numbers 0200084, 0200078, 0200083, 0200086 and 0200082 in the name and account of K & S Gibbs were located and seized by Const Dwyer on the 22^nd July 2003 from the handbag of Chau Quach, the wife of the accused, at 58 Condell Street, Belconnen where both the accused and his wife reside.

3) On or about 26^th August 2003 the police took a tapelift from the Westpac cheque number 0200086 dated 17^th July 2003 in the sum of $5,200. DNA analysis found a mixed profile from a minimum of 2 individuals. The accused could not be excluded as a contributor to that mixed DNA profile.

4) On or about the 22 August 2003 a fingerprint (right ring finger) of Phuong Qui Tran was located on Westpac cheque number 0200078 in the sum of $4,547

5) The cheque numbered 0200075, in the amount of $6785.30, from the Gibb account, was, on 17 July 2003 deposited into the accused's account and dishonoured before it could be drawn upon. This cheque was drawn in a way similar to the other cheques.

Count 2

1. On 22 July 2003 the accused was arrested at Reid, in the Australian Capital Territory by members of the Australian Federal Police.

2. On or about 22 July 2003 a Magistrate refused the accused's application for bail.

3. On days including 29 July 2003 the accused was detained at the Belconnen Remand Centre.

4. On 29 July 2003 a valid search warrant was executed at the Belconnen Remand Centre by Australian Federal Police Constables Craig Faram and Brett Wood.

5. During the execution of that search warrant a St. George Multi Access Visa Card number 4239530011754745 in the name of D K Anthoness was seized by Constables Faram and Wood from a black wallet belonging to the accused held at the Belconnen Remand Centre in a sealed plastic bag.

6. At all relevant times Mr David Keith Anthoness had not authorised the accused or anyone else to be in possession of his card.

8. Those facts were supplemented by the tender of Mr Anthoness' statement to establish that the credit card, the subject of the second count, was in fact stolen.

The elements of the offence

9. Section 105 of the Crimes Act 1900 (ACT) provided,

105 Handling stolen property

(1) A person who, dishonestly -

(a) receives stolen property; or

(b) has stolen property in his or her possession; or

(c) undertakes the reception, retention, removal, disposal or realisation of stolen property for the benefit of another person;

and who knows or believes that property to be stolen property, is guilty of an offence punishable, on conviction, by imprisonment for 14 years.

(2) Subsection (1) does not apply to or in relation to the handling of stolen property in the course of stealing that property.

10. Accordingly, the elements of the offence charged are,

(a) that the property was stolen;

(b) the property was in the possession of the accused;

(c) that the accused dishonestly had that property in his possession; and

(d) that the accused knew or believed that property to be stolen property.

The issue

11. It is apparent from the statement of agreed facts that the real issue in this case is whether the prosecution has proved beyond reasonable doubt the element of the offence that the accused knew or believed the property to be stolen. There was a suggestion made by Mr Everson, counsel for the accused, that, standing by themselves, the agreed facts would not satisfy the standard of proof beyond reasonable doubt required to prove the element of possession. However, the agreed facts must be looked at in the context of the evidence as a whole and on the defence case, as it transpired, the question of possession did not become an issue.

12. It was also conceded that this case did not raise any issue as to whether the possession was dishonest in the sense of there being circumstances involving a claim of right or mistake. In the event of it being proved beyond reasonable doubt that the accused knew or believed the property to be stolen, this element would also be made out.

13. The question as to the accused's knowledge or belief that the property was stolen is a matter of actual knowledge or belief. It is not what any other person in the circumstances of the accused might have known or believed, however, knowledge or belief may be inferred or concluded from a consideration of the surrounding circumstances - provided any such inference or conclusion is a rational one (not based on speculation or conjecture) and provided also that it is the only rational inference or conclusion open on the evidence.

14. Grounds for suspicion are not enough. Mere negligence or carelessness or even recklessness in not realising that the goods were stolen, is not sufficient. The question is not `Ought the accused have realised that they were stolen?', it is, `Did he know or believe that they were stolen?' (cf Atwal v Massey [1971] 3 All ER 881 at 882). As far as belief is concerned, what is required is a firm conviction on the part of the accused that the goods were stolen (Williams & Weinberg, Property Offences, 2^nd ed, 1986 at 385-386).

The defence case

15. The accused did not give evidence but he called Mr Geoffrey Williams. Mr Williams gave evidence that in the middle of 2003 he was approached by the accused for a loan of money. Mr Williams described his occupation as `on worker's compensation'. He told the accused that he did not have any money but that he would see someone who probably could lend the money to him. He said that he approached a Michael Rimmer who `wrote a cheque out of his cheque book and he signed it' in front of him. Mr Williams did not look at the cheque but he subsequently gave it to the accused. He said that he was `subsequently given another three or four cheques'. He also said that he gave those cheques to the accused (presumably the five cheques the subject of the first count) and, at that time, he `sat' the `key card' (the subject of the second count) down with those cheques and `forgot to pick ... the card back up'. His evidence as to the reason for giving the accused the cheques the subject of the first count was,

And the cheques other than that single cheque that is in Exhibit C, those other cheques, what about those, how did you come to be giving those to Mr Tran? - - - Well ...(indistinct) ... they were given to me and because Mr Tran was in a bit of difficulty at that stage I gave him more cheques.

16. Mr Williams' evidence in chief was very short and the summary in the preceding paragraph contains all the salient matters deposed to in his evidence in chief.

17. The five cheques which the accused received from Mr Williams drawn on the Westpac Bank in the name of K & S Gibbs and were all made out to cash. They were also in similar handwriting made out for varying dates and amounts. They were, taking the most convenient identifying number, made out for the following amounts and dates,

78 $4,547.00 No date on cheque

82 $5,890.00 16.07.03

83 $4,998.00 17.07.03

84 $6,769.20 18.07.03

86 $5,200.00 17.07.03

The total sum represented by these cheques was $27,404.20.

18. The first cheque that was apparently given to the accused by Mr Williams (and was the cheque deposited in the accused's bank account) bore the identifying number, amount and date,

75 $6,785.30 16.07.03

19. There was no explanation by Mr Williams as to why the accused would wish to borrow such significant sums. In cross-examination, Mr Williams gave a most unconvincing explanation of why he would wish to help the accused. Mr Williams said he had been in gaol and was out of gaol for only about four weeks in the middle of 2003 when these events took place. He said the accused came around to his place in that time to see his ex wife `twice a week' and that was how he met the accused. He said also that he got the first cheque on the basis that the accused said he wanted over $5,000.00, but Mr Williams further said that he did not know how much the cheque was written out for. He said he told the person giving him the cheque, and presumably loaning him (Mr Williams) the money, that he would get it back to him `as soon as Mr Tran paid me'. The evidence given of this transaction was simply unconvincing both in its content and in the way it was given.

20. However, on any interpretation of Mr Williams' evidence, the accused's request for a loan was satisfied by the cheque for $6,785.30 which he banked. Indeed, I cannot draw from Mr Williams' evidence a need for a loan of more than $6,000.00 or $7,000.00. That seems to be the conclusive effect of the following passage from Mr Williams in cross-examination,

You didn't know how much he wanted, he just said some money? - - - He just said that he wanted money, I knew it was a couple of thousand or something.

So you now think it was a couple of thousand? - - - Well, I can't remember the exact conversation going that far back.

All right. So he certainly didn't say to you, "Could I borrow $6,785.30", did he? - - - I'm not saying he did, I'm not saying he didn't, I can't remember that far back.

Right. So would you agree it's a pretty unusual sort of an amount, $6,785.30? - - - Well, maybe he never asked for that amount, maybe he asked for around 6 or 7,000, and I put more on it, less on it, I don't know.

21. Importantly, there is no assertion by Mr Williams that the additional cheques that he later handed over had anything to do with the loan transaction to which he had deposed. His evidence in cross-examination was that the next day he and Michael Rimmer went to see the accused, that Mr Rimmer waited downstairs and that he was given more cheques which he handed to the accused,

... You were given more cheques? - - - That's correct.

By Mr Rimmer? - - - Yes.

Did you ask him to give them to you? - - - No, I did not.

He just handed these cheques over? - - - Well, I don't know if he wanted - wanted me to hold them or what he wanted me to do with them, but I gave them to Mr Tran.

All right. Now there were five cheques, do you remember Mr Rimmer giving you five cheques? - - - No. As I said earlier in my statement, he gave me one and ...(indistinct)... there was three or four.

All right. Did you look at the cheques? - - - No.

You didn't see how much money was on the cheques? - - - I didn't even know if the cheques were filled in.

All right. And you gave them to Mr Tran? - - - Well, I sat them down, I gave the cheques to Mr Tran, I had the Visa card in my wallet, I took it out - out of my wallet.

So you physically gave those cheques to Mr Tran? - - - That's correct.

He was also asked and responded in cross-examination on this aspect,

... All right. Did Mr Tran ask you for the cheques? - - - No, he did not. I offered - I gave them to him.

22. His evidence was also that `the key card was left on the coffee table', presumably inadvertently, and that when he went back to get it (`but not that day'), the accused had been arrested.

The accused's position

23. As I have said, the accused did not give evidence. I cannot and do not draw anything from this. That circumstance is not of itself evidence against the accused. Nor is it an admission by conduct nor can it fill gaps in the prosecution case. It cannot be used as a make weight in considering whether the prosecution has proved the accusation beyond reasonable doubt. The onus of proof is always on the prosecution to establish its case beyond reasonable doubt and as a general rule there cannot be an expectation that an accused give evidence at trial (cf Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 at 64).

24. I do not, however, have the accused's account of the receipt from Mr Williams of the five cheques or of the circumstances concerning the key card as perceived by him. I must evaluate Mr Williams' evidence standing alone in determining whether it is a reasonable proposition that the accused did not know or believe that either the cheques or the key card had been stolen.

The effect of the defence case

25. There are a number of significant questions that arise from, but are not addressed by, Mr Williams' evidence. I have, apart from Mr Williams' evidence, nothing to suggest the need for the accused to obtain the loan nor is there any evidence of the prospects of repayment. There is nothing to explain why the unusual sum of $6,785.30 is the amount of the loan required by the accused.

26. A compelling inference fairly drawn from Mr Williams' evidence in respect of his delivery of the five cheques to the accused the day after he had given him the cheque as a loan is that those five cheques were not part of any loan arrangement.

27. Although Mr Williams maintains that he did not know whether these cheques were made out or not, their contents and the amounts for which they were drawn are apparent. It is a further inference that I draw that sufficient notice had been taken by the accused of the earlier cheque that was deposited in his account. Like the deposited cheque, the other cheques were drawn to cash on an account bearing no relationship to any person said to be known to the accused, in respect of amounts which were substantial and well in excess of what is said by Mr Williams to be the accused's need. Those matters, and the circumstances in respect of which the accused received the cheques, cause me to draw the further inescapable inference that the accused knew or believed those cheques to be stolen.

28. Separate consideration must be given to the circumstances concerning the key card; however, after considering those circumstances I draw the same inference with respect to the key card. Despite Mr Williams' evidence that he inadvertently left the key card behind, there is the fact that it was found in the accused's wallet. The key card obviously did not belong to Mr Williams. It was a card for an account held by a person who was not said to be known to Mr Williams or the accused. It was given to Mr Williams, on his evidence, at the same time that he was given the cheques. Mr Williams avoided professing any knowledge of the contents of the cheques or the key card details but I am not prepared to infer that, in the circumstances, there was a reasonable possibility that the accused did not know of the contents of either the cheques or the details of the card. Once the accused dealt with the key card by placing it in his wallet, it seems to me to be an inescapable conclusion that from its very nature, and by that action, it can be inferred that he knew or believed that it was stolen.

29. Mr Everson suggested that there could be no suggestion that steps had been taken to conceal the accused's possession of the items. That may be so, but it does little to assist in determining the accused's intent even assuming the circumstances were as Mr Williams deposed.

30. In my view, Mr Williams' evidence was totally unsatisfactory. Apart from the incredulity it engendered it did not, in my view, provide a reasonable hypothesis consistent with innocence in respect of the accused's knowledge or belief that the property was stolen. At best, it was directed towards the cheque that the accused, in fact, banked but his evidence was bereft of justification for any belief on the part of the accused in the other cheques as otherwise than as having been stolen. The same comment may be made in respect of the key card.

31. I find the charges proved in respect of each count of the indictment and return a verdict of guilty in respect of each.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 19 August 2004

Counsel for the Crown: Mr C Todd

Solicitor for the Crown: Director of Public Prosecutions (ACT)

Counsel for the accused: Mr C Everson

Solicitor for the defendant: Romano Satsia Kordis Legal

Date of hearing: 11 & 12 August 2004

Date of judgment: 19 August 2004