R v Craft [2007] ACTSC 62 (9 August 2007)

Last Updated: 19 September 2008

R v DANIEL JAMES CRAFT
[2007] ACTSC 62 (9 August 2007)

CRIMINAL LAW – Trial by judge alone – dishonestly ride, dishonestly take motor vehicle – weight to attach to evidence of accomplices

Supreme Court Act 1933 (ACT), s 68C
Evidence Act 1995 (Cth), s 144
Criminal Code 2002 (ACT), ss 58, 300, 303, 318

Davies v Director of Public Prosecutions [1954] AC 378
Conway and Anor v The Queen [2000] FCA 461; (2000) 98 FCR 204
Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432
Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558
R v Galluzzo (1986) 23 A Crim R 211

No. SCC 244 of 2006

Judge: Higgins CJ
Supreme Court of the ACT
Date: 9 August 2007

IN THE SUPREME COURT OF THE )
) No. SCC 244 of 2006
AUSTRALIAN CAPITAL TERRITORY )

R

v

DANIEL JAMES CRAFT

ORDER

Judge: Higgins CJ
Date: 9 August 2007
Place: Canberra

THE COURT ORDERS THAT:

1. The accused be convicted on Count 1 of the indictment; and
2. The accused be acquitted on each remaining count.

1. The accused Daniel James Craft, has entered pleas of not guilty to the following counts on an indictment dated 22 November 2006, namely that he on the 24th day of July 2006 at Canberra:
Count 1

... dishonestly rode in a motor vehicle, namely a white Subaru Forrester [sic] bearing NSW registration VWL457 belonging to Shirley Dale which was dishonestly taken by someone else without the consent of the said Shirley Dale.
Count 2
... dishonestly took a motor vehicle, namely a white Holden Commodore bearing ACT registration YKM267 belonging to Rickie Clark without the consent of the said Rickie Clark.
Count 3
... dishonestly took a motor vehicle, namely a green Holden Calais bearing Victorian registration SBY169 belonging to David Betts without the consent of the said David Betts.
Count 4
... dishonestly took a motor vehicle, namely a blue Hyundai Excel bearing NSW registration JJ017 belonging to Jodie Johnson without the consent of the said Jodie Johnson.
Count 5
... dishonestly took a motor vehicle, namely a white Ford Laser bearing ACT registration YLI148 belonging to Kristen Cummings without the consent of the said Kristen Cummings.

2. The accused has elected to be tried by judge alone. Accordingly, the provisions of s 68C of the Supreme Court Act 1933 (ACT) apply. That section states:

Verdict of judge in criminal proceedings
(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.

3. Thus, as in any criminal trial, the accused is entitled to the presumption of innocence and the Crown bears the onus of proof of each element of each charge to the criminal standard, that is, beyond reasonable doubt. Any reasonable hypothesis consistent with innocence of the accused must be excluded.
4. Any verdict must be considered by reference only to evidence properly admitted at trial but including such matters of common knowledge as may be taken into account by virtue of s 144 of the Evidence Act 1995 (Cth).

The Crown Opening

5. Mr Lundy, for the Crown, relied upon the prosecution case statement. That case statement, relevantly, alleged as follows:

On 21 July 2006, the accused and Robert Foster travelled to Orange NSW so that Mr Foster could visit his sister. They travelled from the ACT to Orange in a Holden Commodore. Mr Foster stayed one night with his sister and the following day he was picked up by the accused who was driving a blue Hyundai Excel.
On the way out of Orange, the accused pulled into a service station to re-fuel. At the service station, the accused saw a Subaru Forrester [sic] with NSW registration VWL457 sitting parked with the door open, the keys in the ignition and the engine running. The accused asked Mr Foster to drive the Hyundai Excel and meet him down the road. The accused then got into the Subaru and drove it a short way down the road where the Hyundai was left. The accused and Mr Foster returned to the ACT in the Subaru.
During the ensuing days, including the 24 July 2006, the accused together with Mr Foster and another co-offender [RH] travelled around Canberra in the Subaru Forrester [sic].
On ... 24 July 2006, the accused, Mr Foster and [RH] travelled to Civic in the Subaru Forrester [sic]. Either Mr Foster or [RH] drove the Subaru with the accused as a passenger. (Count 1)
At the long stay car park on Childers Street, Acton (ACT), the three offenders saw a white Holden Commodore with ACT registration YKM267. The accused and Mr Foster broke into the vehicle through the boot using a flat head screwdriver and opened the driver’s door. The accused and [RH] snapped off the steering lock and the accused started the vehicle using a screwdriver and drove the vehicle to Mr Foster’s residence at 48 Cygnet Crescent, Red Hill. (Count 2)
Also on ... 24 July 2006, the accused and Mr Foster travelled to Tuggeranong in the Subaru with Mr Foster driving. [RH] drove the white Holden Commodore. Their intention was to find another Commodore to steal.
In the car park opposite the Southern Cross Club, they saw a green Holden Calais with Victorian registration SBY169. The accused and Mr Foster popped the boot with a flat head screwdriver and Mr Foster climbed through the vehicle and unlocked the doors. The accused and [RH] snapped the steering lock off and the accused started the vehicle with the screwdriver and drove the vehicle out of the car park. The three went to Weston Creek for a short time and returned to Mr Foster’s home in Cygnet Crescent Red Hill. (Count 3)
Sometime during the evening of 24 July 2006, the accused, Mr Foster and [RH] were again driving in the Subaru Forrester [sic]. Whilst driving through the Kingston/Barton area, they saw a blue Hyundai Excel bearing NSW registration JJ017 parked outside 43 Darling Street Barton.
Both the accused and Mr Foster broke into the Hyundai using a screwdriver and [RH] helped the accused snap the steering lock. The accused started the vehicle using the screwdriver and drove the vehicle back to Red Hill with Mr Foster and [RH] travelling in the Subaru. (Count 4)
At some point after 7.30 pm on 24 July 2006 the accused went to the Ainslie Football club car park and broke into a Ford Laser bearing ACT registration YLI148 by breaking the quarter window. The accused started the vehicle with a pair of scissors and drove it to the Dickson shops, where he drove around the car park before leaving the Ford Laser there.
Later during the evening of the 24 July 2006, the accused, Mr Foster and [RH] drove in the Hyundai Excel registration NSW JJ 017 to Queanbeyan, Civic and then to Dickson shops. The accused entered the Ford Laser being ACT registration YLI148, that he had previously left there and drove it to Mr Foster’s home at Red Hill. (Count 5)
On ... 25 July 2006, [RH] was arrested in relation to an unrelated incident. Whilst speaking to police, he told police of his involvement with the accused and Mr Foster. Later that same day, police went to 48 Cygnet Crescent Red Hill where they located all of the stolen vehicles. The accused and Mr Foster were both at the premises and were conveyed to Woden Police Station. Mr Foster took part in a taped record of interview with police and admitted his involvement with both [RH] and the accused. The accused also took part in a taped record of interview with police and denied any involvement in the theft or driving of any of the stolen motor vehicles. He told police that he did however “ransack” all of the vehicles, looking for property to sell.
The owners of all of the vehicles have been interviewed and have told police that at no time did they give any person their permission to take and drive their vehicles.

The Offences

6. The counts contained in the indictment engage s 318, Criminal Code 2002 (ACT) (the Code):

Taking etc motor vehicle without consent
(1) A person commits an offence if the person -

(a) dishonestly takes a motor vehicle belonging to someone else; and
(b) does not have consent to take the vehicle from a person to whom it belongs.

Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
...
(2) A person commits an offence if -

(a) the person dishonestly drives or rides in or on a motor vehicle belonging to someone else; and
(b) the vehicle was dishonestly taken by someone without the consent of a person to whom it belongs.

Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

7. The term ‘dishonestly’ is defined within s 300 of the Code. ‘Dishonest’ means:

(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.

8. Particularly for s 318, s 303 defines ‘dishonesty’ further in the following terms:

(1) a person’s appropriation of property belonging to someone else is not dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

9. Under s 58(3), a defendant relying on that belief or the reasonable possibility of its presence bears an evidential burden on that issue. Section 58(7) defines an evidential burden as meaning:

... the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

10. ‘Motor vehicle’ is defined in s 318(3). It includes a car such as the vehicles alleged to have been the subject of each count in the indictment.
11. The terms ‘take’, ‘drive’ and ‘ride in’ a motor vehicle are ordinary English terms and do not bear any special meaning.
12. It is a requirement of s 318 that, to be guilty of an offence against that section, the accused person must be proved beyond reasonable doubt, on the date alleged, to have voluntarily and intentionally taken, driven or ridden in a motor vehicle particularised in the particular count in question, ‘dishonestly’. The latter element will be satisfied by proof beyond reasonable doubt that the accused, took, drove or rode in the subject vehicle, as the case may be, knowing that the vehicle had been taken or was being used without the consent of the person or persons to whom it belonged and without lawful justification.
13. It is, however, clear that whilst one may ‘ride’ in a vehicle one has taken and/or is driving, one does not by merely being a passenger commit the offence of driving in or taking such a vehicle.
14. An example of lawful justification would be that it was necessary to move the vehicle to avoid damage or injury or if it was believed that consent to take or use the vehicle would be granted by its lawful custodian, if they were or became aware of the particular taking in question.

The evidence

15. The evidence in this case was given, in part, by statements from the lawful custodians of the vehicles in question that the same had each been taken without their permission, in circumstances under which no expectation of consent was likely. No such person had any association with the accused or his alleged accomplices so as to give rise to any expectation that those custodians would have consented to the taking in question.
16. In summary that evidence was as follows:

1. Ms Shirley Dale parked her white Subaru Forester, NSW registration VWL457 at Cargo in the State of New South Wales. She entered the service station outside which the vehicle was parked at about 3.45 pm on Friday 21 July 2006. The keys were left in the vehicle. It was missing on her return. She had not permitted anyone to take the vehicle.
2. About 8.00 am on Monday 24 July 2006, Ms Rickie Clark parked her white Holden Commodore ACT registration YKM267 in the long stay car parking area off Childers Street, Canberra City. It was locked. She later returned to find the vehicle missing. She had not given permission to anyone to take it.
3. About 8.00 am on Monday 24 July 2006, Mr David Betts parked his green Holden Calais Victorian registration SBY169 in the car park of the Southern Cross Club at Tuggeranong, Cowlishaw Street, Greenway. It was locked. He returned later to find the vehicle missing. He had not given permission to anyone to take it.
4. On Monday 24 July 2006, Ms Jodie Johnson parked her blue Hyundai Excel NSW registration JJ017 in Darling Street, Barton. It was locked. She later returned to find the vehicle missing. She had not given anyone permission to take it. The time it was parked is unstated.
5. Ms Kristen Cummings stated that, about 7.30 pm she parked her white Ford Laser, ACT registration YLI148, in the car park of the Ainslie Football Club, Ainslie. She left it locked. She later returned to find it missing. She had not permitted anyone to take it. Her statement is dated 4 September 2006 but the date she parked the vehicle is unstated. I infer from the subsequent events that it was 24 July 2006.

17. Constable Yoran Wolfkamp stated that at 10.12 am on 25 July 2006, with Constable Andre Webster, he attended Red Hill Flats, Cygnet Crescent, Red Hill, ACT.
18. At the rear of the flats, off Lady Nelson Place, he observed the white Subaru Forester, NSW registration VWL457. A short time later he observed the white Ford Laser, ACT registration YLI148. Also observed were the blue Hyundai Excel, NSW registration JJ017, white Holden Commodore, ACT registration YKM267, and the green Holden Calais, Victorian registration SBY169.
19. Constable Webster corroborated those observations. He examined YKM267. It contained a ‘blue Marist College bag’ with clothing and personal items with it bearing the name ‘[RH]’ and a suitcase with the name ‘Bernadette Searle’ on it. There were other items not belonging to Ms Clark.
20. RH attended to give sworn evidence. He had, as a young person, pleaded guilty to dishonestly riding in the Subaru Forester on 24 July 2006. He was further charged with dishonestly riding in and driving the white Commodore Sedan, riding in the green Holden Calais with Victorian registration, and riding in the blue Hyundai Excel. He had been charged with but acquitted of riding in the white Ford Laser.
21. Those vehicles, it is accepted, are those referred to in the indictment now under consideration. He had pleaded guilty to the other unrelated charges and received a sentence of 208 hours community service, and 12 months probation. There were additional charges of burglary, theft and riding in two other ‘stolen’ vehicles.
22. He said that he first saw the Subaru Forester in Red Hill. ‘Daniel’ was driving it. ‘Robert’ was a passenger. ‘Daniel’ referred to the accused. ‘Robert’ referred to Robert Foster. The vehicle was at the address of Robert Foster and his ‘current fiancée’. That was a reference to Ms Jocelyn Hill. They drove to Queanbeyan (NSW) to “score some ice” and then returned.
23. He was then asked:

17. ... following that time, did you go anywhere else outside of Canberra?
1. ... Not at that time, we did later on.
   

24. He said he, the accused, Robert Foster, the latter’s sister and a friend of hers all travelled to Orange. They stayed in Orange for about an hour and a half and then came back. He went in ‘one of the Commodores’. That could not have been the same trip to Orange when the Forester was taken.
25. The white Holden Commodore RH had pleaded guilty to riding in and driving, he first saw ‘at the CIT carpark’. ‘Daniel’ and ‘Robert’ broke into the vehicle. ‘Daniel’ drove it back to Red Hill. RH travelled back to Red Hill with Robert Foster, who drove the Forester. Both cars were then driven from Red Hill to Tuggeranong. There Mr Foster and the accused broke into a green Holden Calais. The accused drove it away. Mr Foster drove the Forester and RH drove the Commodore. They then, he said, drove around Civic. Whilst at Civic they found the white Ford Laser. They then headed towards Kingston. He said:

About 1 or 2 o’clock in the morning and we found a Hyundai Excel.

26. The registration was ‘JJ something’.
27. They had left the two cars other than the Forester back at Red Hill. The accused, with him as a passenger, drove the Hyundai Excel back to Red Hill. They then drove through Civic in various cars.
28. Robert Foster drove the Forester, the accused drove the Calais, [RH] was in the Commodore. They then found the Laser. The accused and Mr Foster had broken into it by the time RH pulled up. The three then returned to Red Hill, dropped off the Forrester and returned with the Commodore and the Calais to Dickson where the Laser then was. The accused still drove the Calais. They all then returned to Red Hill. RH put his and his fiancée’s bags in the Commodore.
29. These events occurred over three days ‘on different nights’. His recollection of the timing was:

... the Forester was one afternoon and then the next morning we went in a Commodore out to Orange and back in one day.

That Commodore was yet another vehicle. It was not the subject of these charges.

... that night we stayed at home and then the next morning we found the white Commodore, the green Calais, then later on that night it was the Ford Laser.
... after the Ford Laser, I’m pretty sure it was the blue Hyundai Excel and that was about 2 o’clock in the morning.

30. It is clear that this witness fails to fix with certainty the date of the taking and using of the five vehicles referred to in the charges. However, he did say:

... the morning that we got the blue Hyundai Excel we all went back to the address in Red Hill and we all fell asleep till about 11 o’clock in the morning.

31. He looked out the window and saw police outside dealing with the five cars.
32. However, the four vehicles, other than the Forester, had been left by their owners on 24 July 2006.
33. It may be inferred, therefore, that the using of four of the five vehicles, and the taking of three of them occurred on 24 July 2006. The taking and using of the Hyundai was on 25 July 2006. The Forester had been taken some days before, on 21 July 2006.
34. According to RH’s evidence, the accused drove the white Commodore and the green Calais each on 24 July 2006. He rode in the Forester on 24 July 2006. He did not have access to the blue Hyundai Excel until the early hours of 25 July 2006. He had taken the white Commodore and the green Calais. He did not see who took the white Laser but it could be inferred that the accused and Mr Foster did so. RH was arrested on 26 July 2006 after a shoplifting episode.
35. In cross-examination, he agreed he had used ‘ice’ the ‘night before’. That appears to have been a reference to the evening of the 24th July. He saw the accused using ‘ice’ also. He agreed that some of what he had said to police was ‘a bit off track to what actually happened but most of the details were correct’.
36. He denied that the prospect of him giving evidence had been mentioned to the sentencing magistrate. He asserted that over the period between 21 July and 25 July 2006 the accused had occasionally driven the Forester with him in it as a passenger. It cannot be inferred from this that the accused drove the Forester on 24 July 2006 but, of course, he is charged only with ‘riding’ in the Forester on 24 July 2006 and ‘riding’ includes driving though not, of course, vice versa.
37. He agreed that he could not say that the accused ‘took’ the Hyundai Excel, only that he drove it. He did reassert that he saw the accused take the Commodore and the Calais as well as the Ford Laser. He denied that he gave false evidence to curry favour with the prosecution.
38. He did not recall an occasion when the accused rode in the Forester without actually driving it.
39. It may be assumed that RH was aware by the time he came to be sentenced that it would be better for the outcome of his criminal conduct if he cooperated with police. Whilst he was not sure if the sentencing Magistrate was told of it, I would be surprised if he was not. It is clear that RH was, relevantly, an accomplice. He, in fact, had something to gain by the kind of cooperation represented by his evidence and the information he gave police following his arrest.
40. I must remind myself, with this and some later witnesses, that it is desirable, before accepting it, that the evidence of an accomplice should be corroborated in a material particular by evidence extraneous to the assertions of the accomplice. Indeed, I have to warn myself that it is dangerous to act on such evidence absent such corrobaration (Davies v Director of Public Prosecutions [1954] AC 378; Conway and Anor v The Queen [2000] FCA 461; (2000) 98 FCR 204).
41. In Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 Gaudron J affirmed the principle that one accomplice could not corroborate another. However, that principle was qualified by the High Court in Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558. That qualification started with the acceptance of the need in the case of each accomplice, for the warning referred to above to be given and heeded.
42. At 600, Dawson and Gaudron JJ stated:

The rule that one accomplice cannot corroborate another is based in large part on the common interest of accomplices in minimizing their involvement in the offence charged. That common interest raises the possibility that they may have conspired to give an identical but false account. It is for this reason that a direction is given that accomplices cannot corroborate each other.

43. The appropriate direction, affirmed by the New South Wales Court of Criminal Appeal in R v Galluzzo (1986) 23 A Crim R 211, is that the tribunal of fact may convict upon the uncorroborated evidence of an accomplice but it would be dangerous to do so. Corroboration is testimony independent of the accomplice, which connects or tends to connect the accused with the crime charged. It must confirm in some material particular the commission of the crime and that the accused committed it. It is not necessary that the evidence be direct nor that it confirm the whole of the accomplice’s testimony. That question must be considered separately in respect of each accomplice and each charge.
44. However, as noted above, a finding of guilt may be made, even in the absence of corroboration, provided that the warning I have referred to is heeded.
45. The next witness was Constable Burr. He interviewed RH. On 27 July 2006 he attended at 48 Cygnet Crescent, Red Hill. The accused and Robert Foster were there. They and Mr Foster’s then-girlfriend, Jocelyn Hill, were all questioned.
46. Mr Robert Foster, who next gave evidence, was another accomplice. He had also been sentenced in respect of offences including offences relating to the five motor vehicles the subject of these proceedings.
47. He gave evidence that he with RH and ‘Daniel’ (a reference to the accused) travelled to Orange, New South Wales where a where a white Subaru Forester was taken. They travelled to Orange “in a white Commodore”. On the way back, he said:

We didn’t have much fuel in the white Commodore so we stole a blue Excel from near the hospital ... in Orange and that didn’t have much fuel in it, so we seen the Subaru in the outskirts of Orange and we jumped in that and we followed each other down the road and then we all jumped in the Subaru and come back to Canberra.

48. The Subaru, it may be inferred was the same vehicle, the Forester, as was located by police outside Mr Foster’s address in Red Hill on 25 July 2006. It was taken on 21 July 2006 so that these events to which Mr Foster referred must have occurred on 21 July 2006. Neither the white Commodore nor the blue Excel referred to by him could be the similar vehicles referred to in the indictment.
49. The next vehicle relevant to these proceedings was a white Holden Commodore. That vehicle, Mr Foster deposed, ‘was stolen in the carpark in Civic’. ‘Daniel’ (a reference to the accused) was ‘just accompanying me’.
50. They travelled to Civic by bus and took the Holden Commodore back to Red Hill. That vehicle, I infer, was the same white Commodore found by police on 25 July 2006 and which had gone missing on 24 July 2006. Mr Foster asserted that the accused rode in it and the circumstances would support the commission by the accused of such an offence. However, that is not the charge against the accused in respect of that vehicle.
51. Mr Foster next referred to the green Holden Calais. He went to Tuggeranong and took it from the carpark ‘across from the Youth Centre and across from the RSL’. He travelled there with RH and the accused in the white Commodore. The Commodore was low on fuel so they took the Calais. He stated they ‘left the white Commodore in Tuggeranong’. They took the green Calais back to Red Hill.
52. That, of course, does not explain if it be the same white Commodore that belonged to Ms Clark, how that vehicle got back to Red Hill so as to be there on 25 July 2006.
53. He then added further confusion by claiming to have stayed home after that event ‘for a couple of days’.
54. A blue Hyundai Excel he recalled was stolen from ‘Civic or Braddon’. They drove it around ‘till it ran out of gas’. He took it and drove it. He did say, as to the accused:

I think Daniel drove it once or twice, but that was mainly around Red Hill.

55. I note that the accused is not charged with driving or riding in that vehicle nor the white Commodore, if it be that belonging to Ms Clark.
56. Next Mr Foster was asked about the white Ford Laser. He ‘stole’ it, he said, from Ainslie. He stole it to get home. No other person rode in it. RH and the accused were in ‘a Subaru’. He provided no details of the accused’s use of the Ford Laser, if any. He agreed that he had been taking ‘ice’, ‘pot’ and ‘ecstacy’ over the relevant time period.
57. He did not recall whether his sentencing was influenced by his proposed cooperation in giving evidence. Again, however, as with RH, it must be assumed that it probably did.
58. In cross-examination he confirmed that the accused had been a passenger in the Subaru Forester but he only saw him in that role just before he stole the Ford Laser.
59. Mr Foster’s evidence supports the first count only.
60. Ms Hill was called. She was asked about the accused’s involvement with ‘cars’. She saw him, she said ‘in a Subaru Forester, a white one’ and ‘a white Holden Commodore, a green Holden Calais and a Hyundai Excel’. He was, she said, ‘a passenger in those cars’. These cars were ‘mostly’ in the carpark near the flats. She did not see the accused take any car.
61. Her evidence is corroborative of the accused’s involvement with the illegally taken motor vehicles, other than the Laser. It does not directly support any count other than the first.
62. The accused was interviewed by police on 26 July 2006. The interview commenced at 3.32 pm.
63. He was questioned first about stealing the Subaru Forester from Orange on 21 July 2006. He claimed that his only knowledge of that vehicle was that it was the vehicle that was parked near the flats in 48 Cygnet Street, Red Hill. He did admit to ransacking the vehicle, ‘looking for cash’. He did agree that he rode in it ‘to Cook Service Station to get cigarettes’. That was ‘Sunday’. Sunday would have been 23 July 2006. He knew, he said, that the vehicle was ‘hot’.
64. That constitutes an admission of dishonestly riding in the Subaru Forester but not on 24 July 2006.
65. He was next questioned about stealing the white Commodore, the subject of count 2. It was, he agreed, ‘at the flats’. He ransacked it for cash, he said, asserting, ‘every stolen car that pulls up there I ransack’. However, he denied taking, driving or riding in it.
66. He gave a similar answer in respect of the green Holden Calais (count 3) and the blue Hyundai Excel (count 4). He denied any knowledge at all of the white Laser (count 5).
67. It was put to him by police in questioning that each of RH and Mr Foster had told them that he, the accused, had broken into and taken the vehicles referred to.
68. That assertion, of course, is not evidence and it was denied by the accused. It is not entirely consistent with the actual evidence of either of those persons. The accused also denied ever having been to Orange.
69. RH alone gave evidence of seeing the accused drive the Subaru Forester. That was not, however, specifically related to 24 July 2006.
70. However, he did, he said, see the accused and Mr Foster break into the white Commodore. The accused drove it back to Red Hill. That would support the second count. He also claimed to have seen the accused and Mr Foster break into and take the green Calais. That would support the third count.
71. His evidence did not support the allegation that the accused ‘took’ the Ford Laser though it could have been him or Mr Foster based on what he said he observed.
72. The Hyundai Excel was not taken until the next day, that is, 25 July 2006, according to RH, after the Ford Laser was taken.
73. Neither Mr Foster or Ms Hill gave evidence that the accused took any of the vehicles referred to in counts two to five. The evidence did not support an allegation that he rode in the Subaru Forester on 24 July 2006. RH’s evidence, being contradicted by Mr Foster, could not safely be relied upon, though I would regard Mr Foster’s evidence as corroborated both by Ms Hill and the accused himself in his admissions to police.
74. On that ground alone, there would have been no evidence sufficient to support any of the counts in the indictment beyond reasonable doubt. Whilst count 1 was supported so far as the accused riding in that vehicle, by that I include ‘driving’ it, it did not support, even at that level, the offence alleged, that is, riding in the Subaru Forester on 24 July 2006 as opposed to the 23 July 2006.
75. Mr Perkins, however, chose to call the accused to give evidence. I have to remind myself that an accused person has no obligation to give evidence or otherwise to contradict the Crown case. He bears no onus to prove anything.
76. He did, however, give evidence and that evidence is to be taken into account, subject to that consideration.
77. He admitted to riding in the Subaru Forester but said that he took no cars that were not his. He asserted that he was, at the time, unaware that the Subaru had been unlawfully taken. He thought it belonged to a member of RH’s family. He found out later, he said, that it had been dishonestly taken from New South Wales.
78. Nevertheless, the following was adduced from the accused by Mr Perkins:

17. On 24 July last year do you recall being a passenger in a Subaru Forester?
1. Yes ...
17. Yes, how do you recall that, how do you remember?
1. Well [RH] come up to the flat that I was staying at and I asked him to give me a lift to the service station to buy some cigarettes.
17. And that’s the vehicle that you’re telling his Honour that a couple of days later, some days later, you found out that it wasn’t [RH]’s car at all?
1. Yes
   

79. That same day, he asserted, he ‘looked at’ various vehicles he believed to have been ‘stolen’. He remembered a white Holden Commodore and a green Holden Calais. He recalled the blue Hyundai Excel which had been driven to the flats by Mr Foster.
80. He was also asked, if, the same day, he saw a white Ford Laser with ACT plates. He agreed that he had but denied that he did anything with respect to it.
81. He agreed, in cross-examination, that he had told police that the Subaru ‘look[ed] pretty sus’ but claimed that realisation came ‘two or three days [after I rode in it]’.
82. The accused did not advance that explanation for riding in the Subaru when questioned by police, though his admission on that occasion related to the 23 July 2006 only. It was put to him, but he denied, being present when the other vehicles, the subject of counts 2 to 5, were stolen.
83. In cross-examination, he resiled from the suggestion put to him by his counsel as to the date he rode in the Subaru Forester saying:

It might have been the 23rd, I’m not sure.

84. He had been told of the vehicle having been stolen, he said, earlier on the day of his arrest. It was not suggested to either RH or Mr Foster that they had told the accused, only after 24 July 2006, that the Subaru had been stolen.
85. I will not recite the addresses of counsel save that Mr Lundy submitted that I should accept the evidence of the two accomplices, Messrs RH and Mr Foster, corroborated to an extent by Ms Hill. He also pointed to the admission of the accused which, to an extent, supports the Crown allegation involving the accused with the vehicles in question.
86. Mr Perkins relied on the accused’s evidence in denial of his guilt.

The Verdict

87. In relation to the evidence of the accused, I have to say I found it unpersuasive. In particular his claim to have been told only after several days following either 23 July 2006 or 24 July 2006 that the Subaru motor vehicle had been ‘stolen’. He told the police he knew, as at 27 July 2006 and, I infer, since those vehicles appeared outside the Cygnet Crescent flats, that those vehicles were ‘stolen’. Certainly, I am satisfied that, by 24 July 2006, he was well aware that the Subaru was also dishonestly taken. That much is confirmed by the two witnesses, Messrs Foster and RH. Despite their status as accomplices and their motive to minimise their participation, particularly in the case of RH, I was persuaded that, on that particular point at least, their evidence was truthful and accurate.
88. Having said that, it is apparent that only the evidence of RH supports the prosecution case that the accused, on 24 July, ‘took’ any of the ‘stolen’ vehicles. That he ‘rode’ in them all and ‘drove’ some of them I have no doubt but that is not the charge. RH supports only the second and third counts. Why when that became apparent there was no application to amend the charges or to add alternatives I cannot say but there was no such application.
89. In addition, with respect to the Ford Laser (count 5) it is apparent that the only evidence concerning its taking is that it occurred between 1 am and 2 am on 25 July 2006. Again, despite that having clearly emerged in the Crown case, there was no application to amend that charge.
90. It follows that there must be a verdict of not guilty recorded in respect of counts 4 and 5. In the light of the conflict of evidence between Mr Foster and RH, I have a reasonable doubt as to whether the accused, even in concert with Mr Foster, ‘took’ the vehicles in counts 2 and 3.
91. So far as count 1 is concerned the only issue, so far as the accused riding in the Subaru Forester, is whether he did so on 24 July 2006. Certainly, he admitted doing so on 23 July 2006. In evidence he agreed with 24 July 2006 as the last date upon which he had ridden in the Subaru. He did, in cross-examination, express some reservation in respect of that admission in response to Mr Lundy seeking to question it.
92. Despite this apparent confusion, I am satisfied that the accused had ridden in the Subaru on 24 July 2006. Given the constant churning of ‘stolen’ vehicles it defies belief that the one constant vehicle, the Subaru, was the only vehicle of the four there and being used on 24 July 2006 that the accused had not ridden in either as a driver or as a passenger.
93. It follows that I find the accused guilty of that offence (count 1).

Verdict Count 1 – guilty

Count 2 – not guilty

Count 3 – not guilty

Count 4 – not guilty

Count 5 – not guilty

I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 9 August 2007

Counsel for the Crown: Mr J Lundy
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Mr D Perkins
Solicitor for the accused: Darryl Perkins Solicitors
Dates of hearing: 22 May 2007 and 8 June 2007
Date of judgment: 9 August 2007