Chapman v Hains [2008] ACTSC 31 (28 March 2008)

Last Updated: 7 May 2008

JEFF CHAPMAN v HARRY THOMAS HAINS

[2008] ACTSC 31 (28 March 2008)

CRIMINAL LAW - appeal from decision of the Magistrates Court of the Australian Capital Territory - appellant charged with receiving property knowing or believing it to be stolen - appellant's explanations consistent with innocence led in prosecution case - evidential burden displaced so as to defeat presumption that appellant knew or believed received property was stolen - Crown required to prove charge beyond reasonable doubt - evidence as to knowledge or belief insufficient to negative hypotheses consistent with innocence

EVIDENCE - evidential burden displaced by evidence led in prosecution case

Criminal Code 2002 (ACT), ss 58(7), 313, 324, 366(5), 366(6)

EX TEMPORE JUDGMENT (REVISED FROM TRANSCRIPT)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 100 of 2007

Judge: Gyles J

Supreme Court of the ACT

Date: 28 March 2008

IN THE SUPREME COURT OF THE )

) No. SCA 100 of 2007

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JEFF CHAPMAN

Appellant

AND: HARRY THOMAS HAINS

Respondent

ORDER

Judge: Gyles J

Date: 28 March 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld, the conviction be set aside and the appellant be discharged.

2. The respondent pay the reasonable costs of the appeal as agreed or to be assessed.

3. The respondent pay the costs of the proceeding before the Magistrates Court.

1. On 19 October 2007 the appellant was convicted of a count of dishonestly receiving stolen property, namely assorted jewellery, knowing or believing that property to be stolen property contrary to s 313 of the Criminal Code 2002 (ACT) (the Code). The facts can be sketched quite shortly so far as is relevant to this appeal.

2. On 19 May 2007 the appellant was arrested and charged with receiving a quantity of jewellery from a Mr Kitanovic. The exchange was observed by a number of police officers who arrested the appellant almost immediately. At the time of his arrest the appellant claimed that the jewellery was given to him for appraisal. He then consented to a record of interview which was recorded on tape by video, and a transcript of that interview and the video were tendered in evidence by the prosecution. I need not set out all that was encompassed by that interview, but some salient points can be made.

3. The first is that the appellant said he was a manufacturing jeweller and had been so for many years. He said that he had had dealings with the family of Mr Kitanovic over the years in relation to jewellery, in particular making jewellery for them. He affirmed again that he had been given the jewels for appraisal, although there was some suggestion that there may also have been manufacturing in view at some point. He claimed that he had had a number of dealings with Mr Kitanovic in connection with an opal mine at Lightning Ridge which he owned and conducted and in relation to which Mr Kitanovic had worked. Mr Kitanovic had been involved for a period prior to the interview in organising for another trip to Lightning Ridge, in the course of which the appellant had provided him with funds for various reasons. The appellant claimed that he had no reason to believe that Mr Kitanovic was a thief and no reason to believe that the goods had been stolen. It was not in issue that the goods were stolen.

4. An application was made at the end of the prosecution case for the appellant (then defendant) to be discharged, there being no case to answer. In opening the case, the prosecutor referred to s 366 of the Code as assisting the prosecution case. The appellant was charged with breach of s 313 of the Code. Proof of receiving the stolen property is not in issue in any relevant sense. Proof of the element of knowing or believing the property to be stolen has historically provided particular difficulties. There is an additional element in this offence of "dishonestly" receiving the stolen property, although query the practical significance of that if knowledge or belief is proved.

5. The significance of s 366(5) and s 366(6) is as follows. In the course of the submission that there was no case to answer, counsel for the appellant submitted that s 366(5) had no continuing operation because the evidential burden referred to in subsection (6) had been met. That requires consideration of, in particular, s 58(7) of the Code, which defines evidential burden in relation to a matter to mean:

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

The prosecutor submitted that the evidential burden had not been carried.

6. The learned Magistrate simply announced that there was a prima facie case, and the matter then proceeded. The then defendant, the present appellant, did not give evidence, and after further submissions were received, the Magistrate, in an economical judgment, found the charge proved beyond reasonable doubt.

7. It is accepted on the part of the respondent, represented by the Director of Public Prosecutions, that there are deficiencies in the reasons given by the Magistrate for that conclusion. The most significant was a reference in the course of the reasons to reasonable suspicion to believe. That may have been a reference to s 324 of the Code, which relates to another offence, or it may have related to the Magistrate's recollection of the way in which charges of this kind could be laid under the law as it previously stood. Reference to suspicion in a case like the present is inapt and likely to almost certainly lead to a wrong approach.

8. The other possible difficulty is the reference the Magistrate made to wilful blindness. The place of wilful blindness in proof of a state of mind is a controversial aspect of the law, but in the present case the reference to it is difficult to fit with the facts as they were presented.

9. Those errors require me to scrutinise the evidence to see whether the correct result of the case is to allow the appeal, or whether, when the matter is reviewed in the light of the findings that were made, to confirm the verdict. I need not, for the purposes of this judgment, deal extensively with the role of the Court in relation to a magistrate's decision.

10. The learned Magistrate did not refer to s 366 in her reasons for conviction. It is difficult to know why that is so. It may be that she had been persuaded by the argument put for the present appellant that it was inapplicable. It may be that she did not see it as being crucial to the result as she obviously took the view that there was ample evidence in any event. However, I must consider the matter for myself.

11. The first question which arises is whether, as then submitted and now submitted for the appellant, the phrase "pointing to evidence" enables a defendant in this situation to point to evidence which has been led in the prosecution case. In my opinion, the wording of the definition of "evidentiary burden" in s 58(7) must be construed in that fashion. Insofar as it is appropriate to refer to extrinsic material, such as the Explanatory Memorandum, I believe that that understanding is confirmed.

12. The second question is whether any evidence which is pointed to suggests a reasonable possibility that the matter exists or does not exist. In the present case, the matter that is to exist or not exist is knowledge or belief about the property being stolen. Counsel for the appellant submits that, first of all, the explanation proffered at or about the time of arrest (which was led in evidence) is, in itself, sufficient to satisfy the evidential burden and, secondly, that many of the answers in the record of interview also plainly satisfy the evidential burden. It seems to me that that submission is correct. If the appellant's version were correct, then he simply did not have the knowledge and did not have the belief. That does not turn only upon his statement that that is the fact, but the surrounding circumstances to which he would point, if correct, would lead to the same result.

13. Thus, in my opinion, the presumption raised by s 366(5), is set aside because there is evidence to the contrary within the meaning of s 366(5) understood in the light of s 366(6). The consequence of that ruling is that the matter should be looked at as a charge requiring proof beyond reasonable doubt in accordance with ordinary principles. The task of proving this offence in the absence of admissions by the accused, in the absence of direct evidence from a person complicit in the transactions, and in the absence of compelling eye witness evidence is extraordinarily difficult. To prove knowledge or belief of a fact is notoriously problematic.

14. It is fundamental, of course, that in a case such as the present, where circumstantial evidence is the only evidence that is available for proof of these elements, the Crown must negative hypotheses consistent with innocence. In the present case there was no evidence led to falsify the explanations given by the appellant. If such evidence had been led then there would be a question as to how to dispose of the matter. In the absence of that, however, I cannot see that, on ordinary principles of proof beyond reasonable doubt, a number of hypotheses have been disproved. That which the appellant puts forward is, of course, the principal hypothesis.

15. So, in my respectful opinion, looked at in that way, in truth, there was no case to answer. The matter probably should have been resolved at that level. But, it not having been resolved at that level, in my view there was no proper basis upon which a conviction beyond reasonable doubt could have been found. Thus, in my opinion, for reasons more fundamental than the errors to which reference has been made, the appeal must succeed whatever view is taken as to the role of the Court on this appeal.

16. The formal order is the appeal is upheld, the conviction is set aside and the appellant is discharged. The respondent should pay the reasonable costs of the appeal as agreed or to be assessed. I also order that the respondent pay the costs of the proceeding before the Magistrates Court.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gyles.

Associate:

Date: 14 April 2008

Counsel for the Appellant: Mr S Gill

Solicitor for the Appellant: Ken Cush & Associates

Counsel for the Respondent: Mr M Thomas

Solicitor for the Respondent: Director of Public Prosecutions

Date of hearing: 28 March 2008

Date of judgment: 28 March 2008