1 This is a review of a decision by Magistrate Simon Cooper delivered on 17 May 2013 by which, following a hearing, he dismissed a complaint against the respondent, Rocco Caccavo.

2 On complaint number 3009/12, the respondent was charged with one count of receiving stolen property contrary to the Criminal Code, s258. The particulars of the charge were as follows:

"You are charged with on or about the 8th April, 2011, at Hobart in Tasmania, without lawful excuse receiving stolen property, namely, 1x pallet of Smoked Salmon sides to an approximate value of $8080.00 knowing same to be stolen property."

3 There was no dispute that the respondent had acquired the relevant salmon and from whom. There was also no dispute that the person from whom he had acquired the salmon had stolen it. The issue at the hearing before the learned magistrate was the state of the respondent's knowledge about the salmon's status when he acquired it.

"1. The learned magistrate erred in fact and / or in law in finding the respondent not guilty of the offence where [on] no reasonable view of the evidence could he have failed to be satisfied beyond reasonable doubt of the guilt of the respondent.

1. The learned magistrate erred in fact and / or in law in finding that he was not satisfied beyond reasonable doubt that the necessary mental element had been established in the case."

5 The reasons of the learned magistrate were as follows:

"DECISION - HIS HONOUR: Mr Caccavo is charged with on or about the 8th of April, 2011, at Hobart in Tasmania without lawful excuse receiving stolen property, namely one pallet of smoked salmon sides to an approximate value of $8,080.00 knowing the same to be stolen property. Charges were laid pursuant to s258 of the Criminal Code (1924).

The following facts are not in dispute and I find them proved that on or about the 8th of April, 2011 Mr Caccavo was at Derwent Park which is part of Hobart in possession of a pallet or part thereof of smoked salmon which smoked salmon had been stolen form the cool store at Tasports in Hobart. The property in question, that is to say, the smoked salmon, was the property of Tassal and Mr Caccavo was in possession of it at least at the cool store at Tasports as well at Island Markets, Derwent Park in Hobart. The salmon had been taken, stolen, by Mr Jeremy Kelly who was as at the 8th of April, 2011 an employee of Tasports and was employed at the cool store as a storeman. As I said a moment ago there is absolutely no doubt whatsoever about any of this and so find and none of it I understood was the subject of any challenge.

The issue for me to determine however is has the Prosecution proved beyond reasonable doubt each element of the crime and specifically has it proved beyond reasonable doubt the mental element of the crime? The mental element of offences or crimes under s258 of the Criminal Code has been the subject of judicial observations and comment. In R v Dick Tas unreported 1999 - wrong, 99 of 1982 Mr Justice Cosgrove had this to say as to the mental element:

'It is necessary to prove that an accused believed that the goods were stolen. It must be proved that he believed that to the exclusion of all other propositions. Not that he thought they were probably stolen or that they were very likely stolen or that he was just about convinced they were stolen but that he believed they were stolen and would not accept anything else. Anything short of faith in the proposition is less than belief.'

In Grundy v The Queen (1994) Tasmanian Supreme Court 111 the Court of Criminal Appeal was dealing with a charge amongst other things, under s258 of the Code. Justice Underwood as he then was said:

'For the purpose of the crime of receiving guilty knowledge arises is an accused believes that the goods were stolen to the extent that his mind, his or her mind will admit to no possibility other than that the goods were stolen.'

His Honour referred then to The Queen v Dick which I've already referred to and went on to say that:

'Although the relevant section speaks of knowledge the question is one of belief.'

which is of course consistent with the comments of Cox J as he then was in the same case and also Burbury CJ in The Queen v Quiller (1962) Tas State Reports 370, noted case 16.

It's worth reminding myself that the onus is at all times in a case such as this upon the Prosecution and it is necessary for the Prosecution to prove beyond reasonable doubt every element of the offence alleged including the mental element in this case. The defendant bears no onus whatsoever. The question for me is has that onus been discharged?

I turn to the evidence. Primarily the evidence from which belief could be proved, the requisite belief could be proved came from Mr Kelly (sic). I was asked to warn myself pursuant to s165 of the Evidence Act and I do. I warn myself that I have to approach at the very least his evidence with a degree of caution given that he is a criminally associated person in the context of that section.

I then turn to the evidence in relation to belief. First, there was a deal made of a telephone communication and the records thereof as between the defendant and Mr Kelly (sic). I had before me details of those telephone communications together with a chart that had been prepared which was of assistance in deciphering those records. They reveal that there was one text in two calls on the 8th of April, one text, the defendant Mr Young, I've been calling him Mr Kelly, I meant Young, on the 1st of May, one text, Young to the defendant on the 5th of May and the other on the 10th of May, another text on the 11th of May, defendant to Young - two on the 15th of May, both Young to the defendant another from the defendant to Young on the same day. There was another text, Young to the defendant on the 19th of May. Further contact by call and text in July. More in September, the 15th and 18th of September and then more relevantly perhaps, the night before the 20th of October when there was one text, the defendant to Mr Young and seven texts from Mr Young to the defendant. However at their absolute highest those records may only prove that texts or calls were made to and/or from a telephone registered to Mr Young and/or to or from a telephone made - registered to the defendant.

Leaving aside Mr Young's evidence there is no objective evidence whatsoever as to the content of either the texts or any of the calls or even if the defendant used the telephone on the dates in question or received or made the calls or received or made the text messages himself.

Mr Young said turning to the October ones that on Tuesday the 18th of October he tried to ring the defendant to, his words, 'prewar' him about an impending visit from the Marine Police and that he left a message. The phone record in evidence does not support this, no objective evidence supports it.

In fact the phone records, assuming even that they are indicative of contact made as between the defendant and Mr Young are essentially consistent with the defendant's account as appears from his statement that he handed to police that was in evidence and also his record of interview.

Now, as to those telephone contacts, assuming for a moment that I am able to conclude, which I cannot, that there was even contact as between Mr Young and Mr Caccavo, Mr Glenn Burke gave evidence that it was not a part of Mr Young's job to contact clients, however Mr Young said in answer to questions in cross-examination that there had been some contact and that amongst other things he had let Mr Caccavo know when stock arrived. This again is broadly consistent with the version of events that Mr Caccavo offered both to the police and also in his statement prepared I think by or with the assistance of a solicitor that was handed to police and ended up before the court.

For those reasons I'm not persuaded that the telephone records are particularly indicative of any guilty knowledge and certainly do not allow the conclusion (indistinct word) that even with the evidence of Mr Young that would satisfy the mental element requirements that I've already outlined.

Other issues cause me to conclude that the onus hasn't been discharged. It seems common ground that the transaction occurred in the course, and by transaction I mean that Mr Caccavo took possession of the stolen fish, that occurred in the cool store, it occurred in a cool store covered by CCTV accessible to various other fellow employees as well as clients. The transaction itself, at least its on-sale to Mr Ralph Caccavo was recorded by Mr Ralph Caccavo as well as this defendant in the respective records. Mr Caccavo said in his statement that was tendered in evidence that in fact he'd taken possession of the salmon that's partially thawed, at least some of it initially and in two to three weeks later he picked up the balance. Mr Young said that didn't occur and that Mr Young had furnished him with all of the salmon all at once on the 8th of April or thereabouts. But in fact some contact later is actually broadly consistent with the telephone records if they in fact prove that telephone communication was occurring. Then I refer generally to the apparent contact that occurs in May.

In short all I have in relation to the state of mind is in effect the evidence of a co-offender about which I have already warned myself. There's no other direct or objective evidence that would allow the conclusion that I can be persuaded beyond reasonable doubt as to the requisite guilty knowledge, the state of mind being possessed by this defendant. To put it another way I'm not satisfied beyond reasonable doubt that that aspect of the case is made out on the material that is before me.

I further observe that in the record of interview that was, I had the advantage of seeing the explanation offered by Mr Caccavo was not implausible. It was bolstered, I thought, by the fact that he had a dealing in the past at least once previously as the same cool store in relation to some cheese for KFC that he came by in similar circumstances. I'm bolstered also in this conclusion by that fact that he sold it to his uncle and it was receipted and paid for by cheque, activity at least part, activities that I think are unlikely if the defendant was possession of the absolute requisite guilty knowledge required. The fact also that it was partially thawed was confirmed by Mr Ralph Caccavo who was called as a Prosecution witness whom I saw and heard and whose evidence, broadly speaking I accept, again the only person that said it was not thawed was Mr Young but I've commented on his evidence already.

For all of these reasons I'm not satisfied beyond reasonable doubt that the necessary mental element is established in this case. Now I suspect the defendant was reckless at least. I suspect that he ought to have turned his mind to the provenance of the goods and he may well, if he'd thought about it deeply, had reached a view that it was probably stolen. But recklessness and a suspicion that it may perhaps be stolen is not sufficient under the law to prove a case beyond reasonable doubt under s258 of the Criminal Code, 1924. For all of those reasons the complaint is not proved."

6 Counsel for the applicant accepted that, for this review to succeed, clear error on the part of the learned magistrate would need to be shown. It would not be for this Court to merely substitute its own view. Both counsel referred to remarks by Porter J in Kent v Gunns Limited [2009] TASSC 30 at par[7] where he said:

"On this motion I am concerned with the question of whether the magistrate's decision was reasonably open on the evidence; that is, whether on the evidence the only conclusion reasonably open, judged by the criminal standard of proof, was that the respondent was in breach of the Act as alleged. To use the words of Green CJ in Leonard v Newell [1983] TASRp 11; [1983] Tas R 78 at 81, I should 'allow the motion only if I am satisfied that on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent'."

7 The issue in the hearing before the learned magistrate was whether he could be satisfied beyond reasonable doubt that the respondent knew the salmon was stolen. His Honour directed himself by reference to an unreported decision in R v Dick 99/1982, Grundy v R [1994] TASSC 111, and R v Quillerat, another unreported decision 84/1962. While counsel for the applicant accepted that his Honour appeared to have correctly directed himself as to the law to be applied to the issue he needed to determine, counsel referred me to an actual portion of the ruling made by Burbury CJ in the course of the trial in R v Quillerat. A note of the case appears in [1962] Tas SR 370 (NC 16) although the remarks relied upon do not appear there. They appear in an unreported version of the ruling where his Honour said:

"Now our Code requires proof that the accused knew that the goods were stolen. It is not sufficient that the accused ought to have known - he must have known. But for the purposes of this crime of receiving I think the true view is that belief that the goods are stolen is sufficient to constitute knowledge - that is to say it need not be knowledge to the point of certainty. It is sufficient if there is a real belief held by the accused that the goods were stolen.

I think what Bramwell, B. said in the case of R. v. White [1860] EngR 222; (1 F.& F. 665; 175 E.R. 898) is good law for the purposes of our Code. In directing the jury that learned judge said -

'The knowledge charged in this indictment need not be such knowledge as would be acquired if the prisoner had actually seen the lead stolen; it is sufficient if you think the circumstances were such, accompanying the transaction, as to make the prisoner believe that it had been stolen.'

Some support for this view is also found in the case of the Court of Appeal in New Zealand in the case of The King v. Nosworthy 26 N.Z.L.R. 536. That was a case where a man was indicted on a charge of supplying a noxious thing to another person knowing it was intended to procure a miscarriage in a woman and the Court there held that the word 'knowing' in the relevant section should be construed as equivalent to 'believing' - that is to say it need not be knowledge to the point of certainty.

It is clear that carelessness or even recklessness in entering into the transaction is not enough to create this crime, there must be a real belief induced in the accused by the circumstances that the goods were stolen. If the circumstances were such as to suggest to a reasonable man a strong probability that the goods were stolen and the accused nevertheless wilfully abstained from making enquiries I think a jury might properly infer that the accused's real belief was that they were stolen.

I think that the so-called 'Doctrine of Wilful Blindness' is nothing more than an evidentiary principle - it is not a principle of law. Abstention from enquiry may be taken into account by a jury as a circumstance from which they may infer (together with other circumstances) that the real state of mind of the accused was that he believed the goods were stolen. It is important not to substitute some other formula or qualification for the clear words of the Code. If you accept the position that what is meant is belief that the goods were stolen, then in a case where the circumstances were such as to inescapably lead an ordinary person to a state of mind that there was a very strong suspicion that the goods were stolen or a strong probability that the goods were stolen and the accused does nothing about making enquiries the jury may, but of course are not bound to, infer that his real belief was that the goods were stolen."

8 Taking into account the above, the question for this Court is, is it able to be satisfied that, on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt as to the mental element of this crime, and, as a consequence, the guilt of the respondent?

9 The evidence at the hearing before the learned magistrate consisted of oral evidence from the respondent's uncle, Mr Ralph Caccavo, Mr David Forest, the national business manager for Tassal, Mr Glenn Burke who was, as at April 2011, the manager of refrigerated warehousing for Tasports in Hobart, Constable Callum Herbert and Mr Jeremy Young. A number of documents were also tendered. These were two affidavits from a representative from Telstra, attached to which were telephone records relating to two mobile phones, a document described as an aide memoire which was said to be a summary of those records, a statement from the respondent dated 30 September 2011 which he provided to police, an Island Markets invoice, a delivery notice and some photographs of the salmon. There was also a video-recorded interview between the respondent and police.

10 Tasports operated a service at a site on the dock in Hobart offering refrigerated warehousing facilities to various businesses. One of those was Tassal. Tassal was the primary client at this facility, utilizing about 90% of its capacity. The respondent operated a wholesale catering business under the name, Caccavo Catering Supplies. He did not have his own freezer or coolstore facilities, and so rented space from Tasports. He had done so for seven or eight years. He was at the Tasports site generally every day.

11 On or about 8 April 2011, on an occasion when the respondent was at the Tasports site, a man by the name of Jeremy Young offered to sell him a pallet of salmon. The respondent agreed to buy the salmon for $800. He paid for the salmon in cash. There was no invoice for the transaction and no receipt for the cash paid. Mr Young was then employed by Tasports as a storeman. His duties were to load and unload goods at the facility. It was not part of his job to sell any products or to handle any cash or provide invoices or receipts to customers. He had been working in his role as a storeman for about seven years. He knew the respondent as a customer of Tasports and had seen him three or four times a week over that period when the respondent came to the facility. He said he knew the respondent by name. At the time of the alleged offence, Mr Young had the respondent's telephone number in his mobile telephone, and the respondent had Mr Young's number in his.

12 The Tasports facility was not a retail outlet. It received and stored goods. When goods were to be collected by a customer, or by a person to whom the customer had sold goods, Mr Young or another storeman would be provided by the office with details of what was to be collected. They would then deal with the customer who came to collect those goods, by getting the necessary goods out of storage and making them available to the customer. While working, Mr Young wore a uniform, which could at times be a freezer jumpsuit. His uniform had a Tasports logo on it. He had never worn any work clothing with a Tassal logo on it, or indeed the logo of any other company.

13 There was no issue on the hearing of this matter that the pallet of salmon Mr Young offered to sell to the respondent was the property of Tassal, and that Mr Young had no authority to sell it to anyone. The respondent's business did not stock Tassal salmon products, usually dealing with another producer. Mr Young told the court that the respondent paid him $200 on the day they agreed the sale, and that he paid the balance when he picked up the salmon the next day. The meeting between the two men on the day of the pick-up, he said, occurred out the back of Tasports. Mr Young said he had to meet the respondent at a particular time because the transaction needed to be done when other employees were on their break. Mr Young took the pallet out on a forklift, having first wrapped it in cardboard and cling wrap. Mr Young knew there were security cameras covering the area where he met the respondent and that they were wiped after 14 days.

14 The respondent told police in his September 2011 statement:

"About six months ago on one of my regular pickups from my cold storage I was approached by a person I believed to be from Tassal. I cannot remember much about his description except he was about average height, Australian background in appearance, sandy coloured hair and was wearing a jumper with a logo on it which I believe was a Tassal logo but it may have been a Tas Ports or Edwards Transport logo. I don't recall him having a beard or moustache or wearing glasses. I recall his name as being Jedd or Jezz."

When interviewed by police about two months later, the respondent said much the same. There was no dispute that the man from whom the respondent bought the salmon was Jeremy Young.

15 The respondent also said in his statement that the man who approached him about the salmon told him the salmon was partially thawed and that it was "bonus stock". The respondent said he examined the pallet, and found that salmon on the top and sides had started to thaw out. Mr Young, in his evidence, contradicted this, saying the salmon was not partially thawed. Mr Ralph Caccavo, to whom the respondent sold 16 cartons of the salmon, said that when he got some of the salmon, it seems on 9 April, some was partly thawed. With respect, that does not assist with its state when the agreement to purchase was made two days before. The respondent also said the man from whom he bought the salmon asked him what he was prepared to pay for the salmon, and he offered $800 because that was what he had in his wallet. He assumed the man wanted cash "because I have often been offered stock of a similar nature where the money goes to the organization's social fund".

16 The respondent also told police the transaction occurred in full view of others working in the area and security cameras. He said he initially took only 15 or 16 of the boxes on the pallet, and asked the person who was selling the salmon to store the remainder. The respondent said he ran into him again about two to three weeks later, and reminded him there was still the rest of the salmon to collect. On another trip shortly after to the cool store, "one of the people working there" brought the remainder of the pallet to him. Mr Young disputed this saying that all the salmon was taken by the respondent in one batch the day after the sale was agreed. This evidence needs to be considered in the light that the salmon when offered for sale was stolen. It is unlikely that Mr Young would have agreed to look after a partly open pallet of the stolen goods at the coolstore for an indefinite period when, according to the respondent, it was already partially thawed. The evidence from Mr Forest was that once thawed, the salmon should not be refrozen, and had a limited shelf-life.

17 The respondent also told police that when he on-sold the 15 or 16 boxes he initially took, to his uncle, Ralph Caccavo, he told him the salmon was partially thawed bonus stock and gave him an invoice for that sale. The purchase of the salmon, he said, was recorded in his business records as a cash purchase, and the sale to his uncle was recorded as well. The respondent also told police that it was a regular occurrence for him to receive special offers "from a company responsible for manufacturing products, sales representatives, transport companies and storage companies". There was no indication he had ever had such an offer from Tassal despite the fact he appears to have utilized the same coolstore facilities for some years.

18 The respondent was interviewed by police approximately two months after he delivered his written statement to them. In that interview, he confirmed that his mobile phone number was 0419 788479. He also told police:

• That the pallet of salmon he bought probably contained about 36 boxes, each containing about 10 sides of salmon.
• He did not know the man who approached him about the salmon but had seen him on a few occasions. He knew him only as Jezzer.
• His usual dealings with Tasports involved people in its office.
• He did not think the offer to sell the salmon was suspicious because he was offered things like that on a regular basis.
• He had bought Huon salmon of an equivalent grade for $9 or $10 per kilo.
• He did not accept that the salmon he bought was caterer's grade which Tassal sold for about $22 per kilo.
• The man he called "Jezzer" was the only person he dealt with at Tasports about the purchase of the salmon.
• He had once before bought some cheese from the cool store because it was going to be dumped as out of date.
• He did not pay cash in his dealings with his usual supplier of smoked salmon.
• He acknowledged he thought the salmon was cheap.
• He had seen Jezzer on a few occasions since April 2011 but not spoken to him.
• He agreed Jeremy Young "could well have" sent him a text at 7.27am on 8 April 2011.
• When it was put to him that his phone records showed he spoke to Jeremy Young for nearly two minutes at 7.31am on 9 April 2011, he said:

"Well it's not unusual for people from Tasports to ring me about my stock that I send a fax through to pick up if they're out of something or they want to change something it's not unusual, they probably ring me three or four times a week"

• As to texts said to have been sent by Jeremy Young to the respondent in October 2011, he said he received them but he deleted them and took no notice of them. They might have said "Ring me".

19 When other texts and calls as disclosed in the telephone records were put to the respondent in his interview, he did not deny they were to and from him, but said he could not recall them. In that context, he repeated that he did not know "Jezzer".

20 When Mr Young gave evidence, he had already been dealt with by the courts in relation to the theft of the pallet of salmon he sold to the respondent. He told the court that when he was at work as a storeman for Tasports he wore a uniform, and generally that consisted of a freezer jumpsuit. It had a Tasports logo on it. He had never worn clothing at work with any other company logo on it. He admitted that on 7 April 2011, he had offered to sell the respondent a pallet of salmon and they had agreed a price of $800. He said the respondent gave him $200 cash that day and it was agreed the fish would be collected the next day, and the balance of the price would be paid.

21 Mr Young said his normal work hours were 6.30am to 3.30pm, but that he started early on the morning of 8 April. He was asked if he then made contact with the respondent. He said he would have done, and it would have been by text. He said it would have been about times to collect the fish but he could not actually remember sending a text. The respondent came on 8 April to collect the fish and did so out the back of Tasports. Mr Young had wrapped the pallet in cardboard and cling wrapped it. He knew there were security cameras in the area, and knew they were wiped after 14 days.

22 Mr Young was asked about events of 18 October 2011. He said police came to Tasports that day. He had been told the night before they were coming about a pallet of fish. He said that he tried to ring the respondent to pre-warn him, but the respondent did not get back to him. He left a message saying it was important he contact him. He said he was fairly desperate to contact the respondent. He could not remember details, but he left messages.

23 Mr Young was also asked about other contact between him and the respondent. He agreed that they spoke on the phone occasionally about the respondent's stock and that they had done so before 7 April. In cross-examination, he repeated that contact was occasionally.

24 When Mr Young was cross-examined by the respondent's counsel, it was put to him, "is it fair to say that during that record of interview you were pretty upset with Mr Caccavo?" He responded, "No, not really". It was also put to him that the fish he sold to the respondent was partly thawed bonus stock. He said there was no such thing as bonus thawed-out fish at Tasports. He also denied that the respondent inspected the pallet of fish before agreeing to buy it.

25 It was also put to Mr Young that he did not like the respondent as a result of this incident. He agreed he did not, "because he had a month's warning to let me know that the police were onto us." It was then put to him he had an axe to grind in giving evidence, and he responded, "Just the same as what he did to me, sent me down, when I was trying to warn him that day and he had a month to warn me which he never did." Mr Young was also asked if he had had any other dealings, beyond giving a recent statement to Constable Herbert, with police since he was convicted of stealing the salmon and he said no.

26 Mr Ralph Caccavo, the respondent's uncle, operated a business known as Island Markets. On 9 April 2011, he bought 16 cartons of what he initially said was partly thawed smoked salmon from the respondent. He received an invoice from the respondent which referred to 16 cartons of "Assorted products". On 19 August 2011, David Forest from Tassal then came and spoke to him, asking questions about salmon he was selling. Police then came to see him on 28 September. They inspected his freezers and found packets of salmon. Police then took about 16 packets of salmon and told him they suspected the salmon was stolen. Mr Caccavo thought the salmon he bought was a good price.

27 Under cross-examination, Mr Caccavo said he had had 15 to 18 years' involvement in buying and selling salmon. There were several grades, and a wide variation in price. He was asked if, in his years in business, he had done other deals similar to the one he did with his nephew whereby partially thawed salmon was bought at a cheaper price, and he responded, "It happens almost daily, you know". He then said however that he had never bought partly thawed smoked salmon. He agreed that the cartons he bought from his nephew contained some partly thawed salmon.

28 Mr David Forrest, the Tassal representative, told the court he visited Island Markets because he received information that they were selling Tassal products at a very cheap price. He was aware they did not usually sell Tassal products. He found some Tassal products at Island Markets selling for $15.99 a kilo, which, he said, was about $10 per kilo less than what it should be. The wholesale price at the time would have been about $20 per kilo. The salmon he found was Tassal's caterers' grade, not the most expensive of that company's range. He was able to identify the salmon he found as Tassal product from the label. The particular salmon had been packaged at Huonville in January 2011 and then stored at the coolstore at Tasports facility. He was adamant that Tassal did not sell defrosted salmon to any wholesaler. Mr Forest was asked if he knew the term "bonus stock". He said he believed that, if buyers bought a certain amount of stock, they might be offered a discount but not extra stock.

29 Mr Glenn Burke, the Tasports representative, told the court that Tassal was the primary client of the coolstore facility at the Hobart dock, taking up about 90% of its capacity. He acknowledged that it was possible that transactions of a similar type to that alleged to have occurred in this case took place, but clearly they should not have been occurring.

30 I will deal with this evidence separately because of the emphasis placed upon it by the learned magistrate. The documents tendered before the learned magistrate were two affidavits by a representative of Telstra, attached to which were call records for two identified mobile numbers for two separate periods. Those periods were 1 March 2011 to 31 May 2011 and 1 August 2011 to 3 November 2011. There was also what was described as an aide memoire said to relate to the call traffic between the two mobiles. The court was not told who prepared the aide, and no explanation was provided as to what it actually was supposed to portray.

31 The records related to two mobile phone numbers, being 0419 788479 and 0409 081519. 0419 788479 was registered to a Maria Dowker of 4 Augusta Road, Lenah Valley. The billing entity was Caccavo Catering Supplies of the same address. The respondent acknowledged, when interviewed by police, that that was his mobile number. 0409 081519 was registered to a Jeremy Kelly of 24 Duntroon Drive, Clarendonvale. The learned magistrate was told in opening that Jeremy Kelly and Jeremy Young were one and the same, without objection by counsel for the respondent. Mr Young was examined and cross-examined by reference to the telephone records, and did not at any stage suggest the records relating to 0409 081519 did not record texts and phone calls he had sent and made.

32 An examination of the aide memoire shows that, apart from an obvious difficulty in understanding what precisely it was supposed to convey, it dealt with a period not covered by the records themselves, namely July 2011. Without any real reason for doing so, I examined the call records and not the aide memoire first. It is apparent from the reasons of the learned magistrate that he seems to have taken his information for his reasons from the aide memoire. It is also apparent that some of the detail in the learned magistrate's reasons about phone and text contact between the two mobiles is not supported by the call records themselves.

33 The records I examined disclosed the following contact between the two mobiles:

8 April 2011 - at 7.31am a phone call lasting 113 seconds was made

8 April 2011 - at 2.24pm a phone call lasting 17 seconds was made

19 May 2011 - at 9.33pm a phone call lasting 76 seconds was made

4 May 2011 - at 11.19am a phone call lasting 93 seconds was made

19 May 2011 - text sent at 9.31pm which originated in the Bellerive area

18 October 2011 - text sent 2.49pm which originated in the Bellerive area

18 October 2011 - text sent 3.21pm which originated in the Bellerive area

19 October 2011 - text sent 7.26am which originated in Bellerive area

19 October 2011 - text sent at 6.34pm which originated in the Richmond area

19 October 2011 - text sent at 6.54.08pm which originated in the Sorell area

19 October 2011 - text sent at 6.54.13pm which originated in the Sorell area

19 October 2011 - text sent at 6.54.19pm which originated in the Sorell area

34 Four conclusions are inescapable from the above data. Firstly, the records do not support any conclusion that the respondent and Mr Young had regular telephone contact about business matters. Secondly, on 8 April 2011, there was a text sent from Mr Young's phone to the respondent's phone at 7.27am. Four minutes later, a telephone call was made from the respondent's phone to Mr Young's phone, and a second call was made later the same day. Thirdly, there was a call from Mr Young's phone to the respondent's phone on 19 May 2011, at a time well outside working hours (9.31pm) and from an area clearly not the Tasports site. Fourthly, there were seven texts sent from Mr Young's phone to the respondent's phone on 18 and 19 October 2011. The time and frequency clearly indicate that whoever was using Mr Young's phone was very keen to contact the respondent.

35 The learned magistrate said in his reasons about the phone records:

"However at their absolute highest those records may only prove that texts or calls were made to and/or from a telephone registered to Mr Young and/or to or from a telephone made - registered to the defendant.

Leaving aside Mr Young's evidence there is no objective evidence whatsoever as to the content of either the texts or any of the calls or even if the defendant used the telephone on the dates in question or received or made the calls or received or made the text messages himself.

Mr Young said turning to the October ones that on Tuesday the 18th of October he tried to ring the defendant to, his words, 'prewarn' him about an impending visit from the Marine Police and that he left a message. The phone record in evidence does not support this, no objective evidence supports this."

36 With respect, there was objective evidence about the phone and text traffic between the two mobiles. The respondent acknowledged that the number 0419 788479 was his mobile number. At no stage, did he ever suggest that the phone was used by others. He acknowledged that he had texts from Mr Young both in April and in October 2011. He did not dispute that a telephone call was made by him to Mr Young on 8 April. He did proffer an explanation as to what the call might have related to. It must be accepted that, save for the evidence of Mr Young and the respondent as to the content of texts and calls, there was no other evidence of that content.

37 As to the comments by the learned magistrate in the third paragraph extracted above, his Honour was correct in saying that the telephone records did not show any telephone call from Mr Young's mobile to that of the respondent on 18 October 2011. However, the records do show seven texts that day and the next sent from Mr Young's phone to that of the respondent. Mr Young said he sent texts and that he was fairly desperately trying to contact the respondent. The records are consistent with Mr Young's evidence. Further, the respondent told police in his interview that he received texts from Mr Young on 18 October but he just deleted them. He thought they might have said "Ring me". There was clearly therefore objective evidence supporting what Mr Young told the court about his attempts to contact the respondent. The learned magistrate appears to have either ignored or discounted this evidence completely for reasons which were not explained.

38 The learned magistrate appeared to take a somewhat inconsistent approach to the telephone records. He effectively discounted the telephone records as being able to prove anything, and yet relied on them to support there being contact between the respondent and Mr Young in May 2011 which he said was "broadly consistent" with what the respondent told police, namely that he picked up the salmon in two lots, one on the 8 April and the rest a few weeks later. The difficulty with that approach is that the respondent did not say that he contacted Mr Young by text or phone call to arrange to collect the balance of the fish. He said he ran into Mr Young when he happened to be at the Tasports site and spoke to him about it.

39 While there is no ground of review relating to the manner in which the learned magistrate approached the evidence of Mr Young generally, that approach, in my view, coloured his examination of the evidence as a whole. His Honour was asked by the respondent's counsel to give himself a warning by reference to the Evidence Act 2001, s165(1)(d). Section 165(1)(d) and (2) relevantly provide:

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(d) evidence given in a criminal proceeding by a witness who may reasonably be supposed to be criminally concerned in the events giving rise to the proceeding;

(2) If there is a jury and a party so requests, the judge is to -

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it."

As is apparent from his exchange with counsel during closing submissions, his Honour was aware that any warning he might give himself should not be as strong as it otherwise might have been because Mr Young had already been convicted for stealing the salmon he on-sold to the respondent. It must be inferred from that that he accepted that Mr Young may not have had any particular reasons to try to implicate someone other than himself. However, another comment by his Honour in the same exchange reveals that his Honour appears to have misunderstood the nature of the warning he was being asked to give himself. At 75 of the transcript starting at line 19, his Honour said:

"Basically the Evidence Act provides that I'm to warn myself in the appropriate circumstances that the evidence of an accomplice, as they used to be called, is likely to be unreliable and there may be reasons to treat it with some caution and I accept that proposition."

Section 165(1) does not provide that evidence of an "accomplice" is "likely to be unreliable". It provides that evidence of a kind referred to in par(d) "may" be unreliable. While s165(2) deals with circumstances where there is a jury, it must follow that any judicial officer giving him or herself a warning by reference to s165 should identify the reasons why the relevant evidence might be unreliable. In his reasons for decision, the learned magistrate gave no indication he understood the correct wording of s165(1), nor did he give any reason as to why he might have considered Mr Young's evidence to be unreliable. It is clear from his reasons however that the learned magistrate did not accept Mr Young's evidence generally, and yet no explanation was given for that approach, save what appears to be an erroneous warning.

40 In the case of Mr Young, he was clearly a witness "who may reasonably be supposed to be criminally concerned in the events giving rise to the proceeding". Counsel for the respondent tried to obtain an admission from Mr Young that he was upset with the respondent. He did not get it. He did however get an acknowledgment that Mr Young had an axe to grind. Quite obviously Mr Young was not happy that the respondent had not warned him of police involvement when he had tried to help the respondent. I am unsure as to why this could be suggested as a reason why the evidence of Mr Young was unreliable. If what Mr Young told the court was true, his response to the respondent's counsel was perfectly understandable. Counsel for the respondent did not suggest why this evidence about having an axe to grind might make the evidence of Mr Young generally unreliable. What also needed to be kept in mind was that Mr Young had already been dealt with by the courts for his part in the events, and there was no suggestion at all that he had been dealt with leniently on the basis he would give evidence against the respondent.

41 The learned magistrate's reasons demonstrate he appropriately focused on the issue of the mental element to be established by the prosecution. However, with respect, he limited his focus largely to the evidence of one witness, Mr Young, and to telephone records and an aide memoire tendered to him. As to those records, the learned magistrate's reasons contain factual errors brought about, it appears, by reliance on the aide memoire. His Honour made little reference to any other evidence.

42 I accept that I should only allow this review to succeed if I am satisfied that, on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt as to the requisite state of the respondent's knowledge about the salmon, and, as a consequence, of his guilt.

43 I am so satisfied. In reaching that view, I am mindful of the remarks of Burbury CJ in Quillerat where he said:

"If you accept the position that what is meant is belief that the goods were stolen, then in a case where the circumstances were such as to inescapably lead an ordinary person to a state of mind that there was a very strong suspicion that the goods were stolen or a strong probability that the goods were stolen and the accused does nothing about making enquiries the jury may, but of course are not bound to, infer that his real belief was that the goods were stolen."

I accept that mere recklessness would not be enough.

44 In reaching my view, I have also taken into account the erroneous warning given by the learned magistrate to himself by reference to the Evidence Act, s165, his Honour's failure to identify any reasons why Mr Young's evidence might be unreliable save that his evidence was of a kind to which s165(1)(d) applied, and his Honour's views about the telephone records about which I have already made comment. As to Mr Young's evidence, any warning should have identified Mr Young's role in events, that he had already been convicted of stealing the salmon, and his evidence about having an axe to grind. As to that last matter, however, consideration would need to be given to whether his evidence about that would suggest unreliability. There was nothing put to the learned magistrate to support a conclusion that Mr Young's evidence must be unreliable.

45 The evidence before the learned magistrate as to the circumstances surrounding the alleged offence was at the very least:

- The respondent purchased a quantity of Tassal salmon, a product he did not usually stock, at a price clearly well below market price, and from a person he must have known as an employee of Tasports and not Tassal.

- The salmon was purchased for cash and no receipt was provided.

- There was no reason for the respondent to be offered "bonus" stock by a company he did not deal with.

- The respondent was experienced in the purchase of salmon from another supplier, and an inference must be open that he had some knowledge of prices. Even on his estimate of $9 or $10 per kilo, the pallet was worth far more than he paid.

- The respondent's evidence about his not knowing Mr Young was inconsistent with evidence of his dealings with him over several years, and that he had his mobile telephone number in his phone.

- The evidence of Mr Young needed to be considered with caution. However, particularly where there was other evidence which supported the evidence he gave, there was no reason to consider it generally unreliable.

- The telephone records were probative evidence of communications between Mr Young and the respondent.

- Those records showed a text from Mr Young to the respondent at 7.27am on 8 April 2011 and the respondent responding to the text almost immediately by phone. They also show he rang Mr Young again later in the day. These communications were consistent with arrangements being made for the salmon to be collected that day, and not consistent with just general communication about stock collection.

46 I have not canvassed all of the evidence in these closing paragraphs. However, having considered all of the evidence before the learned magistrate, and taking into account the matters I have already commented upon about the learned magistrate's approach to certain evidence, I am satisfied that on no reasonable view of that evidence could the learned magistrate have failed to have been satisfied as to the mental element and guilt.

47 The motion in this matter should succeed. Counsel for the applicant submitted that, in the event the motion succeeded, this Court should either find the respondent guilty of the charge on complaint number 3009/12 and return the matter to the lower court for sentencing, or refer the matter back to the lower court for re-hearing by another magistrate. I propose to do the former because the events which gave rise to the charge against the respondent arose almost three years ago and the cost and time involved in yet another hearing are not warranted, given the findings I have made.

1. That the notice to review filed 3 June 2013 is upheld.

1. That there is a finding that the respondent is guilty of one count of receiving stolen property, contrary to the Criminal Code, s258.
2. That the matter be relisted before the learned magistrate on a date to be fixed for the purpose of the respondent being sentenced in respect of the count of receiving.