Gilson v The Queen

Gilson v The Queen - [1991] HCA 24 - HCA 1988 case summary — Zoe

[7]

There is no doubt about the law up to a point. "When it is shewn that property has been stolen, and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver, according to the circumstances" (per Blackburn J. in Reg. v. Langmead, [2] ). If the indictment charges both offences, it is sufficient if the jury are convinced that the prisoner is guilty of one or the other. If they are in doubt, as to which, it is their duty to act upon the probabilities of the case, and to return their verdict upon the charge, which - they think - is the more likely to be true. I have no doubt that the same principle applies whenever an accused person is lawfully presented for trial upon two or more charges, whether they are specified in the indictment or implied by law. See Reg. v. Rudge [3] . But in these proceedings the only charge before the Court was that of larceny, and it is taking a long step to say that the prosecution can discharge the onus of proof by shewing that the accused has been guilty, either of that offence or another, and that the jury are then at liberty - within those limits - to act upon the balance of probability. The Crown Solicitor has been unable to find any authority to that effect. Such authority, as I am aware of, points in the other direction (e.g. per Mellor J. in Reg. v. Langmead [4] and Reg. v. Densley [5] and I am unable to see where we ought to stop, if it is once conceded that the prosecution need not prove the charge, as it is laid, or beyond the balance of probability. 1. [1934] S.A.S.R. 28. 2. (1864) Le. & Ca. 427 [ 169 E.R. 1459]. 3. [1934] S.A.S.R., at pp. 30-31. 4. (1864) Le. & Ca., at p. 441 [ 169 E.R., at p. 1464]. 5. (1874) 31 L.T. 590. 6. (1864) Le. & Ca., at p. 442 [ 169 E.R., at p. 1465]. 7. (1834) 6 C. & P. 399, at p. 399 [172 E.R. 1294].

[49]

However, for the reasons I have given, the choice between guilty inferences can be made on the balance of probabilities only when the jury are satisfied beyond reasonable doubt that the accused is guilty of either one or other of two offences carrying the same maximum penalty, the one containing the elements of larceny, the other the elements of receiving. That choice may have to be made when the two offences are charged alternatively in an indictment or where they are alternative offences open to the jury on an indictment charging other offences. Where the two offences carry different penalties, the jury should be directed that they cannot convict of the more serious offence unless they are satisfied beyond reasonable doubt in the circumstances of the case that the correct inference to draw is guilt of the more serious offence. If they are not so satisfied, the remaining inference of guilt open to them is guilt of the less serious offence. In such a situation, there is a logical asymmetry in the approach to be taken by the jury to the two offences, but it does no violence to the principle that the verdict determines the scope of the sentencing power. In such cases, the jury should first be directed, in accordance with R. v. Schama and Abramovitch (usefully explained in R. v. Garth [36] , to consider whether they are satisfied beyond reasonable doubt that the accused, having been found in recent possession of stolen goods, is guilty of one or other of the two offences. Next, they should determine whether they are satisfied beyond reasonable doubt that the accused was the thief or the receiver, as the case may be (depending on the element in the more serious offence). If they are so satisfied, they will convict of the more serious offence. If they are not so satisfied, they must acquit of the more serious offence and, having rejected the more serious inference, they are entitled as a matter of law to conclude that the accused was the receiver or the thief (depending on the element in the less serious offence). If they are not satisfied beyond reasonable doubt that the accused was either the receiver or the thief, they must acquit of both offences.

[64]

I think the starting point must be that, although possession of recently stolen property can be evidence of stealing or receiving, the presumption is that the possessor of that property has stolen it. The jury, therefore, should begin with the issue whether the accused is guilty of stealing. Consequently, they should be directed that they must begin by determining whether the accused is guilty on the stealing count. This raises two questions: Was the property stolen? And was the accused the person who stole the property? If the jury are persuaded beyond reasonable doubt that the property was stolen and that the accused was the thief, the charge of receiving becomes irrelevant. If, on the other hand, the jury are unable to conclude beyond reasonable doubt that the accused stole the property, they must acquit him or her of the charge of stealing. But this conclusion has consequences for the receiving charge: in considering that charge, the jury have to be directed that they must determine the receiving charge on the basis that the accused is innocent of the charge of stealing and that some other person has stolen the property. As I have already indicated, it is not to be supposed that the legislature intended that, after acquitting the accused of the stealing charge, the jury had then to be satisfied beyond reasonable doubt that the accused was not the person who stole the property before they could find him or her guilty of the alternative charge of receiving. As between the Crown and the accused, the acquittal of the accused on the stealing charge establishes that, for the purpose of the receiving charge, the accused was not the person who stole the property. Any doubt about that issue is resolved when the jury acquit him or her on the stealing count. Thus, after the acquittal on the stealing charge, the issue on the receiving charge is whether the accused received the stolen property knowing at the time that it was stolen. The Crown must prove that issue beyond reasonable doubt.

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