COX J The appellant was charged with one count of receiving stolen property in that he:

"... at Rocherlea in Tasmania on or about the 1st day

of November, 1992 without lawful excuse had in his

possession two Stihl chainsaws the property of Wayne

Maurice Freeman which had been stolen knowing the same

to be stolen property."

2. The Crown called unchallenged evidence from Mr Freeman that two chainsaws had been removed without his permission from his locked workshop in Lilydale Road, Launceston between Saturday, 31 October and mid-morning on Sunday, 1 November 1992 and that he identified the two saws which the police found in the possession of the appellant as his.

3. Detective Sergeant Gregory gave evidence that on the evening of 1 November he had visited No 15 Blackwood Drive, Rocherlea where the appellant was then living with his sister and brother-in-law. He told all three that he had received information only a short time earlier that there were stolen chainsaws on the premises in the possession of the appellant. All three denied any knowledge of any chainsaws on the premises. He then said he intended to search the premises and was invited to do so, being told that he would not find any. He and his colleague commenced a search of the backyard, sheds and two vehicles in the yard in the presence of the appellant and his sister and brother-in-law and, when about to return to the house, observed a small locked trapdoor leading under the house. He asked for the key and the appellant then said he wanted to see the officers in their car. There the appellant made an admission that he had two chainsaws under the house. Asked why he had not told them earlier, he said he did not wish to get his sister and brother-in-law into trouble and wanted to keep them out of it. The chainsaws were retrieved from under the house and the appellant interviewed on video at the police station. He admitted to having bought the saws that day fairly cheaply from a man he would not name who had contacted him by telephone but about whom he said his brother-in-law, David, had warned him, saying "it was dangerous getting stuff from him". The appellant said that at the time of the purchase the thought that the goods could be stolen had gone through his mind. He also said he had denied knowledge of the saws to the police "because you frightened the hell out of us and I knew that something's happening with the saws - I knew there must have been something wrong" and that he had spoken to the police after they commenced to search because he felt guilty and did not want to drag the family into it. Neither Detective Sergeant Gregory's evidence nor that of his colleague, Detective Alderton, was the subject of challenge and the Crown closed its case.

4. The appellant made an unsworn statement in which he disclosed his dealings with the person selling him the chainsaws (there identified only as "Tony") and saying that he decided to buy them for $300 because there didn't seem to be anything suspicious about them. He concluded the statement with the words:

"What I said to the police is correct. The thought

went through my mind that they might be stolen because

of what David had said. After I had checked them out I

thought that they were OK and that they belonged to

Tony. I did not think that they were stolen until the

Police came."

5. After closing addresses by counsel, the learned trial judge summed up and the jury retired to consider their verdict, but returned some time later and this exchange occurred:

"FOREWOMAN: ... we're not quite sure as a Jury what

we're supposed to actually find out because up to the

time the police came to the residence, he, the accused

didn't know whether the property was stolen or not.

HIS HONOUR: That's what he says.

FOREWOMAN: And then -

HIS HONOUR: Now if you are left with a reasonable doubt

about that well you should find him not guilty.

FOREWOMAN: Right.

HIS HONOUR: We're not concerned about what happens

after the police arrive and they told him it was

stolen, we're not concerned - oh I see what you mean,

there could be that brief moment, couldn't there?

FOREWOMAN: The denial period of about ten minutes and

then he admitted."

6. His Honour then discussed with counsel whether, if the jury were not satisfied the appellant knew or believed that the goods were stolen prior to the arrival of the police but upon their arrival formed that belief, it would be appropriate to accept a verdict of guilty, and if so, whether to assist him in passing an appropriate sentence they should return a special verdict. Against the objection of the appellant's counsel he decided to leave the option of doing so on that view of the facts. After further discussions, two questions were articulated:

Question 1:

"On the 1st November 1992, immediately prior to the

arrival of the police at 15 Blackwood Drive, was the

accused without lawful excuse in possession of two

Stihl chain saws which had been stolen knowing the same

to be stolen property."

Question 2:

"On 1st November 1992 after the arrival of the police

at 15 Blackwood Drive ... was the accused without

lawful excuse in possession of two Stihl chain saws

which had been stolen knowing the same to be stolen

property."

7. The jury were told to return a general verdict of guilty or not guilty and given this direction:

"... if the answer to either of those questions is

'yes' and it maybe to both of those questions, it

doesn't matter, but if the answer to either of those

questions is 'yes', then he would be guilty. Now

that's the direction of law that I give you. If on

that day immediately prior to the arrival of the police

he was without lawful excuse in possession of two Stihl

chain saws which had been stolen knowing the same to be

stolen property, he clearly would be guilty, wouldn't

he, before the police arrived. As long as you are

satisfied of that beyond reasonable doubt, I direct you

of that. But I also direct you that if after the

police arrived, after the police arrived at that house,

he was in possession of those chain saws, and that they

had been stolen and he knew that, he knew that they

were stolen property, and if you're satisfied of that

beyond reasonable doubt, then he would be guilty."

8. They were also told that should their verdict be one of guilty, they would be asked whether they would tell his Honour the answers to those questions to assist in the sentencing process. On their return, the jury found the accused guilty and were then asked:

"HIS HONOUR: ... The first question was whether

immediately prior to the arrival of the police on the

1st November last at 15 Blackwood Drive, was the

accused without lawful excuse in possession of two

Stihl chainsaws, which had been stolen knowing the same

to be stolen property. Could you tell me the answer to

that?

FOREWOMAN: Not guilty.

HIS HONOUR: So you would find him not guilty on that

basis. But then after the arrival of the police would

you have found him guilty?

FOREWOMAN: Yes.

HIS HONOUR: And that's the basis upon which you've

found him guilty is it? Is that the answer that all 12

of you would give?

FOREWOMAN: Yes."

9. It should be noted that though the forewoman referred to a period of denial of 10 minutes before any admission, there was no evidence as to how long after the appellant had denied any knowledge of the chainsaws and after the police officers began their search the appellant made the admission as to their presence under the house. It could well have been a shorter period than 10 minutes.

10. It is clear from the transcript that the possibility that the appellant first formed a belief that the goods were stolen upon the arrival of the police occurred only to the jury, and then only after they had retired to consider their verdict. It had not been adverted to by either counsel nor had it been the subject of any special direction by the learned trial judge in his summing up. Furthermore, once it was raised it was not the subject of any further address by counsel nor direction from his Honour, save that "if after the police arrived ... at that house, he was in possession of those chain saws, and that they had been stolen and he knew that, he knew that they were stolen property, and if you're satisfied of that beyond reasonable doubt, then he would be guilty". No attention was focused upon the question whether his possession at that time could yet reasonably be said to be not without lawful excuse notwithstanding his newly acquired knowledge. The Crown opened the case to the jury on the basis that he knew the property was stolen at the time he bought it. True, counsel said at one stage: "... the Crown must prove to you, that he had possession of those chainsaws, whether for five minutes, or for five hours, and possession means either physical possession or some exercising of custody or control on an object" but went on to say that the Crown had to prove the appellant "had knowledge, that is a belief, that it was stolen property and nevertheless took possession of that stolen property". There can be no doubt that the Crown case was put on the basis of a receiving at common law and the lie when he was told by the police that they believed he had stolen chainsaws on the premises was put as strong evidence that he already believed them to be stolen. The learned trial judge crystallised the issue for the jury in his summing up in these words:

"Are you satisfied beyond reasonable doubt that he's

not completely frank in what he is telling to the court

in his unsworn statement and in what he said to the

police or are you prepared to go that one step further

and say we don't think he's being truthful, and not

only that we think it, we are satisfied beyond

reasonable doubt that he knew that property was stolen

before the police came to that house and he had

possession of it. Are you prepared to go that one step

further."

11. The sole original ground of appeal was that the conviction was unsafe and unsatisfactory, but on the hearing of the appeal leave was given to add the following:

"2 The verdict of guilty should be set aside as

constituting a miscarriage of justice on the following

bases;

(i) The learned trial judge failed to give any or any

sufficient direction to the jury as to what the Crown

had to prove as to the possession of the chainsaws by

the accused in respect of the period of time from the

arrival of the police at the door of the premises at 15

Blackwood Drive, Rocherlea; and/or

(ii) The learned trial judge authorized the jury to

find the accused guilty upon a version of facts never

put by the Crown or answered by the accused, nor put by

the learned trial judge in his summing up; and/or

(iii) The learned trial judge erred in law in

permitting the jury to consider a version of facts

never relied upon by the Crown during the evidence or

during its address in circumstances where the accused

had no opportunity adduce (sic) evidence to answer the

allegation; and/or

(iv) The learned trial judge erred in law in permitting

the jury to find the accused guilty of a version of

facts and/or basis which basis first arose during the

deliberations of the jury when the accused had neither

the opportunity to adduce evidence (either in the form

of an unsworn statement or otherwise) nor his counsel

to address the jury upon the issue."

12. Where a jury is invited or permitted to find a verdict of guilty on a basis different to that contended for or advanced by the Crown the possibility exists of a miscarriage of justice occurring. In King v R [1986] HCA 59; (1986) 161 CLR 423 two men were charged with murder, the Crown case being that King had instigated the co-accused to murder King's wife. The trial judge gave a re-direction at the behest of the Crown that the jury could convict the husband if they were satisfied he had arranged that someone should kill his wife even if it was not the other man charged. The jury convicted the husband but acquitted the co-accused. The court was unanimous that the conviction should be quashed although there was some dissent from the majority decision to uphold an order for retrial. Murphy J, at 425, stressed the importance of the right of every accused person to know with particularity the case which the prosecution wishes to prove at trial and "to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge" (citing Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489, per Dixon J). Deane J, at 428-429, said:

"Because the Crown had adopted the undesirable approach

of framing its indictment in the broadest terms it had

subjected the applicant to the wide jeopardy of a trial

on that indictment. But once the Crown elected at the

trial to confine its case against the applicant with

the result that the trial was conducted on that basis,

it could not legitimately expect that it could, after

evidence and addresses had been completed, seek,

through the trial judge's summing up, to obtain a

conviction on some other basis if it became

apprehensive that the case which it had presented might

be rejected by the jury."

"The jury brought in a verdict of guilty against King

but acquitted Matthews. King appealed to the New South

Wales Court of Criminal Appeal, which allowed his

appeal upon the basis that the trial had miscarried

when, at the instance of the Crown, the trial judge had

introduced for the first time in his summing up the

possibility that some person other than Matthews had

killed the deceased. The element of surprise involved

in this course was held to have resulted in possible

prejudice to King's case, his counsel having

cross-examined Siemsen and addressed the jury in

reliance upon the presentation of a case by the Crown

that the person who killed the deceased was Matthews.

Had King's counsel known that alternatively Siemsen or

some other person unknown to the Crown was alleged to

be the actual murderer, he may well have cross-examined

or addressed in a different way.

No exception was taken before us to the finding of an

irregularity or the quashing of the conviction.

Indeed, it may be said that the direction given by the

trial judge at the behest of the Crown involved such a

change in the course of the trial at such a late stage

that inevitably the conviction could not be allowed to

stand: see Reg v Laird (1893) 14 NSWR 354; R v

Thompson and Gamble (1925) 42 WN (NSW) 71; McManamy v

Fleming [1889] VicLawRp 67; (1889) 15 VLR 337; Gregory (1981) 77 Cr App R

41, at p 47; Falconer-Atlee (1973) 58 Cr App R 348, at

pp 355-356; Cross and Channon (1971) 55 Cr App R 540,

at pp 545-546."

14. Notwithstanding that the main thrust of the Crown case against the appellant was that he knew when he first received the goods that they were stolen, its case nevertheless remained throughout that at all material times, ie, until at least the admission was made to the police, he had guilty knowledge. An acknowledgment by him that for only a part of that time (ie, for some time between their arrival and his admission to them) he knew the goods were stolen could not be said to constitute a defence to the charge as particularised by the Crown on the basis that it did not fall within the parameters of those particulars. (Cf Parker v R unreported Court of Criminal Appeal 57/1994). The admission in the unsworn statement was capable of sustaining a finding that the appellant had without lawful excuse possession of stolen goods knowing them to be stolen as alleged in the indictment. Nevertheless although there could not therefore be said to be so fundamental a change in the characterisation of the act, matter or thing alleged as the foundation of the charge that the jury should not have been permitted to return a verdict on that basis, as no attention had been given by either party to the precise moment at which the possibility that the goods were not stolen was positively excluded from his mind nor to the question whether, upon being confronted with the unpleasant truth that the goods placed by him under the house were stolen and that their being found by the police might well lead to his arrest and his explanations being disbelieved, his failure to immediately reveal their whereabouts and his decision to deny knowledge of them rendered his brief retention of them thereafter possession without lawful excuse, further submissions from counsel on those matters should in my respectful view have been invited and detailed directions thereon given by the learned trial judge.

15. In R v Quillerat (1962) Tas SR 370 (NC 16) (unreported 84/1962), Burbury CJ said:

"Section 258 is in principle aimed at dishonest

possession of property which in fact is stolen.

Section 258 differs from the corresponding section in

the English Larceny Act because it makes it a crime to

be in possession of stolen property knowing it to be

stolen even if the knowledge of it being stolen is

acquired later. Now if a man who honestly acquires

property which was stolen but he later discovers it is

stolen and remains in possession he commits a crime by

remaining in possession of it knowing it to be stolen

unless he has 'lawful excuse' for remaining in

possession. What, then, constitutes 'lawful excuse'?

It cannot be sufficient to show that he acquired it not

knowing it to be stolen. If that constituted 'lawful

excuse' for remaining in possession Section 258 does

not create alternative crimes. The 'lawful excuse'

must be a 'lawful excuse' for remaining in possession

when he learns the property is stolen. 'Excuse' in

this context is I think some exculpatory reason

affording a lawful justification for remaining in

possession of property known to be stolen. If a man,

having discovered that property in his possession is

stolen property, acts honestly and immediately makes

proper attempts to discover who the true owner is for

the purpose of returning his goods to him or if he

reports it to the police and asks them to make

enquiries, I would have no hesitation in saying that he

has lawful excuse for remaining in possession while the

enquiries are being made. He is acting honestly and I

think the fact that he is acting honestly constitutes

lawful excuse for remaining in possession while he is

trying to discover the true owner. But if a man,

having discovered that property was stolen remains in

possession of it without doing anything about it,

without making any enquiries, without reporting it to

the police, then I think his possession is dishonest in

character and I think he cannot say that he has lawful

excuse for remaining in possession. In that case the

law affords him no justification for retaining the

goods without trying to ascertain the true owner and

returning them to him."

16. No doubt it might be said that the appellant's denial of any knowledge of the chainsaws and his failure to assist the police to return them to their true owner by revealing their whereabouts and the circumstances in which he had acquired them would be strong evidence that he intentionally retained his possession of them in circumstances which afforded him no lawful excuse. However, it was a question of fact upon which he was entitled to have the verdict of his peers after proper direction, and in my view it could not be said that in the circumstances, having regard to the imprecision of the evidence as to the length of time between the arrival of the police and his admission to them, and to the dilemma his realisation of the fact that the goods were in fact stolen placed him in, a reasonable doubt could not have been created in the minds of the jury that he thereafter had them in his possession without lawful excuse. In my view he lost a chance of acquittal which was fairly open to him. I would allow the appeal. In the circumstances I do not consider a retrial warranted. I would quash the conviction and direct that judgment and verdict of acquittal be entered.

UNDERWOOD J The appellant's trial occupied less than one day. He was charged with receiving two chainsaws. The Crown case was that on 1 November 1992, the appellant and his family were staying in Launceston with the appellant's brother-in-law. On that day, the two men went to a hotel and in the course of a conversation there, the appellant said that he wanted to buy two chainsaws. Later that afternoon, the appellant received a telephone call from a man who said that he had two chainsaws for sale. The appellant's brother-in-law warned the appellant to be careful because "they could be no good dealin' or buyin' anything off him" (the appellant's video interview with police). The appellant went to this man's house, inspected two second hand chainsaws complete with serial numbers and bought them for $150 each. The appellant told the police in his interview that it "went through his mind that they might have been stolen". The appellant took the chainsaws back to his brother-in-law's home and put them underneath the house behind a locked door.

2. About 8.30pm the same day, the police arrived at the brother-in-law's house. They were met at the door by the appellant, his brother-in-law and his sister. One of the officers said that they had information suggesting that there were two stolen chainsaws at the house in the possession of the appellant. All three persons denied that there were any chainsaws on the premises. The police said that they would conduct a search. In the course of the search, the police approached the door leading underneath the house and when they did so the appellant asked them to go with him to the police car as he wanted to speak to them. At the car the appellant told the police that he had the two chainsaws under the house and, when asked why he did not say that in the first place, the appellant said, "when I first heard you mention the saws at the front door I didn't say anything because I didn't want to get Debbie and David (his sister and brother-in-law) into any trouble". Asked to what sort of trouble he was referring, the appellant said "well they didn't have anything to do with them and I just wanted to keep them out of it." The chainsaws were recovered and the appellant interviewed on video. The following questions were asked and answers given during the course of that interview:

"Police Officer Right. Is it correct ah that earlier

tonight on speaking to you and the others at the house

I asked or informed you ah that I was there in respect

in chainsaws, that I believed there (sic)were stolen

chainsaws on the premises.

Appellant You did.

Police Officer And everybody at the house ah including

yourself stated that you had no knowledge of chainsaws

there?

Appellant Yes.

Police Officer Can you tell me why yous, why you said

that?

Appellant Because you frightened the hell out of us

and I knew that something's happenin' with the saws. I

knew there musta been something wrong."

3. In his unsworn statement tendered on the trial the appellant said:

"What I said to the police is correct. The thought

went through my mind that they might be stolen because

of what David had said. After I checked them out I

thought that they were okay and that they belonged to

Tony. I did not think that they were stolen until the

police came."

4. At the trial, the defence took no issue with the Crown evidence that the two chainsaws were stolen and that they were in the possession of the appellant. The issue was whether the appellant knew that the two saws were stolen.

5. In opening the Crown case, Crown counsel said that the question would be, "did this man know he was buying stolen property" and rhetorically asked, "why is it denied that there were chainsaws on the premises when police arrived (sic)". In his summing up, the learned trial judge told the jury that the real issue was whether the appellant knew the saws were stolen. He told the jury that the evidence seemed to suggest that he was suspicious at the time he bought them but "that still wouldn't really be enough, he must have known they were stolen, in his own mind he must have known it." At the end of the brief summing up the learned trial judge told the jury:

"The police or the Crown have no witnesses to say how

he did come by it. And so you really only have what

the accused says. And so you should very carefully

think can you disregard his version of the matter and

find him guilty, because that's the only real version,

the only direct version of what happened. It comes

from him. Are you satisfied beyond reasonable doubt

that he's not completely frank in what he's telling to

the court in his unsworn statement and in what he said

to the police or are you prepared to go that one step

further and say we don't think he's being truthful, and

not only that we ... are satisfied beyond reasonable

doubt that he knew that the property was stolen before

the police came to that house and he had possession of

it. Are you prepared to go that one step further."

6. After the jury commenced their deliberations, this perfectly straightforward trial took an unusual turn. The jury returned with a question. In effect, the question was whether the accused was guilty of receiving if the jury were satisfied that he had the requisite guilty mind but only after the police arrived at the house and spoke to him. The evidence was that there was only a brief period - about 10 minutes - between the time the police arrived at the house and the appellant telling them that he had the property and subsequently handing it over. It is clear that until the jury asked that question, it had not occurred to counsel or the learned trial judge that a possible version of events was that the appellant did not know that the chainsaws were stolen until after the police arrived and said to him that they believed that he had possession of stolen goods. In this event his failure to immediately admit to his possession could result in a finding that he was in possession of stolen property but only for a very short period of time. Counsel for the appellant submitted to the learned trial judge that as the case for the Crown had been put on the basis that the appellant had the guilty mind at the time he bought the saws, the jury should be told that unless they were satisfied that the appellant had the requisite guilty mind before the police arrived, he should be acquitted. Counsel for the Crown submitted that the jury should be directed that if they were satisfied of the existence of guilty mind at any time during the appellant's possession, they should find him guilty. In the end, the learned trial judge instructed the jury that they should consider the case in two parts; the first part being from the time the appellant took possession of the saws until the arrival of the police and the second part being after the arrival of the police. He said that he was really asking "did he commit the crime before the police arrived or did he commit the crime after the police arrived?" The jury returned a general verdict of guilty and then, in answers to questions put to them, said that the appellant did not commit the crime before the police arrived at the house but that he did commit it after their arrival.

7. Mr Kable QC, senior counsel for the appellant, submitted that his Honour's direction that the appellant could be found guilty on the basis of guilty knowledge only after the arrival of the police constituted a miscarriage of justice. He put his submission on the primary basis that "it was never the Crown case that the utterance of the police officer activated the guilty state of mind." This is true in the sense that the Crown never advanced its case upon that basis, but such a case was contemplated by the indictment in that the particulars alleged that on the day in question the appellant had in his possession without lawful excuse 2 chainsaws knowing them to have been stolen, and in its conduct of the Crown case counsel for the Crown did not expressly exclude any period of time on that day.

8. The Code, s402 provides inter alia, that "the court shall allow the appeal if it is of opinion that ... on any ground whatsoever there was a miscarriage of justice." With respect to a similar provision in the Crimes Act (Vic), Barwick CJ observed in Ratten v The Queen [1974] HCA 35; (1974-1975) 131 CLR 510 at 516, that although miscarriage of justice was not defined by the statute, "(i)ts significance is fairly worked out in the decided cases." His Honour cited a failure to get a fair trial as one instance of a miscarriage of justice. There is, of course, no closed list of what constitutes unfairness in this sense. Jenkinson J said in Wyatt v R [1991] FCA 60; (1990-1991) 99 ALR 490 at 493, "I do not understand the categories of circumstances giving rise to such a miscarriage (of justice) to be closed." See also Re Knowles [1984] VicRp 67; (1984) VR 751 at 760-761. In Jago v District Court of New South Wales and Ors [1989] HCA 46; (1989-1990) 168 CLR 23 Deane J said at 57:

"The general notion of fairness which has inspired much

of the traditional criminal law of this country defies

analytical definition. Nor is it possible to catalogue

in the abstract the occurrences outside or within the

actual trial which will or may affect the overall trial

to an extent that it can no longer properly be regarded

as a fair one. Putting to one side cases of actual or

ostensible bias, the identification of what does and

what does not remove the quality of fairness from an

overall trial must proceed on a case by case basis and

involve an undesirably, but unavoidably, large content

of essentially intuitive judgment. The best that one

can do is to formulate relevant general propositions

and examples derived from past experience."

9. For the appellant, it was argued that unfairness occurred when the learned trial judge directed the jury that they could find the appellant guilty on a basis, technically within the terms of the indictment, but not relied upon by the Crown during the course of the trial. There is authority for the general proposition that a miscarriage of justice may arise if the case left to the jury is a departure from the case put by the Crown during the trial. In King v The Queen [1986] HCA 59; (1986) 161 CLR 423 it was held that to leave to the jury a basis for conviction, open on the pleading, but contrary to that on which the Crown had put its case, was a miscarriage of justice. The departure in that case occurred when the trial judge put to the jury that they could convict King of murder if they considered it possible that he incited, not the co-accused, but another unknown person to commit murder. Such a circumstance had not been canvassed during the trial. The Crown case was put on the basis that King incited the co-accused Mathews to kill the deceased. The basis for the the New South Wales Court of Criminal Appeal's conclusion that the trial had been unfair, not challenged in the High Court, is apparent from this passage taken from the judgment of Dawson J at 432:

"The element of surprise involved in this course was

held to have resulted in possible prejudice to King's

case, his counsel having cross-examined Siemsen and

addressed the jury in reliance upon the presentation of

a case by the Crown that the person who killed the

deceased was Mathews (the co-accused). Had King's

counsel known that alternatively Siemsen or some other

person unknown to the Crown was alleged to be the

actual murderer, he may well have cross-examined or

addressed in a different way."

10. In Anderson v The Queen (1991) 53 A Crim R 421 the New South Wales Court of Criminal Appeal held that unfairness occurred in permitting the Crown to put a theory to the jury that was not supported by the evidence. At 439 Glesson CJ, with whose reasons the other members of the court agreed, held that putting a theory to the jury that was theoretically open but not supported by the evidence was unfair. Unfairness arose from the failure of the Crown to adduce evidence to support the theory, evidence that the defence could have tested. In Falconer-Atlee v The Queen (1973) 53 Cr App R 348 the Court of Criminal Appeal held that a miscarriage of justice occurred when a case of theft was put to the jury on a basis that Crown counsel had expressly disclaimed in his opening address.

11. It can be distilled from those cases that unfairness amounting to a miscarriage of justice arises not from the way in which the Crown conducts its case per se, but from the consequences such conduct has upon an accused on the conduct of his or her own case. Such a consequence may be detrimental to an accused in that the conduct of the Crown case led him or her into conducting his or her case in a way different from that in which he or she would have conducted it had the Crown not acted as it did.

12. In the present matter, although Crown counsel put the Crown case on the basis that the appellant knew the goods were stolen at the time he bought them, nothing was said or done in the conduct of the case for the Crown which could have reasonably misled led the appellant into thinking that guilty knowledge after the arrival of the police was not in issue. Whilst it is true that until the jury asked the question it had not occurred to counsel for the appellant that such guilty knowledge could be a basis for conviction, that state of affairs was not induced by the conduct of the Crown case. In his directions to the jury the learned trial judge told them the question was whether the appellant had the guilty knowledge "before the police came to that house," but of course, that was said after all the evidence was complete and it could not be said that had that direction not been given, the accused would have conducted his case differently.

13. Mr Kable QC also submitted that error of law or unfairness occurred in the failure of the learned trial judge to give the jury further directions on the issue of guilty knowledge after they asked the question. In his charge to the jury the learned trial judge said this with respect to guilty knowledge:

"Now finally we come to the last element of this crime

and it is obviously the critical one in this case, and

that is the accused must have had possession of these

chainsaws knowing the same to be stolen property.

Knowing it. Now that doesn't mean suspecting it or

thinking that they might be, or worrying about it, 'oh

I don't know, perhaps they are, I don't know', that's

not enough. He must have known they were stolen

property. Now that's the word that the Criminal Code

uses when it defines this crime. It defines the crime

as 'any person who without lawful excuse receives or

has in his possession any stolen property knowing it to

be stolen property is guilty of a crime'. And what

troubles me a little, that I should have to tell you

what that word means 'knowing'. You either know it or

you don't know it. But I warn you it's not suspecting

it, you must know it. Now in some cases it's been said

that means believe it. A real belief that it is.

Sometimes it is said it's not an absolute certainty.

You know, you don't know it as an absolute certainty

but you know it. Well I don't want to confuse you,

with using other words really, you've got to decide

beyond reasonable doubt, did the accused know they were

stolen. Know it. Okay. If you're not satisfied of

that beyond reasonable doubt you must find him not

guilty.

Now his case is that he did not know it. He accepts

that he suspected they might have been, that he was

warned by his brother-in-law that the person he was

going to deal with was a person who sold stolen

property. I think at least one of the police officers

said who stole property and sold it. And that he was

warned not to deal with him. And so the thought that

the property according to the accused came into his

mind but he didn't know it and he said he saw the, this

is his case, whether you accept it or not is a matter

for you, but he says he saw that the serial numbers

were still on the chainsaws, they looked well used, he

believes this person used chainsaws himself and so

according to the unsworn statement, which I've

misplaced, he says this at the end. 'What I said to

the police is correct. The thought went through my

mind that they might be stolen because of what David

had said, after I had checked them out I thought that

they were okay and that they belonged to Tony. I did

not think that they were stolen until the police came'.

So in the end he seems to be saying although I thought

about it, as to whether they were stolen, I was

comfortable when I bought them. But even if he was

suspicious when he bought them that still wouldn't

really be enough, he must have known they were stolen,

in his own mind he must have known it."

14. Strictly speaking, unless the appellant saw the chainsaws being stolen he could not know that they were stolen. For the purpose of the crime of receiving, guilty knowledge arises if an accused believes that the goods were stolen to the extent that his or her mind will admit to no possibility other than that the goods are stolen. See R v Dick Cosgrove J 99/1982. Although the relevant section speaks of knowledge, the question is one of belief. See R v Schipanski (1989) 17 NSWLR 618; English v The Queen (1994) 68 A Crim R 96. Suspicion is insufficient.

15. Acknowledging that hindsight brings great clarity of vision, I have come to the conclusion that the jury should have received further directions with respect to the issue of guilty knowledge after they asked the question that indicated that they might convict on the basis that guilty knowledge did not arise until after the arrival of the police at the house. No earlier direction had been given with respect to guilty knowledge arising during this period of time and the circumstances were such that in my respectful opinion, one was required. The statement in the appellant's unsworn statement is equivocal. He said "I did not think that they were stolen until the police came." In his interview with the police, the reason the appellant gave the police for lying to them about the existence of the saws is also equivocal; "Because you frightened the hell out of us and I knew that something's happenin' with the saws. I knew there musta been something wrong." In earlier answers given the police in the interview, the appellant said in effect, that he had wanted to ensure that his relatives were not involved in the matter. A possible view of the appellant's state of mind after the arrival of the police was that he immediately panicked and, without really considering the matter, lied to protect his relatives from any involvement. Another possible view of the evidence was that the appellant did not reach the requisite guilty state of mind until some point in time after arrival of the police and before they took possession of the stolen property. That possible view of the evidence encompasses a possible proposition that immediately after the appellant's mind reached the necessary degree of certainty that the goods were stolen, he decided to hand them over to the police but delayed doing so until his relatives were not in the vicinity. There may have been other views open to the jury on the evidence. The learned trial judge added nothing to the direction on knowledge that he gave the jury before they first retired. That is understandable for no doubt all attention was focused on how to take a verdict and what questions should be asked and so on, all matters that unexpectedly arose on what, until then, appeared to be a very short, simple, single issue trial. However, in my respectful opinion error occurred in the failure to give the jury a more specific direction with respect to the issue of guilty knowledge after the police arrived. An obvious inference is that some time before the appellant said to the police that he wanted to speak to them alone he had decided that he would give them the chainsaws. Presumably, his possession thereafter was with lawful excuse viz, to hand them over to the police. Thus, before they could convict, the jury had to be satisfied beyond reasonable doubt that after the police arrived at the house and one of them had said that they had information suggesting that there were two stolen chainsaws on the property in the possession of the appellant, and before the appellant decided that he would turn them over to the police, the appellant believed, to the exclusion of any contradictory proposition, that the property was stolen. The period of time under consideration is measurable in minutes. The evidence admitted various possibilities within that period. All this called for a further detailed direction to ensure that the jury properly applied their minds to the issue. The absence of such a direction constitutes error vitiating the trial and requires an order that the conviction be quashed.

16. The jury's answers to the questions establish that they were not satisfied that the appellant knew the chainsaws were stolen when he bought them, that guilty knowledge did not arise until sometime after the police spoke to him and the others at the house and consequently, criminal possession lasted for no more than about 10 minutes. The appellant is without prior criminal conviction. The learned trial judge made a probation order on conviction. In these circumstances I would not order a new trial.

SLICER J The appellant was convicted of the crime of receiving contrary to the Criminal Code, s258. The Crown case was that during the day of 1 November 1992 he had purchased two stolen chainsaws from an unnamed person. After purchase the appellant had taken them to the home where they were placed in an area accessible only through a small locked trapdoor. At about 8.30pm on the same day two detectives went to the house making inquiries as to the whereabouts of the chainsaws. The appellant denied any knowledge of their presence. During the search of the premises a detective noticed the locked trapdoor and requested the appellant to provide the key whereupon the appellant, taking the officer to one side, admitted the presence of the two chainsaws.

2. No issue was taken at trial as to the questions of possession or status of the chainsaws. The appellant contended that he had no knowledge that the property was stolen. He admitted suspicion, but in the words of his unsworn statement "did not think that they were stolen until the Police came". The case had been presented on the basis that the appellant possessed the requisite mens rea up until the moment of detection. The summing up by the learned trial judge correctly directed the jury as to the legal ingredients required to establish the crime and fairly outlined to the jury the respective evidentiary cases of the parties. No issue was taken by the appellant with the summing up.

3. The jury, having deliberated for some time, returned to court and asked the following question:

"... we're not quite sure as a Jury what we're supposed

to actually find out because up to the time the police

came to the residence, he, the accused didn't know

whether the property was stolen or not."

4. The question did not necessarily imply that the jury had reached that conclusion. Its import becomes clear upon an examination of the following exchanges between his Honour, the forewoman and counsel:

"His Honour: We're not concerned about what happens

after the police arrive and they told him it was

stolen, we're not concerned, oh I see what you mean,

there could be that brief moment, couldn't there.

Forewoman: The denial period of about ten minutes and

then he admitted.

...

His Honour: (to counsel) ... Let's say the Jury says

well up until ... the police arrive and say 'we're

looking for two stolen chain saws', and that was

sufficient to tip his mind over into making him know.

And he realised 'hello they're stolen'. And he didn't

tell them, and he thought 'I won't tell them'. So then

there's ten minutes, he might have known for ten

minutes and then when he realised they were going to

find them he told them."

5. That exchange accurately stated the issue required to be determined by the jury.

6. The learned trial judge initially requested that the jury return a special verdict dependent on whether the jury was satisfied (beyond reasonable doubt) that the appellant possessed the requisite knowledge in the following terms:

"... immediately prior to the arrival of the police at

that address, was the accused without lawful excuse in

possession of two Stihl chain saws which had been

stolen knowing the same to be stolen property."

or

"... after the arrival of the police at 15 Blackwood

Drive, was the accused without lawful excuse in

possession of two Stihl chain saws which had been

stolen knowing the same to be stolen property."

7. The jury was then requested to retire and continue with its deliberations. After some further time the court was reconvened. His Honour, having considered the provisions of the Code, s383, doubted that he could require the entry of the special verdict and decided to request the jury to return a general verdict after which he would ask for the factual basis of the verdict so as to assist him in the determination of the appropriate penalty. The jury was told that a verdict would be taken and then his Honour might ask them "for the answers to those questions". The learned trial judge then proceeded to give them directions in the following terms:

"... if the answer to either of those questions is

'yes' and it may be to both of those questions ... then

he would be guilty"

the two questions being expressed as:

"If on that day immediately prior to the arrival of the

police he was without lawful excuse in possession of

two Stihl chain saws which had been stolen knowing the

same to be stolen property, he clearly would be guilty

... before the police arrived"

and

"... I also direct you that if after the police arrived

... at that house, he was in possession of those chain

saws, and that they had been stolen and he knew that,

he knew that they were stolen property, and if you're

satisfied of that beyond reasonable doubt, then he

would be guilty."

8. The appellant contended that the conviction was unsafe and unsatisfactory. At the commencement of the hearing of the appeal leave was granted to enable the notice of appeal to be amended to include "a miscarriage of justice", such miscarriage being particularised as:

(i) The learned trial judge failed to give any or any

sufficient direction to the jury as to what the Crown

had to prove as to the possession of the chainsaws by

the accused in respect of the period of time from the

arrival of the police at the door of the premises at 15

Blackwood Drive, Rocherlea; and/or

(ii) The learned trial judge authorized the jury to

find the accused guilty upon a version of facts never

put by the Crown or answered by the accused, nor put by

the learned trial judge in his summing up; and/or

(iii) The learned trial judge erred in law in

permitting the jury to consider a version of facts

never relied upon by the Crown during the evidence or

during its address in circumstances where the accused

had no opportunity adduce (sic) evidence to answer the

allegation; and/or

(iv) The learned trial judge erred in law in permitting

the jury to find the accused guilty of a version of

facts and/or basis which basis first arose during the

deliberations of the jury when the accused had neither

the opportunity to adduce evidence (either in the form

of an unsworn statement or otherwise) nor his counsel

to address the jury upon the issue."

9. The appellant did not contend that, as a matter of law, the jury could not have convicted on the basis of events occurring after the arrival of the police. His primary contention was that since neither party had conducted its case on the basis of those events, it was unfair for the appellant to have to meet a fresh basis sufficient to ground guilt at the conclusion of the summing up of the learned trial judge. The secondary basis was the adequacy of further directions.

10. The Crown case had always been that the appellant had:

- been in possession of the stolen items at all times since

their purchase on the day specified in the indictment. The

contention was that such possession continued until the

taking of the items by the investigating police; and

- possessed the requisite knowledge contemporaneously with

the act of possession.

11. The evidence relied on by the Crown comprised the unchallenged evidence of physical possession of the property, its presence in a locked section underneath the premises occupied by the appellant, his conduct at the time of the search by police and statements he made in a subsequent interview. In that interview he admitted the purchase of the property earlier in the day and that the thought had gone through his mind that the items could be stolen. He told police that his brother-in-law had advised him to:

" ... keep away from him (the supplier) ... be careful

cause they could be no good dealin' or buyin' anything

off him.

...

... that it was dangerous gettin' stuff off him."

12. On that evidence it was open for the jury to find guilt up to the time when he admitted possession of the items and notionally (at least) abandoned possession of them. It could not be said that the prosecution case was confined to a time exactly coinciding with the arrival of the police. The appellant, in his unsworn statement, raised a new matter, namely that after his suspicion had been raised he had made further enquiries which had satisfied him as to the bona fides of the transaction. The relevant portion of the statement reads:

"What I said to the police is correct. The thought

went through my mind that they might be stolen because

of what David had said. After I had checked them out I

thought that they were OK and that they belonged to

Tony."

13. That evidence could be taken by the jury as representing an initial suspicion followed by a diligent enquiry which negated a state of mind necessary to ground knowledge. That had never been part of the Crown case, and this factual material raised in the unsworn statement had not been raised by the appellant in his interview with police. Indeed the appellant in his interview had suggested the contrary, as the following exchange illustrates:

"Q But you're also saying that the thought went through

your mind that they could be stolen property?

A Yeah that did.

Q Did you ... do any checks or make any, do anything to

ascertain whether they were stolen or not?

A No I didn't really worry about it at the time no."

14. It was this evidence which may have caused the jury to concentrate on the narrow time frame encompassed in the jury question. This was evidence of the appellant. It could not be said that the nature of the Crown case had altered. In his unsworn statement the appellant further confined the issue by concluding "I did not think that they were stolen until the Police came".

15. The question raised by the jury arose out of the defence case. The version given by the appellant had not formed part of the Crown case since it flowed from factual material solely within the province of the appellant. It is wrong to assert that he had no opportunity to answer the material nor to adduce evidence to rebut it. It was his case. The legal ramifications may not have been considered by either the Crown or the defence but that is a different proposition. Further it is wrong to assert that the jury finding was dependent "on a version of facts and/or basis which basis first arose during the deliberations of the jury". The facts relied on were those which had been placed in evidence before the conclusion of the defence case.

16. The position differs from a situation where a different factual hypothesis is put forward by the Crown during the course of summing up, such factual hypothesis being contradictory to the basis relied on throughout the trial (see King v R (1985) 17 A Crim R 184 and Anderson v R (1991) 53 A Crim R 421).

17. There was evidence which was capable of grounding a finding of guilt. As the High Court, in a joint judgment, observed in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 214-215:

"... if there is evidence (even if tenuous or

inherently weak or vague) which can be taken into

account by the jury in its deliberations and that

evidence is capable of supporting a verdict of guilty,

the matter must be left to the jury for its decision."

18. In this case the learned trial judge, having received the question from the jury, afforded counsel every opportunity to make submissions both as to the substantive issue raised by that question and as to the procedural course to be followed by the jury. The course followed could not, of itself, be said to constitute a basis for finding that there had been a miscarriage of justice (see R v Lunn (1985) Crim LR 797).

19. In a case such as this the correct approach is that suggested by the Court of Appeal in Adair v R (1958) 42 Cr App R 227 at 231:

"In our view, it would not be right to say that in

every case where by the form of their question a jury

indicate a different approach to the problem from that

which was put forward on behalf of the Crown, it is

necessary by way of further direction to review all the

evidence relevant to the points involved in the jury's

question. But if the form of the question shows that

the jury appear to be assuming facts or drawing

inferences for which there was no supporting evidence,

further direction is called for and they should be

reminded how far the relevant evidence went."

20. The question asked by the jury raised a number of issues concerning knowledge. Given that the jury was not satisfied beyond reasonable doubt that the appellant did not possess the requisite knowledge until some time after the arrival of police, those issues can be identified as:

- Whether the evidence of denial of possession could be used

as evidence of knowledge coupled with an intention to retain

possession of the stolen property and if so whether such

constituted possession without lawful excuse.

- Whether the statements of denial constituted an attempt to

avoid detection as distinct from an attempted maintenance of

possession.

- Whether the time frame encompassed by potential criminal

liability extended to the time when the police took physical

possession of the items or concluded with the admission that

the items were present and were therefore available for

transfer into police custody.

21. These questions are not, even with the benefit of hindsight and the considered submissions of counsel, obvious. Nevertheless the appellant was entitled to the benefit of directions in law on those issues.

22. Accepting that the appellant possessed the requisite knowledge as a result of what he was told by the investigating officers, it is then necessary to consider any liability in the light of his subsequent conduct up until he conceded possession. In law he was entitled to remain silent, being under no duty to inculpate himself. Two principles operate - the right of silence and the criminal liability of a person with knowledge of the identity and status of stolen property remaining in his possession. There is no simple reconciliation of these principles although any balancing should advantage an accused.

23. Liability would attach if a person, subjected to an enquiry, answered so as to retain possession. Silence, maintained in order to avoid inculpation, would not constitute an attempt to maintain possession. Since the right of silence is regarded in law as justified conduct, no adverse inference could be drawn against a person exercising such right. On the other hand a lie told by the suspect could be regarded either as an attempt to avoid inculpation or as a means of retaining possession. It may be that the desired consequence, namely that the police cease their investigation leaving the suspect unimplicated and the property untouched, meets both criteria. In such a case a positive act, such as a lie, would involve criminal responsibility. But if the lie resulted from panic and an instinctive desire to avoid consequence it could not be said that the suspect possessed the requisite mens rea. Accepting physical possession as a constant, the conduct of a person who becomes aware of the status of the property only as a result of information supplied by the police, the owner or other interested person attracts criminal responsibility if the intention is to maintain possession. That state of mind, albeit transient, remains a jury question. At a stage when the suspect decides that further deception is pointless, the disclosure of possession constitutes an abandonment of possession and the "continuing" offence or crime is completed. In R v Kanwar (1982) Crim LR 532 the Court of Appeal held that lies told by a person with the intention of concealing the identity of stolen property in order to benefit another could constitute "the handling of stolen goods".

24. A similar situation was considered by the Court of Appeal (UK) in Brown v R (1969) 53 Cr App R 527 where a suspect who was the subject of an unsuccessful police search had replied "Get lost" to an enquiry concerning the presence of stolen property. His conviction for the "dishonest retention of stolen goods" could only have been sustained "on the basis that the jury were satisfied that at some stage before the police arrived the appellant knew that the (property) had been stolen". The Court of Appeal, whilst applying the proviso, held that there had been an inadequate direction and in so doing declared, at 530:

"It is urged here that the mere failure to reveal the

presence of the cigarettes, with or without the

addition of the spoken words 'Get lost,' was incapable

in itself of amounting to an assisting in the retention

of the goods ... The Court has come to the conclusion

that that is right. It does not seem to this Court

that the mere failure to tell the police, coupled if

you like with the words 'Get lost,' amounts in itself

to an assisting in their retention."

25. The question was canvassed in a more comprehensive manner in a subsequent decision of the Court of Appeal in Raviraj and Ors v R (1987) 85 Cr App R 93 when the Court of Appeal reviewed earlier authorities dealing with the failure of a suspect to provide any explanation for the possession of elicit property. The court observed, at 104, that:

"This behaviour as a whole, including the refusal to

offer any explanation of how the goods came to be in

the warehouse, had to be considered by the jury and

might be taken as some evidence of guilt"

but that in such a case a direction would be required in terms set out in Aves v R (1950) 34 Cr App R 159, namely:

"If all that the police have against a man is that

someone who does not give evidence at his trial accused

him ... to the police and the police relayed the

accusation to him, and the person accused remains

silent, no adverse inference may be drawn from his

silence." (Raviraj (supra) at 102.)

26. The court in Raviraj (supra) concluded, at 107:

"... had we considered that the judge was directing the

jury that recent possession of stolen goods founds an

exception to the right of silence, this would have been

a misdirection."

27. As the High Court stated in Bruce v R [1987] HCA 40; (1987) 61 ALJR 603:

"Where an accused person is in possession of property

which is recently stolen, the jury is entitled to infer

as a matter of fact, in the absence of any reasonable

explanation, guilty knowledge on the part of the

accused. Such an inference will be drawn from the

unexplained fact of possession of such property and not

from any admission of guilt arising from the failure to

proffer an explanation. It is the possession of

recently stolen property in the absence of explanation

or explanatory circumstances, which enables the

inference to be drawn. Thus the absence of any

reasonable explanation must not itself be explicable in

a manner consistent with innocence.

The accused must have had an opportunity to give an

explanation in circumstances where, if he is innocent,

an explanation might reasonably be expected. Those

circumstances do not encompass the situation where an

accused, having been duly cautioned, declines to answer

questions by the police in the exercise of his right to

do so. On the other hand, the fact that the caution

was given or that the right to silence was asserted or

exercised does not itself provide an explanation of the

possession of recently stolen goods or necessarily

negate the existence of circumstances of unexplained

possession of such goods where such circumstances

otherwise exist."

28. In the present case it was appropriate that the jury be instructed as to the use which it could make of the statements made by the accused to the police before the admission of possession of the property. Whilst the learned trial judge had afforded counsel the opportunity to make further submissions (see R v Lunn (supra)), the failure of counsel to direct the mind of the judge to the issues involved does not preclude the appellant from raising the question on the hearing of this appeal. Although as was stated in Adair v R (1958) 42 Cr App R 227 at 231: "... it would not be right to say that in every case where by the form of their question a jury indicate a different approach to the problem from that which was put forward on behalf of the Crown, it is necessary by way of further direction to review all the evidence relevant to the points involved in the jury's question" it is, in the words adopted by the Court of Appeal in Currell v R (1935) 25 Cr App R 116 at 118 and used in Schama and Abramovitch v R (1914) 11 Cr App R 45 "... essential in cases of this character that there should be a careful and proper direction".

29. In my opinion it could be said that the jury reached a verdict on the basis that at a time subsequent to the statement made to the police officer, the accused was obliged to answer the question, or that at the time he admitted possession the requisites of the crime had been met. Under these circumstances it could be said that there had been a miscarriage of justice.

30. Given the finding of the jury as to the events preceding the arrival of the police, I do not believe it would be appropriate that the provisions of the Code, s402(2) be applied. Given the possibility that it was open for the jury to have found that the lies told by the accused to the police could have, in themselves, constituted evidence of guilt, I believe that it would be appropriate to order that a new trial be held on the indictment. The jury did not return a special verdict and it would be appropriate that the new trial be held in relation to the indictment as originally framed.

31. I would allow the appeal and grant a new trial.