R v Hill [2010] ACTSC 18

3. Before the trial commenced, a fresh indictment was presented. That indictment charged:

... that on the 1st day of April 2008 at Canberra in the Australian Capital Territory GREGORY HILL attempted to dishonestly receive stolen property, namely, a black coloured Compaq brand laptop computer.

4. Mr Gill, who appeared as counsel for the accused, objected that the indictment so framed was defective. It replaced the indictment laid after committal which had alleged the offence as "dishonestly attempted" and had the words "knowing or believing that property to be stolen property" last appearing. Whilst not challenging the change in placement of the adverb "dishonestly", Mr Gill submitted that by not alleging that the accused knew that that property was stolen, the indictment set out a charge not known to the law of this Territory (cf R v Boston [1923] HCA 59; (1923) 33 CLR 386).

5. I do not agree that there is a defect apparent on the face of the fresh indictment. Even if Mr Gill's qualification that an allegation in the indictment that knowledge, not belief, in the property being stolen is the appropriate description of this aspect of the offence (and as will later appear, I do not think it is), neither capacity is a qualification that must appear on the face of the indictment to make the charge known to law. In my view, there is no substance in the objection taken and, accordingly, I directed that the accused 'answer over' to the indictment presented (see s 262 Crimes Act 1900 (ACT)).

6. The accused then pleaded not guilty to the charge.

7. Section 68C of the Supreme Court Act 1933 (ACT) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury as to the guilt of an accused person and any such finding has the same effect as a verdict of a jury. My judgment in this proceeding is to include the principles of law that I apply and the findings of fact upon which I rely. Further, I must explain the reasoning process linking those matters so as to justify the verdict to which I come (Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250). I must take account of the warnings that would be given to a jury, had this been a trial before that body.

8. There are certain general directions to which I have regard. They are that, as far as the conduct of the trial is concerned, I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until, at the conclusion of the hearing, the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find that the charge has not been proved to the level of satisfaction required by the law and must acquit.

9. The offence charged is that of attempting to commit an offence.

10. The offence of attempt is constituted by s 44 of the Criminal Code 2002 (ACT) (the Code or the ACT Code). Sub-sections 44 (1), (2), (3) and (5) of the Code provide:

(1) If a person attempts to commit an offence, the person commits the offence of attempting to commit that offence.

(2) However, a person commits the offence of attempting to commit an offence only if the person carries out conduct that is more than merely preparatory to the commission of the offence attempted.

(3) The question whether conduct is more than merely preparatory is a question of fact.

...

(5) For the offence of attempting to commit an offence, intention and knowledge are fault elements for each physical element of the offence attempted.

Note Only 1 of the fault elements of intention or knowledge needs to be established for each physical element of the offence attempted (see s 12 (Establishing guilt of offences)).

11. What constitutes the offence of receiving stolen property is set out in s 313(1) of the Code:

(1) A person commits an offence (receiving) if the person dishonestly receives stolen property, knowing or believing the property to be stolen.

12. Section 300 of the Code provides that "dishonest" means:

(a) dishonest according to the standards of ordinary people; and

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

13. In s 314 of the Code, stolen property has an extended meaning for the purposes of the offence of receiving. For the purposes of this case, I take its meaning to include property obtained by theft, robbery or burglary (s 314(4) and (10)) and as also including previously received property (s 314(5)).

14. What is required to constitute the elements of the offence of attempt is set out in the Code. The offence is constituted by physical and fault elements.

15. A physical element may be conduct, a result of conduct, or a circumstance in which conduct, or a result of conduct, happens (s 14 of the Code). Intention and knowledge (amongst other things) are fault elements (s 17 of the Code).

16. Section 44(5) of the Code (set out above) limits the fault elements to those of intention and knowledge for each physical element of the offence attempted.

17. Intention in relation to conduct occurs when a person means to engage in the conduct. A person has intention in relation to a circumstance if the person believes that it exists or will exist (s 18 of the Code).

18. The elements of receiving stolen property are firstly, the conduct constituted by the receiving of the property, that is, taking the property into the accused's possession. That may properly be characterised as a physical element.

19. Secondly, it is to do so in circumstances where it can be said that the accused would be acting dishonestly. That is, that it was known or believed by the accused that his intended conduct was dishonest according to the standards of ordinary people. This could be characterised as a circumstance so as to constitute a physical element but I accept the view expressed in R v Lee [2007] NSWCCA 71; (2007) 71 NSWLR 120 (Spigelman CJ (with whom Bell, Howie and Buddin JJ agreed)) at [9] :

The word "circumstance", referring to an aspect of either "conduct" or the "result of conduct", within the meaning of s 4.1(1)(c) of the Code [the equivalent to s 14 of the ACT Code], is capable of extending to virtually any word of the English language in which an offence is expressed. Nevertheless, the structure of the Code distinguishes between "physical elements" and "fault elements". Where a matter clearly involves an aspect of conduct which, in normal parlance, would be understood to involve fault on the part of the alleged perpetrator of an offence, then, in my opinion, the matter should be classified as a "fault element", rather than be swept up within the breadth of the word "circumstance", as a physical element.

20. However, in the circumstances of the present case, if the fault element of knowing or believing the property was stolen is satisfied, then its subsequent receipt would, in my view, be dishonest according to the standards of ordinary people.

21. Thirdly, the circumstance that the property is property that had been stolen is a physical element.

22. Fourthly, the circumstance that the person receiving the property knew or believed that property to have been stolen is to be properly characterised as a fault element.

23. The effect of s 44(3) of the Code is that the accused must have intended or known each of what I have characterised as the physical elements of the attempted offence. It seems to me that the requirement that the fault elements of intention or knowledge required of what I have identified as the third and fourth elements of the offence in fact merge into one another. This is because s 18 of the Code provides for intention in relation to a circumstance in which conduct or the result of conduct happens to occur if the person believes that it exists or will exist. It follows that if I am satisfied beyond reasonable doubt that the accused believed that the property was stolen, this element will be made out.

24. This matter arises out of a telephone call intercepted by police on 1 April 2008. The call was initiated by a young female (who has not been charged in respect of these matters and did not give evidence before me). That call constituted an offer to the accused to "buy" a "Plasma". An associate of the young female (Mr Reid, who gave evidence before me), took over the phone call and sought to negotiate a price in which "two laptops" or "lappys" were available to be included in the transaction.

25. The transaction was by no means concluded by the telephone call. In the course of the call, the accused tried to get the assent of Mr Reid to him paying half of "it" and showing the items to his "missus" before being able to pay the balance.

26. This telephone call played a central role in the prosecution case and was relied upon to establish the fault elements of the offence.

27. It is appropriate at this stage to observe that the accused did not give evidence. The prosecution bears the onus of establishing its case and I draw no inference adverse to the accused nor do I consider that there was any aspect of the prosecution case that could be assisted as a consequence of the accused not giving evidence. The prosecution case is circumstantial. It is a question of whether I can safely draw conclusions adverse to the accused from the inferences available on the evidence called before me. Because the prosecution must prove its case beyond reasonable doubt, I must take the view that, if there is a reasonable possibility that an adverse conclusion should not be drawn, then the accused is entitled not to have that conclusion drawn.

28. The tenor and content of the telephone conversation enables me to infer that the accused knew that he was being offered property which he believed to be stolen. In that regard, the actual recording of the telephone conversation between M (the accused), the young female and S (Mr Reid) shows in its structure and content the intention of the parties to it. I draw that inference from, amongst other matters, the following circumstances.

29. The accused, it appears, was speaking to persons who initiated an offer to sell items of a nature likely to be stolen at a price which it might be inferred is much less than the items could be expected to fetch. The accused then engaged in bargaining without seeing the items or their condition, for example:

M And um hang on before you do how much was it?

[the young female] Um seven.

M Oh no I can't get my hands on that.

30. There is also the unfamiliarity of parties. For example, the accused says, "do I know you?". There is, as well, the circumstance that the meeting place chosen was one where both parties had to travel some distance to meet and neither seemed prepared to meet at their private premises.

31. I also place some store on the immediate response to the initial offer of a "Plasma". That response being: "Shit yeah". Later in the conversation, the accused professes his intent that by not paying in full that he would not "rort" the offerer and got the response: "It's just that it's me mate's too".

32. I infer from that telephone conversation that the accused knew that this person who said that he had had a previous dealing with the accused, was offering stolen or received goods comprising one television and two laptops. The accused demonstrated his intent to obtain possession of the goods by leaving immediately to meet the persons making the offer which I take it to be in order to obtain possession of one or more of the items on offer.

33. Notwithstanding the defence submission to the contrary, I am satisfied beyond reasonable doubt that the accused knew, or believed that he was being offered stolen property and that by attending the arranged meeting place, he could obtain possession of all or some of it.

34. In the telephone conversation, the arrangement was made for the accused and Mr Reid to meet at "the Erindale Pool" where they had met on a previous occasion. The "pool" area encompassed the parking area serving the Erindale Shopping Centre. Two further telephone calls were intercepted setting up the meeting as the accused was in his car approaching the area.

35. Mr Reid gave evidence identifying his and the accused's voice on the telephone intercept. Mr Reid said that he had asked the young female with whom the accused had first had the telephone conversation to try and sell some "stuff" for him. Mr Reid had not been charged with offences concerning the property but had been convicted and sentenced in respect of other aspects of his criminal activities on that day. With the concurrence of the prosecutor, I informed Mr Reid of his privilege against self-incrimination and, on being satisfied that there were reasonable grounds for an objection to him giving evidence, I gave a certificate under s 128 of the Evidence Act 1995 (Cth).

36. Mr Reid's evidence as to what he was doing with the goods is contained in the following exchange with the prosecutor:

MR HICKEY: Sir, you said during the call, when you were talking about the price, "it's just that it's me mate's too". What were you talking about there?---Just saying it's - that's me mate's.

And that was the TV and the laptops?---Yes. Like I told you, mate, I received the goods and I was selling them for someone, all right?

37. However, at the time the meeting took place, Mr Reid only had with him a single laptop computer. He said he did not know what had happened to the other laptop. What had happened to the "Plasma" TV was not pursued. His evidence was that when the accused arrived at the car park, the accused had a conversation with the young female and Mr Reid at their car. Mr Reid then got into the accused's car taking with him the laptop. Mr Reid said that he got a lift with the accused in the accused's car to the entrance of the Erindale Shopping Centre where he was then arrested.

38. Mr Reid's account of his and the accused's movements are consistent with the observations of the police officers who were monitoring the activities of the accused and Mr Reid consequent upon the information they had obtained from the telephone intercept.

39. Mr Reid's evidence was not particularly satisfactory. Perhaps understandably, having regard to the passage of time, he said he could not remember the content of conversations that he had with the accused in the car. However, he was less than forthcoming about their general import. His evidence was:

On this day, where did you first meet him?---At - down at the pool at the car park.

When you met him at the pool, what did you say to him?---Not - nothing, really.

No? Did you have - - -?---Just jumped in the car and I got a lift up there and, like, I got arrested, yes.

Jumped in his car?---Yes.

And did you have any goods with you?---I just told you I had the laptop bag with me.

Okay. And the laptop was inside?---Yes.

And what did you say to [the accused] about the laptop?---I don't - I can't remember what I said, yes.

You were trying to sell the goods just before?---Well I - yes, trying to sell it.

And so you were trying to sell the laptop to him?---Yes.

And did he agree to buy it?

MR GILL: Did he say something - - -

MR HICKEY: Did he say something.

MR GILL: - - - really needs to be the question your Honour.

THE WITNESS: Yes, like - yes, he didn't really want to buy it. Yes, know what I mean? Like, if anything he was probably just helping me out, you know.

...

And you said that he was trying to help you out. Did he talk about money at all?---No, I'm not like, saying like, he [was] trying to help me out. Yes. No, didn't say nothing about money, yes.

Okay?---Like, I wanted money - I wanted money, you know, and like, he couldn't - he couldn't get the money up, you know what I mean? And then I got arrested.

40. Mr Reid then gave evidence that the accused "just didn't want to pay the price ...". Further questioning by the prosecutor did not elucidate whether or not this was the accused's final position. He was asked about the "price":

And you got in the car with the laptop and you knew why you'd gone to meet [the accused]?---Yeah, yeah.

Sir, what was it that you said to him when you got in the car?---I was just going through, like, you know, like, going through someone else to - yes, just interested and that's it.

And what did he say?---He just didn't want to pay the price, yes.

And what was the price?

...

MR HICKEY: Are you able to remember the exact words he used?---No I can't remember back then man. I'm trying to tell youse this, I don't remember.

You said though, sir, that he wasn't interested for that price?---Yes, yes, I don't know.

What was the price that you'd - - -?---I can't remember.

- - - talked about?---I don't know, I honestly can't remember.

You recall though in the first conversation that I played - - -?---Yes.

- - - that you talked about a price for the bundle?---Yes.

And you'd agree that you arrived at the car with [the accused] without the plasma?---Yes.

So using that to refresh your memory are you able to remember the price that you were talking about?---No, I can't.

41. Mr Reid's evidence of what happened when the car came to the entrance of the shops was in these terms:

Sorry, when you got a lift up the road to the shops, did you or he get out of the car?---Well, I was jumping out and I got - yes, the coppers were there. That's - - -

Where was he at that stage?---I think he - he was getting out as well, actually, yes.

Was he doing anything else?---No, no. I think he might have just been organising to get rid of the stuff for us, I think.

And when you say that, what was he doing that made you think that?---I don't - I don't know. I don't know.

42. Mr Hickey, who appeared for the prosecution, sought to cross-examine Mr Reid as an unfavourable witness (s 38, Evidence Act 1995 (Cth)). I refused the application. It appeared to me that, although Mr Reid's evidence did not fit in with what seemed to be the prosecution theory of the case against the accused, there was little material which could assist in any meaningful cross-examination of Mr Reid. In particular, Mr Hickey could not suggest a prior inconsistent statement or any direct evidence which might challenge Mr Reid's account of his negotiations with the accused.

43. Mr Reid's evidence as to the accused's movements after he left the motor vehicle at the entrance to the Erindale Shopping Centre is contradicted by the evidence of Sergeant Coutts who was a constable at the time called in to assist in the arrest of the accused and Mr Reid. When Sergeant Coutts arrived at where the accused's car was parked in front of the shopping centre, there was only the passenger in the front seat. Sergeant Coutts saw the accused walking from the main entrance of the shopping centre back towards the vehicle. At that time, Mr Reid got out of the vehicle and was arrested by two other police officers as Sergeant Coutts was arresting the accused. It is clear from the evidence of Sergeant Coutts that the accused had, in fact, left the vehicle and was returning to it when arrested. Most significantly, on arrest the accused had three $50.00 notes in his left hand. In his back pocket he had a $50.00 note and a Commonwealth bank eftpos card and wallet. I accept the evidence of Sergeant Coutts as to the accused returning to the car with the money in his hand.

44. Whether or not the accused had expressed to Mr Reid a reluctance to purchase the laptop, it seems to me that the inference as to the accused's intention from the accused returning to the car with money in his hand is inescapable. I find that the accused was returning to the car to purchase the laptop.

45. Mr Gill submitted that until the accused made a determination to acquire the laptop that Mr Reid brought into the car with him, no attempt had been made to receive it.

46. The issue under s 44(2) of the Code is whether the accused's conduct is "more than merely preparatory to the commission of the offence attempted". It is modelled on s 11.1(2) of the Commonwealth Criminal Code. In respect of that provision, The Guide for Practitioners, Commonwealth Attorney-General's Department and Australian Institute of Judicial Administration, March 2002 comments (at 239):

Common law requires conduct proximate to the completed offence before liability is imposed for attempt. The common law requirement of proximity in attempts is the subject of continuing and unresolved contention. A variety of "tests" have been proposed by courts and commentators to determine when preparation ends and the criminal attempt begins. Chapter 2 abandons all these attempts to state a test and poses the issue in stark terms. The question is simply: Was the conduct of the defendant "more than merely preparatory"? The question requires a conclusion of fact to be drawn in the light of all the circumstances of the case.

(Footnotes omitted.)

47. Mr Gill's submission is reflective of the common law test of proximity and its development of the last act test and the unequivocal act test. He referred to the cases of Comer v Bloomfield (1971) 55 Cr App R 305 and Kyprianou v Reynolds (1969) 113 S J 563 as cases which showed the need for a last or immediately proximate act for the offence of attempt to be made out. Those cases, and other like cases, are criticised in The Law of Criminal Attempt - A Treatise, Dr E Meehan (1984) at pp 91-93, to which Mr Gill also referred. In my view, they do not assist me in light of the test adopted under s 44(2) of the Code.

48. In my view, Mr Gill's submission does not give effect to the circumstance plainly to be inferred from the initial telephone conversation that the accused believed that there were three items of stolen property on offer. The accused may have been keeping his options open as to which he would take but he was equally clearly placing himself in the position where he might obtain possession of all or any one of the items.

49. Once he had accepted Mr Reid into his car with one of the items, he was party to an act that was more than merely preparatory to the commission of the act of receiving. In that way the offence of attempt was made out irrespective of any speculation as to what might have been discussed between the accused and Mr Reid as to the accused's intentions with respect to the property.

50. In any event, the accused's subsequent actions in returning to the motor vehicle with the money, which I infer was to purchase the laptop that Mr Reid had brought into the vehicle to sell, is a further act that is more than merely preparatory to the ultimate commission of the offence.

51. I am satisfied beyond reasonable doubt that the accused committed the offence charged. I find the accused guilty.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the prosecution: ACT Director of Public Prosecutions