R v Marijancevic [2001] VSCA 188

2. The applicant, who is now aged 51, pleaded not guilty in the County Court to one count of theft contrary to s.74 of the Crimes Act 1958 and to an alternative count of handling stolen goods contrary to s.88 of that Act. After a trial occupying eight days, he was found guilty of theft and, following a plea for leniency, sentenced to four years' imprisonment with a non-parole period of three years. He seeks leave to appeal against both conviction and sentence.

5. There are ten grounds of appeal against conviction, of which ground 9 was not argued. The other grounds read:

"1. The prosecutor failed (a) to call as prosecution witnesses Mario John Farrugia, Sam Tsambikos, and Paul Mallia; (b) to make Mario John Farrugia and Sam Tsambikos available for the defence. 2. The learned trial judge refused to adjourn the trial to enable the defence to secure the attendance of Mario Farrugia and Sam Tsambikos. 3. The trial miscarried by reason of the absence of goods which were the subject of the counts on the presentment. 4. The prosecution case on the value of the goods in question was substantially more at trial than on sentence in the restitution application. 5. The witnesses Allen and Greaves were wrongly allowed to give evidence of labels on boxes from which they inferred the contents and their value. 6. The learned trial judge erred in his directions to the jury in the following ways: (a) he failed to direct the jury that the central issues in the trial were (i) the ostensible authority of Mark Anthony Mott to dispense the goods in question; (ii) the state of mind of the applicant when he took possession of the goods in question; (b) he failed adequately to direct on the elements of the offences and to relate the law to the evidence; (c) he wrongly directed on recent possession in that (i) recent possession was not an issue; (ii) such a direction was unfairly prejudicial to the applicant; (iii) he directed in writing that the jury could not draw an inference of guilt if the applicant's explanation `could reasonably be true'; (d) he misdirected on lies in that (i) he failed to identify what were said to be lies; (ii) he failed to give an Edwards direction; (e) he failed to direct that the witness Mark Anthony Mott may have had a purpose of his own to serve. Further he indicated to the defence that were he to give such a direction he would further direct that the witness and the applicant were acting together, a proposition never put by the prosecution; (f) he provided written directions which did not properly or adequately state the law. 7. The learned trial judge erred in leaving theft as an alternative to handling. 8. An accumulation of errors resulted in a miscarriage of justice.

...

10. The evidence contained in the affidavit material of Sam Tsambikos demonstrates a miscarriage of justice by reason of fresh evidence."

9. It is difficult to say very much about the facts without appearing to enter into matters of contention. The conclusion I have reached makes it unnecessary and undesirable to do so. It is sufficient to say that the applicant was found in possession of a quantity of clothing stolen from Rockwell Clothing Company Pty. Ltd. and that because the clothing was returned to the company, in one case contrary to a court order and in both cases without informing the applicant's solicitors, he was disadvantaged in the conduct of his defence.

12. It is convenient to begin with ground 7. That is partly because, on any view of the case, it must be decided. If it is made out, the application must be granted and the appeal allowed. If it is not made out but another ground is upheld and a new trial is directed, this ground would still have to be decided because the same point would arise at the new trial.

"Were you to be satisfied by reason of the accused man's possession of the property without satisfactory explanation, of recently stolen property, that the accused was either the thief of it or a handler of it, but you are unable to be satisfied beyond reasonable doubt which, then you should find him guilty of the lesser of those charges, and in this case the lesser charge, the less serious charge, is that of theft."

That direction was in accordance with Gilson v. R.[1] The submission made under cover of ground 7 was that that case does not apply to the provisions based on the English Theft Act 1968 that are to be found in Division 2 of Part 1 of the Crimes Act and that the jury should have been directed in accordance with R. v. Bruce[2].

20. Section 88(1) of the Crimes Act provides:

"(1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods or brings them into Victoria, or dishonestly undertakes or assists in bringing them into Victoria or in their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so." (Emphasis added.)

That sub-section is in the same terms as s.22(1) of the Theft Act except for the references to bringing stolen goods into Victoria, which have no counterpart in the English provision. Sub-section (2) now provides that the maximum penalty[3] is 15 years' imprisonment, in contrast with the maximum penalty for theft, which is ten years' imprisonment. Sub-section (3) deals with the position of married women.

25. In R. v. Bruce there were two trials. At the second the applicant was convicted on two counts of theft and seven counts of handling. In directing the jury in relation to the doctrine of recent possession, the trial judge told them that, if they were in doubt as to which the applicant was, namely the thief or the receiver[4], but had no reasonable doubt that he was one or the other, they should find only the lesser, that he was a receiver as alleged in the alternative counts. In a reserved judgment in which Young, C.J. and Crockett, J. concurred, Gray, J. held that the vice in that direction was that the jury may have found the applicant guilty of handling without being satisfied that the elements of that offence had been established. In particular, he construed the direction as an invitation to find the applicant guilty of handling even if they were not satisfied that the handling was "otherwise than in the course of the stealing"[5].

28. It will be apparent from what I have already written that it was part of his Honour's reasoning that the words "otherwise than in the course of the stealing" in s.88(1) constitute an element of the offence. Later in the judgment he expressly rejected the suggestion that those words might be no more than a defence. In R. v. Koene[6] Lush, J. had said in an extempore judgment:

"In my opinion the words, `otherwise than in the course of the stealing' provide a defence to a charge laid under the section. It may well be, but I do not decide, that the Crown carries the onus of displacing this defence. It is not, however, necessary for the trial judge to direct the jury on the issue unless the evidence in the case raises the question on which the issue turns."

Murphy and Fullagar, JJ. had concurred with Lush, J., but the application had been dismissed on the footing that the evidence did not raise the issue. In R. v. Bruce the issue was squarely raised and that construction of those words was rejected.[7]

33. The relevant part of Gray, J.'s judgment, at 597-602, is too long to set out in full, but it does repay study. His Honour's conclusion was that Bruce could be found guilty of handling only if the jury were satisfied beyond reasonable doubt that he received the goods otherwise than in the course of the stealing, but the decision is not confined to a conviction for handling. It was held that the Crown had to prove all the elements of theft to obtain a conviction for theft and all the elements of handling to obtain a conviction for handling. It was not sufficient that the jury were satisfied beyond reasonable doubt that the applicant was guilty of one or the other. To decide which on the balance of probabilities was contrary to fundamental principle and to convict the accused of what the judge considered the lesser offence blurred the functions of judge and jury.

36. The solution, it was suggested, was that a statutory offence should be created consisting of proof of knowingly being in possession of stolen property, to be available where the evidence was as consistent with stealing as receiving.[8] I observe, with great respect, that that is not quite right. In the first place, a policeman may knowingly be in possession of stolen property. So may a finder on her way to returning it to the true owner. The gist of the new offence, consistently with the Theft Act provisions, would be knowingly and dishonestly being in possession of stolen property. Secondly, the offence would have to be available not only where the evidence was as consistent with stealing as receiving but also where the jury were satisfied that the accused was guilty of either theft or handling by receiving but could not decide which on the criminal standard, even if they thought one more likely than the other. Thirdly, if this solution is adopted, not only handling by receiving but at least some of the other forms of handling in s.88(1) should also be covered.

39. Gilson v. R. was an appeal from the Supreme Court of South Australia, so that the High Court was concerned with the common law[9], not provisions based on the Theft Act. Those provisions are not a mere tidying up or refinement of the common law. They are a new approach to the topic of crimes of dishonesty.[10] In their original form they were inserted in the Crimes Act by s.2 of the Crimes (Theft) Act 1973, s.3 of which provided that the common law offences of, among others, larceny and receiving stolen property were abolished for all purposes not related to offences committed before the commencement of the Act.

42. The problem that confronted the Court was the problem of a jury who are satisfied beyond reasonable doubt that the accused either committed larceny or received stolen property but are unable to choose between those alternatives. Mason, C.J., Deane, Dawson and Toohey, JJ. held that the judge, rather than directing the jury to return a verdict of guilty of the offence which they consider to have been the more probable, should direct them that, if they are satisfied beyond reasonable doubt that the accused either stole the property or received it knowing it to have been stolen but are unable to say which, they should return a verdict of guilty of the less serious offence. The judge should also direct the jury which of the offences they should regard as the less serious. Prima facie, their Honours said, that would depend on the maximum penalty but the circumstances of the case might displace that prima facie approach.[11]

45. As the paragraph of the joint judgment at 364-365 recognizes, there are difficulties about using the maximum penalty for larceny and receiving stolen goods. In simple cases larceny has been regarded as the more serious offence but, mainly to deal with professional receivers whose activities encourage theft, receiving has often carried the heavier maximum penalty. Similar difficulties apply with respect to theft and handling. When the Crimes (Theft) Act was enacted, the maximum penalty provided for theft was ten years' imprisonment and the maximum for handling was 14 years' imprisonment. Between 22nd April 1992, when the Sentencing Act 1991 came into force, and 1st September 1997, when s.60 of the Sentencing and Other Acts (Amendment) Act 1997 came into force, the maximum penalty for both offences was 10 years' imprisonment. Since then the maximum penalty for theft has been 10 years' imprisonment and the maximum for handling 15 years' imprisonment. Maximum penalties are designed for the worst classes of case. Outside the field of professional receiving the difference between ten years and 15 years' imprisonment may be an uncertain guide. As their Honours said, it depends on the facts.[12] In R. v. Bruce the judge treated handling as the less serious offence notwithstanding that it carried the heavier maximum. In the present case the transcript shows that the judge treated theft as the lesser offence because of the maximum penalty.

48. Gaudron, J. agreed in substance with Mason, C.J., Deane, Dawson and Toohey, JJ., adding that the jury should be directed to consider the more serious offence first.[13] Brennan, J. considered that the more serious offence was to be determined only by the maximum penalty; and that, where there was a difference in penalty, a jury unable to choose should convict of the less serious offence; but that, where the penalties were the same, they should decide on the balance of probabilities.[14] McHugh, J. held that the jury should first consider the charge of larceny and that, if they were not satisfied beyond reasonable doubt that the accused was guilty of larceny, as between the Crown and the accused that established for the purpose of the receiving charge that the accused was not the person who stole the property.[15]

51. R. v. Bruce was referred to by Mason, C.J., Deane, Dawson and Toohey, JJ.[16], but only in the course of a survey of the way in which the problem had been dealt with in other jurisdictions. It was not referred to in any of the other judgments. The words "otherwise than in the course of the stealing" were mentioned[17] solely for the purposes of making intelligible a passage their Honours were about to quote from the advice of the Privy Council in Attorney-General (Hong Kong) v. Yip Kai-foon[18] and rejecting the approach their Lordships had taken to those words. It is not the approach taken in Victoria. References were made to English cases and textbooks since the enactment of the Theft Act, but the purpose of doing so was the same as that of referring to the position in New Zealand and Canada and to the Queensland and Western Australian Codes.

54. The Queensland and Western Australian Codes provide that, where stealing and receiving property are charged in the alternative and the jury find specially that the accused either stole the property or received it knowing it to be stolen but are unable to say which of those offences was committed, the court is to enter a conviction for the offence for which the lesser punishment is provided. The majority in Gilson v. R. did not, as it were, import that solution. The common law was held to be different. The references to the Codes were no different from the references to the law in England, Victoria, New Zealand and Canada. They were part of the search for guidance as to how the common law might best be declared.

57. Because of the importance of ground 7 to other cases, we invited written submissions from counsel after the conclusion of oral argument. We were informed by counsel for the respondent that Gilson v. R. has been consistently applied in criminal trials in the County Court.[19] That can only have been in the belief that R. v. Bruce has been impliedly overruled. With respect, that view is mistaken. The High Court was not concerned with the Theft Act provisions.[20] At most, their Honours decided that R. v. Bruce did not represent the common law. R. v. Nguyen[21] and De Bono v. Neilsen[22], to which counsel referred, were not cases where theft (or an offence involving theft) and handling were both charged. In the former, the applicant and another were charged only with armed robbery and the passing reference to Gilson v. R. in Crockett, J.'s extempore judgment[23] is no more than that. In the latter, the only charge was handling. Significantly, it may be thought, Coldrey, J. applied R. v. Bruce in so far as it decided that the words "otherwise than in the course of the stealing" constituted an element of the offence.[24]

60. The circumstances in which this Court will depart from a decision of the Full Court have not been fully articulated, but on any view they must be exceptional.[25] I am prepared to assume, without deciding, that it would be open to us to depart from the decision on this point in R. v. Bruce[26]. The question is whether we should do so, bearing in mind what Young, C.J. said about the construction of these provisions of the Crimes Act in R. v. Bonollo[27]. The authoritative statement of the common law in Gilson v. R. must be loyally accepted, but I am not persuaded that we should re-introduce one of the anomalies of the common law into the statutory scheme that has replaced it in this State.[28] The present position is clearly unsatisfactory[29], but the superiority of the statutory provisions should be preserved by leaving it to Parliament to adopt the remedy suggested by Gray, J.[30] or such other remedy as the legislature thinks fit.[31]

63. I should add that the anomaly lies not so much in the possibility of a conviction where the jury are not satisfied beyond reasonable doubt of every element of the offence, for to say that would be inconsistent with the judgments of the majority and Brennan, J. in Gilson v. R., but in the solution to the problem that the common law adopts. It is sufficient in that regard to refer to what was said by Gray, J. in R. v. Bruce[32] and by Mason, C.J., Deane, Dawson and Toohey, JJ.[33], Brennan, J.[34] and McHugh, J.[35] in Gilson v. R. It is the best that the common law can do, but it is fundamentally flawed.

66. Counsel for the applicant at the trial accepted that the jury should be directed in accordance with Gilson v. R., but it was not submitted that ground 7, as argued, was bound to fail on that account. The applicant was entitled to a direction in accordance with R. v. Bruce. He may still have been convicted of theft, for there was evidence against him in addition to his being found in possession of the clothing, but the direction that was given none the less deprived him of a real chance of acquittal.[36]

69. I would accordingly quash the conviction and direct a re-trial. I am not persuaded that the absence of the exhibits referred to in ground 3 precludes a fair trial, although that will be a matter for the Director to consider. There should be a direction from the trial judge, not just a comment, concerning the disadvantages to which their loss has exposed the accused. None of the other grounds of appeal, nor the application for leave to appeal against sentence, need be considered. Many of those grounds were revealed by the argument to be of little substance. Those which are concerned with the witnesses Farrugia, Tsambikos and Mallia will require a fresh and independent exercise of discretion by the prosecutor at the new trial.

74. In my opinion the application for leave to appeal against conviction should be granted and the appeal allowed for the reasons stated by Callaway, J.A.

79. I have had the considerable advantage of reading the draft reasons of Callaway, J.A. . I agree that, for the reasons given by his Honour, the High Court in Gilson v. R.[37] was not concerned with a situation involving statutory offences under the provisions of the Crimes Act 1958 which are based on the provisions of the English Theft Act 1968. I also agree with his Honour that a direction in accordance with R. v. Bruce[38] should have been given in this case. Thus, ground 7 of the applicant's appeal should succeed and a re-trial should be ordered.

[1] [1991] HCA 24; (1991) 172 C.L.R. 353.

[2] [1988] VicRp 62; [1988] V.R. 579. Special leave to appeal was refused: Bruce v. R. [1987] HCA 40; (1987) 74 A.L.R. 219.

[3] Throughout this judgment I refer to the maximum custodial penalties, disregarding fines that might be imposed together with, or instead of, imprisonment.

[4] I am using the language of the charge, set out in the judgment of Gray, J. at 597. The judge probably spoke of the applicant's being the receiver because the kind of handling that was alleged was dishonest receipt rather than one of the other ways in which handling may be committed.

[5] At 597 per Gray, J. The concurring judgments of Young, C.J. and Crockett, J. are at 580. Each of them was to the effect that they agreed completely with the judgment of Gray, J.

[6] [1982] VicRp 92; [1982] V.R. 916 at 919.

[7] See the references to R. v. Koene in R. v. Bruce at 600 and 601 and the first sentence on 602.

[8] Not to be confused with the summary offence created by s.26(2) of the Summary Offences Act 1966.

[9] I.e. the common law as modified, but not substantially replaced, by statute.

[10] That is apparent from their terms, but see also the second reading speeches in 1973: Hansard, vol. 311 at 3845 (Legislative Assembly) and 4382 (Legislative Council).

[12] I refer to the whole paragraph at 364-365, but especially to the sentence, "But on other occasions, probably more commonly, the offence of receiving may amount to no more than an isolated instance and the theft will be the more serious offence."

[18] [1987] UKPC 4; [1988] A.C. 642.

[19] Counsel for the applicant was, however, aware of one trial where R. v. Bruce was applied instead.

[20] It is erroneous to speculate as to what their Honours would have decided if they had been concerned with the statutory scheme. See also fn. 28 below.

[21] (1992) 60 A.Crim.R. 196.

[22] (1996) 88 A.Crim.R. 46.

[24] At 51. Compare R. v. Cash [1985] Q.B. 801.

[25] See, for example, Farrar v. Western Metropolitan College of TAFE [1998] VSCA 25; [1999] 1 V.R. 224 at 229.

[26] Batt, J.A. must have made the same assumption in R. v. Henderson [1998] VSCA 83; [1999] 1 V.R. 830 at [36].

[27] [1981] VicRp 63; [1981] V.R. 633 at 634 fourth paragraph.

[28] When the question is viewed that way, it is obvious that the High Court did not decide it.

[29] See R. v. Bruce at 601 and Gilson v. R. at 360 and 363.

[31] It might be provided, for example, that, where the jury are satisfied that the accused either stole the property or handled it but are unable to decide which on the criminal standard, they are to return a special verdict of handling and that the maximum penalty in that event is to be the same as for theft. That would avoid a direction about which was the less serious offence in the circumstances and also avoid inviting the jury to apply a different standard of proof in order to choose between theft and handling.

[36] Compare Krakouer v. R. [1998] HCA 43; (1998) 194 C.L.R. 202 at [23]- [24].

[37] [1991] HCA 24; (1991) 172 C.L.R. 353.

[38] [1988] VicRp 62; [1988] V.R. 579.