R v Torney; R v Hentschel [2003] VSCA 36

2. I agree with Eames, J.A. that, for the reasons he has stated, the applications for leave to appeal against conviction should be granted, the appeals allowed, the convictions set aside and new trials ordered.

7. I agree that this appeal should be allowed and a retrial ordered on the handling counts. I do so for the reasons advanced by Eames, J.A. in his judgment.

12. The applicants, Lee Patrick Torney and Thomas Hentschel, were presented for trial in the County Court on a joint presentment on which they were both charged on two counts of burglary (counts 1 and 4), two counts of theft (counts 2 and 5) and two counts of handling stolen goods (counts 3 and 6). They pleaded not guilty but on 15 June 2001 a jury convicted Torney on counts 3 and 6, which were counts of handling, and convicted Hentschel on one count of handling, count 6.

15. On the weekend of 23 to 25 January 1999 two business premises at 19 Gladstone Street, South Melbourne were broken into and goods were stolen. From the premises of Australian Motor Auctions eight second-hand vehicles and three sets of registration plates were stolen. That stolen property was listed in Schedule "A" of the presentment. From Securaway Self-Storage a vast amount of property was stolen, as listed in Schedule "C" to the presentment. The property in Schedule "A" was that to which the allegation of theft (contrary to s.76 of the Crimes Act) in count 2 related. The property in Schedule "C" was that to which the count of theft in count 5 related.

18. Count 3 alleged that the applicants dishonestly handled stolen goods at West Footscray between 23 January and 22 March 1999. The goods handled were those set

out in Schedule "B", and comprised two, only, of the vehicles[1], and two of the registration plates, listed in Schedule "A". The jury were told by the judge, and it was not disputed, that count 3 was an alternative count to count 2, and that if the jury reached a verdict of guilty on count 2 they would not then be required to enter a verdict on count 3. They were similarly told that count 6 was an alternative to count 5.

22. Count 6 was a count of handling stolen property at West Footscray between 23 January and 22 March 1999, the property being that set out in Schedule "D", and which constituted some, only, of the property listed in Schedule "C" for count 5, another theft count. The property in Schedule "D" was located by police at a property 3 Fontein Street, West Footscray, which had been rented by Torney, using a false name.

25. The applicants made formal admissions at trial that the property in Schedules "A" and "C" had been stolen in the period specified and that the value and ownership of the property as stated in those schedules was correct.

28. Torney subsequently pleaded guilty to four unrelated counts of presenting a false document, which were on a separate presentment. Although he was sentenced for those offences at the same time as he was sentenced for the handling offences the other counts may be disregarded for present purposes. Torney admitted 9 previous convictions from 5 court appearances, his convictions including one count of murder and other counts of violence and dishonesty, including armed robbery . Hentschel admitted 139 prior convictions for offences including dishonesty. On 19 June 2001 a judge of the County Court sentenced Torney to a total effective sentence of 5 years with a non-parole period of 4 years and 6 months. Hentschel was sentenced to 4 years with a non-parole period of 3 years.

31. The applicants both seek leave to appeal against conviction and sentence. For reasons that will emerge, it will be unnecessary to consider the applications as to sentence. Although there were a number of grounds of appeal raised in both applications for leave to appeal against conviction only one ground needs to be considered as we are satisfied that the issue raised in that ground is determinative as to the outcome of the applications. On 11 February 2003 the Registrar of the Court of Appeal gave leave to both applicants to raise the following additional ground of appeal:

"The learned trial judge erred in failing to direct the jury that an element of the offence to be proved beyond reasonable doubt was that it was committed by the accused "otherwise than in the course of stealing".

35. The words embraced by the quotation marks are, save for the omission of the word "the", those that appear in s.88(1) of the Crimes Act 1958, the offence of handling stolen goods. That section reads:

"88(1) A person handles stolen good 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 realisation by or for the benefit of another person, or if he arranges to do so."

39. Section 88(2) provides that the offence carries a maximum penalty of Level 4 imprisonment (15 years). The additional ground of appeal focuses attention on the phrase that appears in parenthesis in the sub-section.

42. The evidence led by the Crown constituted a circumstantial case as to all offences. Evidence was led that Hentschel had previously worked for a firm at 19 Gladstone Street, South Melbourne which shared space with Securaway Self-Storage, and that he had commented on the lax security arrangements at that location. There was some evidence that in late 1998, at a time after he had ceased to work there (but at a time when he had friends working there), Hentschel had been seen loitering in the vicinity of 19 Gladstone Street.

45. Evidence disclosed that Torney, using a false name, had leased a residential property at 3 Fontein Street, West Footscray. Two males were seen to use the premises, with a variety of vehicles being seen there. Torney was identified by civilian witnesses as one of the men, but Henschel was not positively identified.

48. Evidence as to the theft disclosed no signs of forced entry but the that the thieves had removed and replaced locks on storage areas at Securaway. The theft of the vehicles had been similarly skilfully performed. There was evidence that in March 1999 Torney had driven and then hidden a vehicle later located by police and identified as one of the stolen vehicles. A witness described a person who accompanied Torney when dealing with another vehicle. The description matched Hentschel.

51. The Crown case primarily relied on police surveillance evidence. On 11 February 1999 police observed both applicants at 3 Fontein Street and Hentschel was seen riding a bicycle from that house. Among the items stolen from Securaway were a number of bicycles. On 17 February 1999 further surveillance of 3 Fontein Street showed Hentschel's presence. On both occasions the two applicants had been using a van which was later found to have stolen goods in it. On 19 March 1999 Torney was arrested and the premises searched at Fontein Street. A considerable amount of the stolen property was located, being that in Schedule "D" and also one of the stolen vehicles was found in the garage. Documents concerning both applicants were also found in the house, as were their fingerprints and other forensic evidence linking them to the house.

54. In his Charge to the jury the judge said that the handling counts 3 and 6 were alternatives to the theft counts 2 and 5, respectively. He told them that they would consider count 2 before count 3 and count 5 before count 6. If they found either accused person guilty of count 2 then no verdict would be required on count 3 and, likewise, if there was a verdict of guilty on count 5 no verdict would be required on count 6. His Honour said that "an accused cannot be both a thief and a receiver of the same goods". If, however, they acquitted on count 2 then they would consider count 3 and, similarly, they would consider count 6 if they had first acquitted on count 5.

57. The judge gave directions as to the law concerning theft and handling and said that handling required proof that the accused had dishonestly received property "which had already been stolen, and knowing that it was stolen at the time of receiving it". After directing the jury on the concept of acting in concert the judge directed the jury on the doctrine of recent possession, telling the jury that the Crown relied on that doctrine to prove that they either stole the property or handled it.

60. The trial judge then gave the following direction:

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

64. That direction followed the terms suggested by the High Court in Gilson v. The Queen[2], which I will later discuss. Almost immediately after he gave this direction the jury were sent to lunch and in their absence the prosecutor submitted that the lesser charge in this case was theft, not handling. His Honour said he would check the maximum penalties over the lunch break and then having found that the maximum penalty for handling was greater than for theft decided, on that basis, that he should redirect the jury. Without objection from defence counsel, his Honour told the jury that he had been wrong in what he said and they should regard theft as the lesser offence.

67. During their deliberations the jury sought further directions. They asked: "If someone knows that goods are stolen, is that different to dishonestly handling those goods?" The judge said it was and that a person could only be guilty of handling "if they were in your possession and you take them into your possession knowing, at the time you do so, that they are stolen". The forewoman said that led to another question, and she asked on behalf of the jury what was the meaning of "possession" and added "Do you have to be there when something is found?", to which she was told, no.

70. Later the jury asked for clarification as to the meaning of the phrase "knowing or believing such goods are stolen", on the handling counts. The judge said that the knowledge that the goods are stolen had to accompany their receipt. His Honour then directed them as to their approach on the alternative counts, stating:

"If you are satisfied that the accused are the burglars and the thieves, then you do not need to consider handling. If you are not satisfied that they are the burglars or the thieves, or if you are fronted with the question that arises when recent possession raises its head, then you do have to consider the difference between theft and handling stolen goods"

"When you come to consider handling you have to consider if they are not the thieves whether they received the goods knowing them to be stolen"

78. His Honour repeated the substance of the earlier direction that if they were satisfied beyond reasonable doubt that the accused were guilty of one or other alternative count but could not decide whether they were guilty of theft or handling, they should choose the lesser offence, and he said that was theft. He asked if that helped them. The jury obviously indicated it did not, because his Honour then attempted to explain the situation again and in the course of his further directions said that handling occurred when the accused "received property which had already been stolen, and knowing that it was stolen".

81. In the absence of the jury counsel for Torney took exception to the direction and submitted, in effect, that by putting the case in terms of a choice between the theft and receiving counts that did not address the situation of the jury not being satisfied that the evidence was sufficient for a conviction on either count. His Honour refused to re-direct, saying that if the jury were in that situation they would acquit on both counts.

84. The directions as to the making of a choice between the lesser of theft and handling (where the jury were satisfied an accused was guilty of one or the other) were in conformity with the decision in Gilson. That decision had been widely but incorrectly understood to have effectively overruled the decision of the Full Court in R. v. Bruce[3] as to the appropriate direction to give in a case where alternative charges of handling are laid with theft charges and where the jury, being satisfied that the accused is guilty of one or other alternative counts, cannot make up its mind as to which count on which to convict.

87. In Gilson the High Court considered the situation at common law for a jury faced with such a dilemma. The Court also reviewed cases in which provisions such as s.88 applied, and in doing so rejected the approach adopted by the Privy Council in A-G (Hong Kong) v. Yip Kai-foon[4] which had dealt with the equivalent section to s.88(1). In that case, like the present case, handling was an alternative count to theft. Thus, like the present case, theft fell for consideration first. The Privy Council said that once the jury acquitted of theft then there was no need for a direction as to the expression "otherwise than in the course of the stealing" because the acquittal on theft made that an irrelevancy. Mason, C.J., Deane, Dawson and Toohey, JJ, in their joint judgment, held that that approach did not deal with the situation where recent possession was relied on and the jury were satisfied that the accused was guilty of one or other offence. In that event, if the jury acquitted on theft it may still consider it was probable that the accused was the thief and if that was their state of mind then unless a direction suggested a way of dealing with that dilemma there might be an acquittal on both counts, a result which their Honours said would bring the law into disrepute.

90. To avoid that result, which the Court noted was an outcome which the decision in Bruce would permit, the High Court held that a direction should be given which required the jury, when faced with that dilemma, to choose the less serious of the alternative counts and to convict on that. The Court proposed that it would be for the trial judge to direct the jury as to which was the less serious offence, which may or may not be the one carrying the lesser maximum penalty.

93. In R. v. Marijancevic[5] the Court of Appeal held that the decision in Gilson applied only to the common law and did not address the situation under the terms of s.88(1), as to which the decision in Bruce remained the law.

96. In Bruce the Full Court had disapproved the practice of directing the jury that if they could not choose as between the two alternatives they should find the accused guilty of the lesser charge. Such a direction, the Court held, denied a chance of acquittal because it failed to address an element in the offence under s.88(1), namely that handling had to be "otherwise than in the course of the stealing". Gray, J. (with whom Young, C.J. and Crockett, J. agreed) addressed the situation where the Crown relied on the doctrine of recent possession in proof of both offences. That principle might not provide proof as to whether the accused was guilty of theft or handling but might prove that he was guilty of one or the other. Gray, J. held that it would be to deny a chance of acquittal if the jury were told that in such a situation they could convict on the lesser charge; they should, instead, be given a direction as to the elements of each offence, he held.

99. As was recognised in Bruce, one result of the jury being directed in the terms which the Court there held to be necessary was that the jury might not be satisfied on either count. Thus, the jury might not be satisfied beyond reasonable doubt that the accused was the thief, and therefore would acquit the accused of theft, but then when they considered the handling charge they might consider it possible, or even likely, that he was the thief and so they could not be satisfied beyond reasonable doubt that as to the handling count he handled "otherwise that in the course of the stealing". In such a situation they should acquit on both counts, the Court held[6].

102. Having regard to the decisions in Bruce and Marijancevic the approach approved by the High Court in Gilson for resolving the dilemma of a jury being unable to make up its mind as between the alternative counts must be taken to not apply to a charge under s.88(1), and the proper approach to be adopted by the trial judge in directing the jury was that stated in Bruce.

105. The judge's charge to the jury in this case failed to provide a full direction as to handling, in particular there being no direction as to the legal effect of the phrase "otherwise than in the course of the stealing". It follows, therefore, that unless such a direction was not relevant to the circumstances of this case the charge failed to comply with the requirement stated in Bruce.

108. Mr McArdle, for the respondent, did not challenge the correctness of Marijancevic, or that the decision in Bruce continued to apply_._ He submitted, however, that properly applied to the facts of this case that decision would not have precluded the return of the guilty verdicts on the handling counts. Counsel for the applicants contended that the full direction was necessary and its omission was sufficient to cause the convictions to be quashed, the applicants having been denied a chance of acquittal.

111. Mr McArdle sought to distinguish this case from Bruce on two grounds. First, he submitted that the jury had not decided the case by the impermissible reasoning of merely choosing the lesser of the two offences (which was the approach which was disapproved in Bruce). Secondly, he submitted, on the facts in this case the handling counts which the jury were satisfied had been proved could only have occurred "otherwise than in the course of the stealing". Thus, no direction was required as to that element.

(a) The jury was not in the dilemma of choosing between two offences

116. In Bruce, the handling counts were alternatives to theft counts. That is the same situation as here. The approach which the Full Court held to be wrong was the trial judge's direction to the jury that if they were unable to choose which offence of the two had been committed - having been satisfied beyond reasonable doubt that the accused was guilty of one or the other - they should convict him of the lesser offence (which the judge directed the jury was the handling count). Having been so directed the jury in Bruce convicted on what they considered to be the lesser counts, the handling counts. The fundamental error, the Full Court held, was that faced with that dilemma the jury had not been directed that they had to be satisfied beyond reasonable doubt that the accused had not handled the goods in the course of stealing them.

119. In this case, however, unlike Bruce, the jury convicted on what they had been told was the more serious count, handling. It therefore follows, so Mr McArdle submitted, that the jury could not have been in the dilemma of being unable to decide which of the two offences was the one committed. If that had been the dilemma then, in accordance with the directions given to them, they would have convicted on theft, as the less serious offence. Thus, they were satisfied beyond reasonable doubt that the accused were handlers, not the thieves of the property, and the defective direction, which was predicated on them being in the dilemma of being unable to choose between the offences, had no bearing on their decision.

122. This contention may be answered immediately. The jury found the accused guilty of handling but did so without the benefit of a direction as to the element "otherwise than in the course of the stealing". Even if they did not reach their conclusion by the process of choosing the lesser offence as between the alternative offences, they had received no guidance as to this element. In Bruce it was held that as an element of the offence the jury must be directed that the accused could not be found guilty unless he had obtained possession otherwise than in the course of the stealing[7]. To fail to give the jury that direction meant that the accused may have been convicted although all jurors had not been satisfied that one of the elements of the offence had been proved. The Court confirmed in Marijancevic[8] that the direction as to the phrase "otherwise than in the course of the stealing" was an essential element of the offence of handling on which a direction had to be given. The jury had not been so directed and there were particular reasons why, in this case, that omission was significant.

125. The Crown relied on recent possession, both as to theft and handling, and it was therefore quite possible that the jury might face the dilemma of not knowing on which of the alternative counts to convict the accused. As I have noted, both in Marijancevic and in Gilson the Courts held that in that situation the jury ought at least to have been directed as to how to proceed. Gilson proposed one approach, which the judge in this case followed, but the Gilson approach is not applicable to a s.88(1) offence and the direction was in error, being contrary to Bruce, but the situation was further aggravated by the terms of the direction which was given. The Judge told the jury that they were to consider theft first, and if they were satisfied that the accused were guilty of theft then they should not go on to consider the alternative count. When he told the jury this the judge thought that the lesser offence was handling. Indeed, in apparent conformity with Gilson, he directed the jury that if they found themselves in the dilemma of being unable to say which offence had been committed, although satisfied beyond reasonable doubt that one or other had, they should convict of handling, as the less serious offence. The fact that handling carried a greater maximum penalty was then drawn to his Honour's attention in the absence of the jury and he redirected them that theft was the less serious offence. That had the potential to create confusion and it is perhaps not surprising that the jury required redirection concerning handling.

128. The jury may well have been puzzled why they would consider the lesser offence first and then only go on to consider the more serious offence if they were not satisfied that the accused was guilty of the former. Alternative offences of handling and theft unfortunately can create many legal difficulties, and one problem in particular, which Gilson both created and did not fully resolve, was how the decision was to be made that one or other count should be treated as the less serious. In this case the judge's decision was based on the maximum penalties, but the jury (not surprisingly) was not told that was the reason. It would not be surprising if they were puzzled why one offence was said to be less serious than the other, and they might well have been disinclined to agree with the judge's view of the matter, especially given the fact that the addresses of counsel had suggested that theft was the more serious count. The prosecutor in this case sought convictions for theft as the preferred Crown outcome.

131. This was a case, therefore, in which the direction which was given may well have created confusion in the minds of the jury. In my opinion, this case can not be relevantly distinguished from Marijancevic. The direction which was given by the judge was in terms understood at the time to be appropriate and it was in conformity with Gilson. Whilst it is difficult to imagine that a jury even if it had been given a direction as required by Bruce would have acquitted the accused on all counts, I can not deny that possibility. Nor can the possibility be denied that the jury may have convicted on the less serious counts of theft rather than the handling counts. The applicants have therefore been denied a real chance of acquittal and their convictions should be quashed.

134. That conclusion is sufficient to dispose of this appeal.

137. I will briefly mention the second argument advanced by Mr McArdle because it has relevance to the question whether the Court should order a re-trial of the applicants.

(b) The handling could not have been in the course of the stealing.

141. Mr McArdle submitted that even if this was a case where a direction might appropriately have been given as to the omitted element of the offence of handling - i.e. "otherwise than in the course of the stealing" - its omission did not matter because this was not a case where it was open to conclude that the handling might have occurred in the course of the stealing. That was so, he submitted, because in this case the offences of handling and stealing were quite distinct.

144. The theft counts, counts 2 and 5, alleged that the thefts took place between 23 January and 25 January 1999 at South Melbourne. The handling counts, counts 3 and 6, alleged the offences occurred between 23 January and 22 March 1999 at West Footscray. The items said to have been handled were portion only of the items to which the theft counts related. It followed, so Mr McArdle submitted, that the handling must have been "otherwise than in the course of the stealing". Thus, no direction was necessary as to that element.

147. There may well be cases under this statute where a direction as to the phrase "otherwise than in the course of the stealing" was not required by virtue of the fact that on the evidence in the case no issue was raised which necessitated that direction. Such a conclusion was reached by the Full Court in R. v. Koene[9]. In Bruce[10] Gray, J. also acknowledged that possibility, when discussing the decision in R. v. Cash[11], a case where it had been proved that the goods were stolen by someone other than the accused and where the trial judge refused to give a direction as to the words in parenthesis in the equivalent UK section. The UK Court of Appeal held that on the facts of that case there was no issue which required the direction be given concerning "otherwise than in the course of the stealing".

150. Mr McArdle submitted that this was an instance where the direction was not required because the handling must have been "otherwise than in the course of the stealing", due to the separation of time and place which the two alternative counts asserted. Counsel for the applicants, on the other hand, submit that in reality it was not open to a jury to have convicted on handling because it was not possible to exclude the reasonable possibility that the handling was in the course of the stealing.

153. The resolution of those competing contentions would turn on the meaning of the critical phrase "otherwise than in the course of the stealing". Section 88(1) creates an offence of handling in terms which derive from the English Theft Act 1968. The history of the section is discussed by Callaway, J.A. in Marijanevic[12]. A similar provision which applied in Hong Kong was considered by the Privy Council in Attorney-General (Hong Kong) v. Yip Kai-foon[13]. The phrase was introduced into the section in order to ensure that instances of theft did not, at the same time, constitute handling[14], and was intended to keep the incidence of handling charges within reasonable bounds[15].

156. Theft is a finite act which has a beginning and end and - if it is a relevant issue - it is a question of fact for a jury to determine when the theft came to an end[16]. Mr McArdle contended that "the stealing" in this case ceased when the thieves were no longer "on the job"[17], and that thereafter even if the applicants had been the thieves then any handling after the theft was capable of constituting the offence of handling. The notion that thieves may, merely by retaining possession of the stolen property, be guilty of handling that property is at odds with some statements of the law[18]. In Archbold, for example, it is stated that the jury could only convict of handling if was satisfied that the accused did not `acquire" the goods as a thief[19]. There may be circumstances, however, where a person who in fact stole goods might be convicted as a handler of those goods, but a person could not be convicted of both theft and handling when the handling occurs in the course of the theft[20]. It may be that such an outcome would be limited to situations where the thief had lost possession to another and then, having regained it, handled it anew. Although counsel provided further written submissions on these questions after the matter had arisen in argument, the legal issue was not the subject of detailed argument and many of the authorities to which I have made brief mention were not addressed by counsel.

159. It is not necessary or appropriate to explore further the contention that as a matter of law the handling verdicts could be justified on the basis that the theft, even if committed by the applicants, was at an end when the handling occurred because in any event, even if a guilty verdict was open on that basis as a matter of law resolution of the question would depend on the facts of the case and the manner in which the trial was prosecuted.[21]

162. In this case the trial was conducted on an erroneous assumption of the law as a result of which the evidence was presented and assessed on a false understanding of the relevant issues. Indeed, in both his opening and closing addresses the prosecutor at trial invited the jury to conclude that the applicants should be convicted of the counts of theft, and that they would not need to turn to the alternative counts of handling. To support his contention that theft was the appropriate verdict the prosecutor placed stress on circumstantial evidence connecting the applicants to the scene of the theft before the thefts took place, for example, Hentschel's familiarity with the businesses which were robbed and his loitering near the scene of the robberies some months earlier. It was only in the alternative, that is, if they had a doubt as to that, that he urged they convict of handling. It is therefore completely artificial to endeavour to assess the evidence and the appropriateness of the jury's verdicts, and to seek to support those verdicts, by reference to the concept of the offence of handling which Mr McArdle now articulates. These are questions which can be left for another day, to be assessed in the light of evidence presented at that time.

165. In this trial the Crown relied on recent possession as to both theft and handling (albeit, as alternative counts) but it may be that the jury did not ultimately rely upon the doctrine of recent possession in reaching its decision. It's members might not have found themselves in the dilemma of choosing between two equally compelling Crown cases as to handling and theft. It can not now be certain how the jury proceeded in its analysis of the counts. Given that the first several of the dates between which the offences were alleged to have occurred were the same for the theft and handling counts it was possible that the jury thought the handling occurred on the date of the theft, or in the course of the theft. The fact that the dates of the offences allowed that the handling may have occurred weeks or even months after the theft does not eliminate that possibility.

168. Neither during the trial nor in the judge's charge to the jury was anything made of the fact that the alternative offences were said to have been committed at different places and at different times (substantially). Had any significance been attached to what is now said to be the clear separation as to dates and locations of the alternative offences then one would have expected that to be addressed when the jury were given directions about their approach to the situation should they be unsure which of the alternative offences was committed, albeit satisfied one was.

171. It follows, therefore, that even if it was open to the jury to be satisfied beyond reasonable doubt that the handling was otherwise than in the course of the stealing a direction as to that element was essential and it is now futile to explore whether, had they been, verdicts of guilty might have been supported on the basis of liability for which Mr McArdle now contends.

175. Counsel for the applicants submitted that verdicts of acquittal should be entered. They submitted that having regard to the way the case was conducted the Crown could not then, and can not now, exclude as a reasonable hypothesis that the handling was "otherwise than in the course of the stealing". It follows, they submitted, that because there remains an hypothesis consistent with innocence which was open on the evidence and could not be excluded by a reasonable jury a conviction could not be sustained[22].

178. In this case the Crown presented theft and handling as alternative counts. It would be an injustice to allow convictions as to both, but that is not what is now sought. The verdict on the theft charge means that the accused could not be presented again on the counts of theft, but were there a re-trial confined to the count of handling then the evidence presented on the re-trial might support guilty verdicts as to handling without such verdicts being in conflict with the acquittals on the counts of theft.

181. Mr McArdle suggested that having regard to the Crown's present understanding of the law the Crown on a re-trial might seek to amend the presentment to allege handling which occurred at a time more proximate to the arrest of the applicants and removed from the weekend during which the property was stolen, and the focus of evidence might accordingly be different to that of the first trial. Counsel for the applicants responded that that would constitute a fundamental alteration to the Crown case, which ought not be permitted on a re-trial. Were this court to order a re-trial then, they submitted, an application might be made to the judge on the re-trial that the prosecution be stayed having regard to the way in which the Crown proceeded on the first trial. Any verdict of guilty so obtained would be unsafe and unsatisfactory, counsel submitted.

184. I express no view as to whether the Crown ought be permitted to present the case in a way different to that in the first trial. The Court has a wide discretion as to whether or not it should order a re-trial after quashing a conviction in such circumstances. As a matter of fairness the court would not generally order a re-trial where the Crown would then bring a quite different case to that presented at the first trial[23] but I am not persuaded that were the Crown to present the case as Mr McArdle suggested it might that that would constitute a quite different case to that first presented. The evidence would be likely to remain eth same but to receive different emphasis by counsel on both sides. Nor do I consider that to do so would necessarily be unfair or contrary to the interests of justice, having regard to the fact that, for entirely understandable reasons, the first trial was conducted under a mutual misapprehension as to the applicable law. In my view, it is reasonable that the Crown be given the opportunity to consider whether a re-trial ought be pursued, and in what manner.

187. I am, therefore, not persuaded that verdicts of acquittal ought be entered. The appropriate order is that the convictions be quashed and re-trials be ordered on the counts of handling. A re-trial rather than acquittal was the outcome in Marijancevic and it is appropriate here too. To order acquittals would amount to a judicial determination otherwise than upon trial by jury and in circumstances where it has not been held that the evidence must lead to an acquittal[24].

191. I conclude by noting that in both Bruce[25] in 1986 and Marijencevic[26] in 2001 the Court noted the unsatisfactory state of the law with respect to the application of s.88(1), which was produced by the expression "otherwise than in the course of the stealing". The Court noted that as matters stand, without legislative reform, the situation might well arise that a person whom a jury was satisfied beyond reasonable doubt was guilty of either theft or handling might be acquitted on both counts. In their joint judgment in Gilson[27] Mason, C.J. Deane, Dawson and Toohey, J.J. said of such an outcome: "The law must surely be brought into disrepute if it is so bereft of answers than an accused who is clearly guilty of one offence or the other is allowed to escape conviction altogether". As this court warned on the two earlier occasions, in this State the possibility of such an outcome arises by virtue of the terms of s.88(1) and can only be eliminated by legislative reform.

[1] The other vehicles were not recovered.

[2] [1991] HCA 24; (1991) 172 C.L.R. 353.

[3] [1988] VicRp 62; [1988] V.R. 579.

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

[5] [2001] VSCA 188; (2001) 3 V.R. 611.

[9] [1982] VicRp 92; [1982] V.R. 916, at 920.

[11] (1985) 80 Cr.App.R 314.

[13] [1987] UKPC 4; [1988] A.C. 642.

[14] R v Bloxham [1983] A.C. 109, at 115, per Lord Bridge.

[15] See "Property Offences", by C.R.Williams, 3rd Ed, (1999), at 300; "The Law of Theft", by Sir John Smith, 8th Ed, (1997), at 229, [13-33].

[16] R. v Atakpu and Abrahams [1994] B.B. 69, at 79, per Ward, J. for the Court of Appeal; R v Maksymowicz Unreported decision of Court of Criminal Appeal (Murray, O'Bryan and Vincent, JJ.) 28 August 1986; "Property Offences", by C.R. Williams, supra, at 300-301.

[17] See R V Atakpu and Abrahams, supra, at 80; Williams, "Property Offences", at 301.

[18] See, for example, R v Pitham & Hehl (1997) 65 Cr.App.R. 45, at 48, per Lawton, L.J.

[19] Archbold, "Criminal Pleading Evidence and Practice", (1994) vol 2, par, 21-229g.

[20] See R. v. Dolan (1976) 62 Cr.App.R. 36, at 39 (Scarman, L.J., Ormrod, L.J., Swanwick, J.); see, too, Archbold, 1994, Vol 2, 21-229c; Smith "The Law of Theft" 8th Ed, at p.232-233, par 13-40.

[22] Knight v. The Queen [1992] HCA 56; (1992) 175 C.L.R. 495, at 502-3, 509; Shephard v. The Queen [1990] HCA 56; (1990) 170 C.L.R. 573, at 578.

[23] See Parker v The Queen [1997] HCA 15; (1997) 186 C.L.R 494, at 519-52, per Dawson, Toohey and McHugh, J.J.

[24] See Dyers v. The Queen (2002) 76 ALJR 1552, at 1557.