R v Trifilo [2009] VSCA 194

2 In this case the trial judge intervened to re-cast the manner in which the prosecution presented its case during the course of the trial. It is unnecessary to refer to previous occasions when this court has emphasised the dangers of such a course. A real risk of a miscarriage of justice is created when a trial judge, without the consent of the parties, formulates a different way in which the prosecution puts its case. It will ordinarily mean that one or more of the parties in the trial will then have to present or respond to a different case to the one that was intended or anticipated. In the unusual circumstances of this case, it was the prosecution who was irreparably prejudiced as a consequence of the trial judge's unwarranted intervention.

3 The learned prosecutor had made very clear to the trial judge that the prosecution did not rely upon the doctrine of recent possession. There was ample evidence by which the prosecution could have established that the accused had appropriated the vehicle, that it was property which belonged to another, that he intended to permanently deprive that person of his property and that he acted dishonestly, within the meaning of s 72 and s 73 of the Crimes Act 1958.[1] Senior counsel for the Director correctly submitted on the appeal, that there was no need for the prosecution to rely upon the doctrine of recent possession or to prove that the vehicle had been stolen from Patrick's storage yards. But the trial judge over-rode the view of the prosecutor and directed the jury that the Crown relied upon the doctrine to establish the applicant's guilt. The doctrine required proof that the vehicle was recently stolen.

4 The doctrine of recent possession involves a process of inferential reasoning as to guilt. It identifies the prominent inference that may arise from circumstantial evidence, where it is established that the accused is in possession of recently stolen property and offers no explanation or one which the jury is able to reject beyond reasonable doubt.[2] But there must be proof that the goods were recently stolen before an inference can possibly arise.[3] That proof may be direct, where ownership and the actual theft of the goods is established or it may be inferred from the nature of the goods and the circumstances of the accused's possession. Where proof is by circumstantial evidence, neither the owner nor the precise circumstances in which the goods were stolen may be known.

5 As Bongiorno JA shows, the prosecution sought to prove ownership of the vehicle and its theft by direct evidence. It did so by inadmissible means which was the subject of proper objection by defence counsel. We are bound to say that the evidence which the trial judge permitted, over objection, was the most obvious hearsay. First as to the theft of the vehicle, an employee of GMH was permitted to give evidence that he had been told by someone from Patrick's, to whom the vehicle had been entrusted for safe storage, that the vehicle was one of three that had been stolen by being driven through a perimeter fence. No witness from Patrick's was called to testify as to that fact. Secondly, as to ownership of the vehicle, the witness was permitted to say that the VIN number on a vehicle in a photograph which had already been tendered in the trial by one of the investigating police was that of a vehicle owned by GMH. To do so he must have relied upon his employer's business records to testify that the vehicle belonged to his employer. The trial judge may have regarded the repeated objections raised to this evidence as technical and unmeritorious but that did not relieve him from upholding what was a valid objection so as to ensure that the trial was conducted according to law.

6 Thus there was no direct evidence which sufficiently established ownership of the vehicle or its actual theft. Although there was circumstantial evidence which may well have been sufficient to establish that the vehicle was recently stolen, the judge referred only to the direct - inadmissible - evidence as establishing that the vehicle had been stolen for the purpose of then applying the doctrine. The jury were not directed to consider the circumstantial evidence. The risk was high that the jury acted upon the inadmissible evidence so as to enable them to apply the doctrine and conclude that the applicant was guilty. Once the jury accepted the improperly admitted evidence of ownership and the circumstances of the theft, it was but a short step for them to reject the inconsistent and implausible accounts of the applicant. The judge's imposition of the doctrine as the mode of proof of the applicant's guilt and the admission of the hearsay evidence to establish a fact essential to the operation of the doctrine gave rise to a miscarriage of justice.

7 The Crown did not seek to rely upon the proviso to s 568 of the Crimes Act 1958. In any event we do not think it is an appropriate case for its application. Firstly, because of the use of the doctrine, the jury were never asked to separately consider whether each of the elements[4] of the offence had been proved. Secondly, we can place little weight on the jury's rejection of the applicant's sworn account or the jury verdict as they may have been the result of impermissible reasoning consequential upon the irregularity the subject of complaint. There are credit issues which are relevant in assessing the consequences of the irregularity, which we think precludes us from assessing the proceeding wholly or substantially on the record.[5]

8 We also agree with Bongiorno JA for the reasons he gives that the appeal against sentence should be dismissed.

9 As the conviction must be set aside, the preferable course would ordinarily be to direct a new trial as there was admissible evidence given at the original trial which

was sufficiently cogent to justify a conviction.[6] But taking account of the fact that the applicant has already completed serving the minimum portion of his sentence, and that in accordance with the usual practice, were the applicant to have been convicted on a retrial, the sentencing judge would not impose a sentence greater than that previously imposed, we consider that a verdict of acquittal should be entered.

10 On 14 August 2008, Giuseppe Trifilo, a 35 year-old man, was sentenced to three years' imprisonment with a non-parole period of two years after being found guilty by a County Court jury of one count of theft, one count of being in possession of a firearm on which the serial number had been defaced and two counts of being in possession of a drug of dependence. He was convicted and sentenced to two and a half years' imprisonment on the count of theft and one year on the count of possession of the firearm, and fined a total of three hundred dollars in respect of the drug possession offences. He now appeals to this Court against his conviction on the count of theft and against his sentence in respect of that count and the weapons count.

11 The Crown case against the applicant on the count of theft was circumstantial. He was arrested in the early hours of 29 May 2007 in the vicinity of a near-new red Holden utility parked in the car park of a McDonalds outlet in Delahey, a suburb to the north-west of Melbourne. The vehicle had stolen number plates and no registration sticker.

12 Shortly before he was arrested he attempted to dispose of part of the ignition key to the vehicle, the broken remainder of which was found in the ignition lock. He

also had a key which fitted the lock on the glove-box of the vehicle in his wallet. There was also evidence that the applicant had been seen driving that vehicle or one very similar to it in Werribee a few days earlier by a Corrections officer who was his parole supervisor. This evidence and its surrounding circumstances constituted evidence upon which a jury could have found that the applicant was in possession of the relevant vehicle on each of the occasions referred to.

13 It was the Crown case that the relevant vehicle was the property of General Motors Holden (GMH) who had bailed it to a company known as Patricks Auto Care at Laverton North for safekeeping, it being one of a number of vehicles transferred from the GMH Adelaide plant when that plant began manufacturing a new model. This evidence was provided by a Mr David Neal who was a logistics co-ordinator employed by GMH. In the course of his evidence Mr Neal was shown a photograph of the windscreen of the vehicle. The photograph clearly showed a vehicle identification number (VIN) in the bottom right-hand corner. That number was 6G12K42H86L907691. The photograph was No 6 in a bundle of photographs of various items relevant to the case, including the relevant vehicle, which had been admitted by consent.

14 It would have been an appropriate inference from the admission of these photographs that the applicant conceded that the VIN number on photograph No 6 was the VIN number on the relevant vehicle. But that did not prove that the vehicle belonged to GMH. It was, accordingly, necessary for the Crown to identify the vehicle as belonging to GMH by tendering admissible evidence. The way in which the prosecutor attempted to prove this fact was to show Mr Neal the photograph of the vehicle's VIN and to ask him whether that vehicle belonged to GMH. Not surprisingly, counsel for the applicant objected to the prosecutor leading the witness in this way as the issue of whether the vehicle had, in fact, been stolen was an issue in the trial, as counsel made clear. His objection, articulated on two occasions, extended to the Crown seeking to prove that the vehicle was the property of GMH by other than admissible evidence: that is to say by evidence elicited other than in accordance with the rules of evidence. Counsel's objection was disallowed.

15 Counsel's objection to the prosecutor leading Mr Neal in the way he did should have been upheld. Placing photograph No 6 in Mr Neal's hands before asking him a question about the vehicle depicted in it was objectionable because it suggested the answer to the question about to be asked. It was designed to and - after counsel's objections were overruled - did elicit a positive response. That response was, as Mr Neal's subsequent evidence showed, based upon an interpretation by him of certain GMH records that were not produced. Had those records been produced as the best evidence of GMH's ownership of the relevant vehicle, the jury could have ascertained for itself that the VIN in the photograph was recorded in the GMH records as having been sent from Adelaide to Patricks in Melbourne. This is how the Crown ought to have proved this part of its case. Mr Neal's evidence as to GMH's ownership of the relevant vehicle should not have been permitted to be led in the way it was before the jury. Thus there was strictly no admissible evidence on this issue.

16 Although counsel for the applicant had made his client's position clear that the theft of the vehicle was in issue, after having Mr Neal identify the vehicle as belonging to GMH by reference to photograph No 6, the prosecutor proceeded to elicit a number of answers from him designed to prove that it had been stolen. However, those answers provided no admissible evidence. Mr Neal merely recounted the stocktaking practices of GMH (or perhaps of Patricks - the distinction is not clear) and then proceeded to tell the jury what someone at Patricks had told him as to how and when the vehicle had been stolen from its yard at Laverton North.

17 In cross-examination, counsel for the applicant demonstrated that all or most of Mr Neal's evidence was hearsay. Apart, perhaps, from sketchy evidence of the system used by GMH to track vehicles it had manufactured and not yet sold, none of Mr Neal's evidence should have been permitted to go to the jury. If the car was, in fact, stolen from Patricks, that conclusion could only be arrived at by the jury's acceptance of a number of pieces of that hearsay: that there was a scanning system in place at Patricks, that the scanning system had shown that the relevant vehicle had been scanned in and not scanned out, that there was a hole in a perimeter fence at Patricks consistent with a vehicle having been removed and, possibly, that the vehicle was ultimately picked up from the police at Keilor Downs Police Station.

18 The Crown argued in this Court that, because the applicant's counsel had himself elicited hearsay from Mr Neal in cross-examination which was to the effect that three cars were stolen from Patricks, the applicant cannot now object to reliance upon that hearsay by the Crown. It said, in effect, that he waived any right to object to proof of the Crown case by hearsay.

19 There are a number of answers to this submission. First, the hearsay elicited by counsel for the applicant does not prove the theft of the relevant vehicle. It does not connect the theft at Patricks to the relevant vehicle. Secondly, hearsay elicited in cross-examination is no more admissible than hearsay elicited in examination-in-chief: Beare v Garrod,[7] Sharp v Loddington Ironstone Co Ltd.[8] It does not provide evidence of the fact asserted. It is trite to observe, as Lawton LJ did in R v Hennessey:[9] 'Witnesses, whether for the prosecution or the defence, are required to testify to what they saw, heard, smelt or felt and not to what they know because of what they have been told.'

20 Thirdly, in the circumstances of this case, where counsel's objection to the initial leading question and his subsequently having made it clear that the fact of the theft having occurred was in issue, it could not be said, on a fair consideration of Mr Neal's evidence as elicited by either counsel, that the applicant had at any time waived any right he had to strict proof of the allegation against him. Even if defence counsel could have been more assertive in the face of the prosecutor's questions of Mr Neal, his failure in this regard, if it be a failure, should not disentitle his client to being convicted only on admissible evidence.

21 It follows that if, to sustain a conviction, the Crown had to prove that the vehicle in question was stolen from Patricks, then the conviction of the applicant on count 1 of the presentment cannot be permitted to stand.

22 Although his opening of this case to the jury was not transcribed, it appears that the prosecutor did not intend to rely upon the so-called doctrine of recent possession in furtherance of the Crown's proof of count 1. In discussion with the trial judge before the case was opened he referred to Stein v Henshall[10] in which Lush J had expounded the meaning of s 73(4) of the Crimes Act 1958. His Honour held in that case that s 73(4) did not require the Crown to prove that an appropriation of property for the purposes of the definition of stealing in s 72(1) involved proving an intention in the putative thief to exclude possession in all others. It appears that the prosecutor intended to put the case here on the basis that the applicant used the vehicle for his own purposes and that to do so was to exercise one of the rights of ownership whether he had the permission of someone else, such as an original thief, or not. Thus, on the Crown case, the applicant appropriated the car within the meaning of s 72(1) of the Act. The Crown had no need to rely upon the evidentiary assistance it might have derived from any inference drawn from the applicant having been found in possession of the relevant vehicle.

23 Notwithstanding the prosecutor's statement of his intention with respect to recent possession, in the course of argument by defence counsel on an application for a directed acquittal on count 1, the trial judge said that it was only by reliance upon the doctrine of recent possession that 'they can get home'. His Honour rejected defence counsel's application for a directed verdict. Although he gave no reasons for doing so, it is a fair inference that he considered the Crown's case as to the theft of the vehicle from Patricks to be viable, perhaps even strong.

24 In his directions to the jury the trial judge defined theft in accordance with the appropriate statutory provisions and then told the jury that the vehicle in question was the property of GMH and that this fact was uncontested. He said that there was no evidence that the applicant was involved in the removal of the vehicle from the car yard, but referred to that removal as if the fact of it was not in dispute. He proceeded then to direct the jury in conventional terms as to the relevance of a person being found in possession of property recently stolen to a count of theft of that property. He reminded the jury that in his record of interview the accused denied all knowledge of the vehicle and denied any association at all with it, and that if the jury were satisfied that that explanation was a lie then they could convict on the basis of the accused's recent possession of the vehicle. He said they should also consider the accused's explanation in his evidence which included a denial that he was at any time in possession of the vehicle. Again, his Honour emphasised that to use that explanation against the accused the jury would need to be satisfied beyond reasonable doubt that it was false.

25 It would have been sufficient to sustain a conviction on count 1 for the Crown to have simply proved the elements of theft as they are defined in s 72(1) of the Crimes Act. If it proved that the vehicle belonged to GMH, that the applicant drove it as he did and that he subsequently acted and spoke in a manner which would entitle the jury to infer a consciousness of guilt that would have been sufficient. The mental element of an intention to permanently deprive the true owner of the vehicle of their proprietary rights in the vehicle would have been supplied by s 72(14)(a) of the Act. That is how the Crown put the case in this Court. By introducing the so-called doctrine of recent possession as the only path by which the jury might reason to a conviction the trial judge (and perhaps the prosecutor in his final address) made it incumbent upon the Crown to prove that the vehicle had been stolen from Patricks shortly before it was found in the applicant's possession. It is an essential ingredient of the factual basis for an inference of theft based on recent possession that the chattel possessed was stolen property: R v Cross.[11]

26 But proof of any removal of the motor vehicle from its lawful possessor, Patricks, in this case rested upon inadmissible hearsay which ought not to have been put before the jury. Although the jury could have convicted the applicant without recourse to the concept of recent possession, the fact that the trial judge directed the jury that it was the only way of reasoning to a guilty verdict meant that, in the circumstances the verdict of guilty on count 1 was tainted. The trial judge's direction on recent possession accepted hearsay as admissible evidence which the jury could consider. The applicant's conviction on count 1 on the presentment on which he was tried should not be permitted to stand.

27 The applicant did not press his application for leave to appeal against sentence in respect of the firearms count, the only other count upon which he was imprisoned. The upholding of his appeal against conviction on count 1 will result in his total effective sentence being reduced to imprisonment for one year. Having regard to his antecedents and, in particular, to his numerous and serious prior convictions, such sentence could not possibly be said to be manifestly excessive.

28 The applicant's application for leave to appeal against sentence should be refused.

29 Having regard to the fact that as at the date he was sentenced (14 August 2008) the applicant had served a period of 355 days of pre-sentence detention and has since served a further period of just over one year in respect of a total effective sentence of three years with a two year minimum, it would be inappropriate for the applicant to be tried again in respect of count 1 even if an order for a re-trial on that count was an otherwise appropriate disposition. In the circumstances the applicant's application for leave to appeal against his conviction on count 1 should be granted, the appeal should be upheld, his conviction on count 1 should be quashed and in lieu thereof there should be a judgment and verdict of acquittal entered in respect of that count. The applicant's application for leave to appeal against his sentence should be refused.

[2] Smith J The Law of Theft, 8th ed, 13-44.

[3] R v Langmead [1864] EngR 47; (1864) Le & Ca. 427, 169 ER 1459 (Blackburn J); Trainer v The King [1906] HCA 50; (1906) 4 CLR 126; C R Williams Property Offences, 3rd Ed, p 281.

[4] See [2].

[5] R v KDY [2008] VSCA 104; (2008) 185 A Crim R 270, [38]-[40]; R v Ciantar; DPP v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 60 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).

[6] C Corns 'The Discretion of a Court of Appeal to Order a New Trial or a Verdict of Acquittal' (2006) 30 Crim LJ 343, 34; DPP (Nauru) v Fowler [1984] HCA 48; (1984) 55 ALR 175.

[7] (1915) 85 LJKB 717.

[8] (1924) 132 LT 229.

[9] (1978) 68 Cr App R 419, 425.

[10] [1976] VicRp 62; [1976] VR 612.

[11] (1995) 84 A Crim R 242, 248 (Kirby P).