4A2F, &8 CATCHNORDS of similar fact evidence - joinder of counts - Crimes Act 1900 (NSW) as amended in its application to the EY pital Territory, ss.117, 189A, 365(2) 36¢1) Wales, £1894] Ac FEDERAL COURT OF AUSTRALIA PRINC}AL REGISTRY IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY No. ACT G.61 of 1982 ) ). AUSTRALIAN CAPITAL TERRITORY ) ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : GLORIA JEANETTE YATES Appellant AND : THE QUEEN Respondent ORDER JUDGES MAKING ORDER : Davies, J Lockhart, J Kelly, 7 DATE OF ORDER 30 June 1983 ry WHERE MADE 3 Canberra 1. The appeal be dismissed. THE COURT ORDERS THAT 2. The matter be remitted to the Supreme Court of the Australian Capital Territory for execution of its judgment. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ae ee at No. ACT G.61 of 1982 wee ee we ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY QUEEN ra Imeawene ct Dp i) wy * ~d ie) 2. .. that GLORIA JEANETTE YATES between the nineteenth day of May 1980 and the eighteenth day of Octobe 1989 at Canberra in the Australian Capital Territory, did steal two typewriters, the property of Waltons Stores Limited. .. that GLORIA JEANETTE VATES between of August 1980 .and the first day of S$ at Canberra in the Australian Capital Territory, did steal two bottles of liqueur and three bottles of whisky, the property of Robessierre Pty Ltd trading as Farmer Brothers. -..that GLORIA JEANETTE YATES on or about the twenty fourth day of September 1980 at Canberra in the Australian Capital Territory, did steal one carton of cigarettes, the property ef G.S. Enterprises Pty Limited trading as the G.R.0.G. shoe of October i ars tober 2929 at Canberra did steal Bookselley S 3 : e year Australian Cc tai Ter football jumper, the pro Urading as Mennedy's Schoo ct an Cay assault Coll then b Police, oe that of Oct Capital Webster member Australian Federal executicn duty. .. that NEDTE YATES on the eighteenth day GE Oct at Canberra in the Australian Capital lawful excuse, did have in her certain property, to wit, one os; . Py . . ef 3. portabie television set, the property of J.B. Youngs Limited, which said property had before then been stolen outside the Australian Capital Territory, to wit, at Queanbeyan in the State of New South Wales, she the said GLORTA JEANETTE VATES at the time when she had in her possession the said property well knowing the same to have been stolen. All the counts were heard together at the one trial. The appellant was found not guilty on the fifth and seventh counts but guilty on each of the others. This appeal is brought on two orincipal grounds, the first being that each of the charges shoula have been tried separately (save for the two assault properly tried together) and ct by oO wu pe) fel ofey ion o .a ct by Fe ct Ooaa2 og a oO c te] rr . wb os Qu. D = ie) i) G F similar facts ch was prejudicial to the determination of that the similar fact evidence arose from the jfoinder the one trial but there was in addition similar previously occurred In addition to grounds of appeal related to specific items of evidence which we shall later mention. A ground of appeal that the sentence was too severe The principles to he applied with respect to the admission of similar fact evidence were considered recently by the Full" 4. : High Court in Perry v The Queen, (1982) 44 ALR 449, It is sufficient that we set out the following statement in the reasons of Gibbs CJ, at pp.452-454 : "The principles governing the admissibility of evidence of lag facts in criminal cases were quite recentiy restated v > Queen (1978) 140 CER 108, at pe.il6- They derive from the well known statement of Lord Herschell LC in Makin v al for New South Wales £1894] AC 57 The prosecution cannot adduce evidence tending to show that the accused has been quilty cf criminal acts other than thease 4, with which h Vv Chat he had crime of a i ert of person eged. On nt oin some other way, H i mi Lie yen 'though it reveals that the would, the nee would a in) ry Be@Vyrcty ww tMHowansd eT be je dees no more t E ercise a discretion, and 1 effect of the evidence Many £19753 AC 421, tions £1952] AC name only a few, iples laid down is) w South Wales are dye must decide asa vy Attorney- ve. A tyial j w whether the enly if he decides that ib answers the missibility that he need consider whether pe Ase NRE o8 PMS HER ERR LIE LTE! 1 5. e should exclude it in the exercise of his discretion. The importance of the distinction etween the two steps which the trial judge is equired to take can be seen if the case goes on appeal, since the grounds on which a court of criminal appeal will intervene will be different depending on whether inadmissible evidence has been eceived or there is a challenge to the exercise of the judge's discretion. = @ by ns c c It is true that in deciding whether the evidence is admissible, questions of decree arise and that the dgment to be nade is to some extent iscretionary. It was said i ci Py i i aring i gqments t re agree pectfully with herforce evi @ai strong degree of ed at 9.444; 3 4 in Re 4 Co 7s Pts cr a ry er sed sor with he s cn whe crime there Lon Llity sho 4 proba al £ to b 5 cher ¥ other circum first place, as = nave ight piace too much weight used had a criminal tendency e of this kind ill often doubtful questions as to in fact been guilty of and may distract the t jury rom the vital issues in ca therefore not enough that the fen should be only technically relevant i than as showing a propensity); it must ly material; it st have strong probati There are various ways in which e facts may tend to show, ot propensity, than the accused com 6. which forms the subject of the charge. Some examples may be given, although they are of course not intended to be exhaustive. Prior acts of sexual intercourse may establish a relationship whose existence is relevant to the question whether a4 the accused committed incest : R. vy Bail £19113 AC a7, The fact that a person engages in a series of acts which form part of a continuous business operation, and which would ordinaril be accompanied by the payment of money, may be relevant to show that money was paid ona earticular occasion : Martin v Osborne (1936) 55 : CLR 367. The fact that an accused has, in the past, committed crimes ina particular, unusual, i manner may be relevant to that he was the ' person who committed the question, when that was committed in tt characteristic manney oo: Reg. the ne eeoved and t £ 36 any stage of a tr t a person accuse emb ed in his defen: arged 1 more than one o' ment, cr that for any other bo direct that the perso utely for one or more offen ctment, tne court may order count or counts of such ! indict Necessarily, one of the factors taken into account in the 7. exercise of this discretion is whether the evidence given with respect to one offence is admissible with respect to the other offences charged and, not, whether the joinder of the counts in the one trial will unduly prejudice the fair trial of any We turn first to the similar fact evidence which was not the subject of counts 1 to 10, or indeed of any charge laid against the appellant. A witness, Mr T.A. Kingham, said that, close on five years ago, he had been employed in Woolworths in Saw the apvellant in the store. she to ee t ° Fo ocid ne cu Can we clarify that. s aid she?---That is right. Do ySu recall what they were?---No, I do not. Generally - what type of groceries. And some cigarettes?~--That is right, a carton of cigarettes. get the She : one carton of cigare gqroce what did the do?---She left the hen pricr te cl ng time, when I was up the front doors of the store, the @ the store again. She n picked up her carton of cigarettes from the front checkout area and mentioned to the checkout operator at the time that she would pay for those at the back of 3. the store - the checkout operator at the back. When she got to the back checkouts, she spoke to the checkout operator, she left the store -~-- Were you able to near what she said?---No, I did not. She left the store without paying for the cigarettes and after she left the store, I went and had a talk to the checkout operator concerned. When she left the store, did you see anything in her hand apart from the cigarettes?---Well, I saw what appeared to me to be a customer docket. Did you see any money being handed over?---No, I did not. The accused lert the store, did she?---That is ight." ram then gave "Did you sée he the Manuka stor Manuka?---The Manuka Woolworths, that is that?---Some time it was in - which year do you mean?-~--= Did you speak to police in relation to these matters?---I had you seen th a Pon Was the accused carrying anything?---She had a bag in her ha Tothink it was black in colour anda canvas type. fould you « nto the bag?---T what I thought was a bottis bag itself. s she accused doing during that cheeeing TPS around the store together, 9. What happened after that?---I went outside the vont of the checkouts and waited for the two ladies to come through the checkouts to purchase their groceries. Did you see the accused in that area near the checkouts?--~-I did. What haprened there?---They paid for their voceries that they purchased and then proceeded to = leave the checkout area. eevee And what happened outside the checkouts?---Because I did not see the bottle of gin being paid for - it was fu on the checkout - I then asked could I their shopping hag. episcde described by Mr Gueanbes yan, was too far present charges. As to showed no more than that the appellant was suspected of Fad 4 Me J. Cording, manager of a Woolworths supermarket, gave evicence that, at Noden Plaza, on 27 Sertember 1980, he saw the appellant and a young boy. Mr Cording gave this evidence : "Just tell us what you did. Did you go towards her?---Yes, I walked over to the woman and asked if 10. I could be of assistance, and she then proceeded to ask me questions about the advertising board - we have a frees advertising board in that area - which I answered, ard she mentioned something to the boy about putting an adon there for something they wanted to sell, and I walked away. While I was there, I noticed a large red canvas bag underneath the turnstile that had been placed so it was on the outside of the store, or the outside of our turnstile limit, and I then walked away. And where did you go to?---I went back to the middie of the checkout bank. The women then went inside the store and the boy went into the plaza. Iwalked hack to the turnstile and then looked in the bag and observed what was there then went away used, Mrs Yates, n?---VYes, a came back to me! tile, ney had a discussion, ¢ ed up c It ay Mitchell progress and the O5@ DATS Km at them Loa belled scctch I left the area, f anging around there. e the accused later?---Yes, she went checkouts and I asked one of the ervisers to make sure her bags were ll. checked. That is right, just tell wus what you did or what you saw her do?---I saw her pay e, I think, some bread and milk. She went through the checkouts and then went out of the stores where then Mrs Mitchell joined me. eee MR KORN: So you are not certain of what, if any, part the boy played in these proceedings?---It was quite obvious to me that he was on the lookout for anybody that was watching the accused. You did say a minute ago you did not know where the boy was, is that what you said?-~-As I said, it was nearly years ada. The boy went out through the che its and the accused purchased some items and went cugh the checkouts." Again, this was evidence that the appellant was suspected ta ptember 1980, she Millward gave "And ¥ ppened?---f the lady remove three squash va ts from the ay 38 dl. She was carrying a large redc as shopping bag witha zipper on the side. Iosaw her carry the squash rackets in her hand around stand to the other side i othe stand where re was cricket gear displayed. There was cricket gear displayed also sor in front of rackets down amor on the £ the squash the floor. stand. She placed t the cricket gear on After that?---The lady then moved across into the ike dress material department. she walked slowly to 1.30 tended to show that the dress material department then she turned around and faced back to the direction from which she had just come. At this stage, I was standing in the manchester deoartment. e..che then walked back to the sport department where the squash sets we the cricket gear on the floor. She picked up the squash rackets and ced the red shopping bag she was holding. walked from that area acros to the mai She walked down the main aisle. wee ...We walked past the cash register turned to the right around the corne sta é@ was walking very quic: up te Keep pace with her. have been off very behind her neared the the exit fou Oo 1S to or How far nia & oct M) ot betict ty io o ory ts 1D f He) bee ehor D5rhe GD rs é if seen ner were yo I away. s Walk nad ing in e er, and had a nversation with the sne emoved the ced on the rsa with the she a from the store. MR KORN : Mrs Millward, I think what she had been writing was in effect what might be called a lay by, or something of that description?---I approached the assistant immediately after the incident and I made inquiries cof her and it was not tight chan thy tnt ie . " , of { 13. a lay by which she had written. She had shown me what she was writing." Again this was evidence that the appellant was suspected of shoplifting and that she was cautious and devicus in her methods. ig] vVidence of a similar type was given by Mr P.T. Hannan, of Woolworths Limited. Me Hannan gave this evidence with respect te events on a Wednesday afternoon in late September 1980 : axrying anything, do you remember?---She a cane basket over her arn. was the basket?---Ibt was a cane type she vroceeded towards the ! Did you see what the checkouts?---At that time we rang enecrouts. tell us what you saw?---The woman ' towards checkcut No - about 10 or ll. And did you see what happened?---She just went us and took her place in the line - in the queue. queue when you came down into Yo, she then went back into 14. Did you see where she went?---She store. I did not follow her ever I just kept an eye of where she store roughly. went around the aisle and that, was around the that take wlace for?---About 15 What happened after that?---Th proceeded back to the checkouts, e woman to the checkout that she had previously been = said when you Mrs Yates?- hat M then same remove the bags from the trolley and everything out of the on the shelf, and th red bag @ young and chap a enaecatataacaseeaeettee aE eta une eta to OES - _ pon remem 15. emptied everything cut of the wicker basket and he also replaced it on the shelf." Tt is clear from the evidence that the witness suspected the appellant of an intention to shoplift and that the appellant acted deviously. The witness said : "T then saw her vreplace the handbag on top and then she draped the cardigan over the top of the basket sQ as you could not see anything in the basket - or that was in my opinion." Of the evidence we have set out above, Mr Kingham's avidence about the more vecent incident mentioned liquor, Mr Cording's and Ms Mitchell's vidence mentioned liquor and Mr bre clon He turn now to the evidence which referred directly to offences charged. With velation to ccunt 3, evidence was given py Me D.R. Harding, an employee in the fen branch of Farmer Brothers, that he observed the appellant, with a boy and a girl, br Tia Maria which she placed into a blue bag she placed ina red bag, that the girl and the boy moved out of the shop, the apoellant speak toa My S.C. Wagner, who was seyving behind the counter, that he did not see any money handed over, that the appellant then moved towards the door and disappeared. Mr Harding said that he went 16. to speak to Mr Wagner, that the appellant came back into the store, and that while he, Mr Harding, was deciding what he would de, the appellant moved away from the shop and disappeared into the crowd. Evidence was given by Mr Wagner that the appellant did not pay him for any goods. Accordingly, there was direct evidence of shoplifting on this occasion. The princival evidence with respect to count 4 was given by Ms Joan P, Bordiuk who said that, on 24 September 1980, at the the GROG lant take a cigarettes from the cigarette stand, put them 3 an mo ly + at . x lnvand ina cane basket and walk out of the GROG eh, "o 7 ChAT F--- other carton TY i en eee you said and Can you do your he i t I thanked the woman for what she said?--- putting the goods back. 17. Did she say anything?---What do you mean? What haspened with the glass of water?---To be quite honest, I do not know. In the pres you say anyt the shep and f the accused did "ne woman to leave Did she say anything?---She asked Mary Tyson what i to do with her. She did not direct that at rected that at Mary Tyson. Did Mary Tyson say anything?---She ceplied that she was the proprietor and that it nad a lot to do with her. in a manner which Limited and the rst ie) a cr an 2 Liquor in a cane basket in the car Which the appellant was driving when stopped on the morning oF 18 Cctober 1980. As Tour persons were in the car at the cime, it was relevant to prove that the cane basket was associated with the appeliant. Tn relation to this, evidence was given that the bask oD t was a "Creamy coloured white cane type thing with two wooden handles" and was found on the floor in the front passenger seat. Evidence was given that there were two cane baskets in the vehicie, one having cane handles and the ne a 18. other having wooden handles, that cane baskets had been carried to the car by the appellant and a Mrs S.A. Steer and that two children had each carried bags to the car. Mrs Steer said in her evidence that she could not remember carrying anything when she went back to the vehicle and could not vemember carrying a cane shopping bag or any bag other than a brown handbag. Mrs Steer's daughter, Sharon, said that, prior to going into Kennedy's store and acquiring the football jumper which was the subject of count 7, she had been given basket with brown handles and that she subsequently put the £ prowerty of a department store, David Jcnes (Australia) Pty and 2 the gocds were alleged to hav situated within the Australian Capita larceny was proved by wroof of recent On the t p ral ry ct by count, as ¢ by D «Q is)Q. w Fa oD rs wo @ — ~ Lar) wQ Q fp ct fe) bp pa] < oO iy oO om Ss 19, taken from a store outside the Australian Capital Territory, the count charged the appellant with possession of property stolen outside the Australian Capital Territory well knowing the same to have been stolen. In proof of counts 1, 2 and 10, the prosecution adduced ' evidence as to the finding of the goods, as to ownershi fay rh ctr > ® goods and as to the explanations which the appellant had given to ty the members of the police as to how the goods had come into her possession. Evidence was also aqiven by Mrs Steer as to a conversation she had had with the appellant as to how the never mentioned money at all. ... She was sort of bragging about how it was done ... She was it a joke." s daughter, Sharon, also gave evidence concering the first count. She was not criginalliy asked any questions concerning counts 1, 2 and 10 but she was recalled to the witness wm box and it was put to her by counsel for the appellant that she had taken the radio cassette to t oa appellant's home, where she had often stayed, for she was friendly with the appellant's daughter. 20. Her answers were somewhat evasive and we set them out: "Can I be shown exhibit B, your Honour, the radio cassette. Would you have a look at that article there, Miss Stear?---Yes. That infact is anarticle of yours which you brought and left overnight at the Yates household, is it not?---It does not belong to me. That infact is an article of yours which you brought overnight and left there?---It does not beleng to me. You are denying that you left it there overnight?---It is not mine. what you mean by say it is not T never owned or do possess one of You never notwithstanding that Mrs Steer, Sharon Steer and the appellant's to more than one count. Most of counts. Thus, with vespect stablish that, when the property in a cane basket in evidence which we have outlined shoplifting of tLiquor from s car, it was in the possession of the appellant 21. daughter were also inthe car at the relevant time. With respect to counts 1, 2 and 10, it was necessary to prove that the goods found on the premises in which the appeilant lived were in her possession notwithstanding that those premises were also occupied by a gentleman named Peter and by the appellant's children and that other persons, such as Mrs Steer and her daughter Sharon, visited the premises from time to time. With respect to the cane basket, several parts of the evidence tended to rslate that basket to the appellant. Mr ¥) Harding's evidence as to the events in Kennedy's store referred ro) to "a wicker basket". The witness, Ms Bordiuk, described the appeliant as having "a cane basket" on the occasion when she took ct he Winfield cigarettes from the GROG Shop. My Hannan's " Low evidence describec the arpeliant as currying "a cane tyoe basket " a = in addition, much of the evidence tended te show that the appellant was the managing person in shoplifting activities which involved other people, including her children and Sharon Steer. And the evidence as to the devious means which the appellant used in shops to effect shoplifting and to avoid apprehension was strongiy probative in relation to many counts, for it provided an ts that otherwise may have seemed improbable. o E rae o a] Ps) ct fo oOOo rh th a a ¢ Thus, in relation to count 4, which involved the carton of Winfield cigarettes alleged to have been taken from the GROG Shop, evidence was given that the appellant was accosted outside 22. the shop and asked to return. She then complained of feeling faint and an employee was sent to get her a glass of water. AD carton of Winfield cigarettes was found on a case adjacent to the appellant shortly after the attention of the manager of the shop had been momentarily diverted. Tne description of the appellant's behaviour in other shops tended strongly to support the inference that the appellant had created a diversion which had enabled her to remove the carton of cigarettes from her bag and place it on the adjacent case. Similarly, the evidence given with respect to the appellant's involvement with children in shoplifting tended to show that she was capable of stealing carried it (the television set} out and the manager opened t svations of the apne appellant in the company of two children putting liquor into bags and when he later cbserved tt of the bags while the appellant spoke to the cashier. Generally, the evidence had assistance from others, particularly children, in the commission of shoplifting and that she was a clever and devious woman who acted in such a suspicious manner as to show that events, which otherwise might have seemed unlikely, in fact happened. 23. The challenged evidence therefore strongly supported the occurrence of the crimes and tended to rebut any defence which the appellant might have put forward in explanation of her possession of the goods which were found to be stolen. Much of the evidence showed that the accused was under suspicion for shoplifting. The prosecution may not call, asa cornerstone of its prosecution for stealing from shops, evidence that the accused is a shoplifter, let alone evidence that the accused is suspected of being a shoplifter. As the Chief + already cited, such evidence % Justice said in the is not admissible, "...if the evidence shows only that he had a propensity to commit crime, or crime of a particular kind, or that he was the sort of person likely to have committed the crime LO said in Makin v New South Wales £1894] AC 57 ab p.65 "Tt is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has " criminal acts other than those cove indictment, for the purpase of Lear conclusion that the accused isa per his criminal conduct or chaz i i offence for which he Suck evidence may be admitted only if {ft goes to some further aspect of the matter, to some relevant issue. In our view, the evidence complained of in this appeal did go tea further relevant aspect. The evidence tended to show not merely that the appellant was a shopiifter but also the methods used by her. The evidence, therefore, tended to prove in an acceptable manner the offences with which the appellant was charged. The evidence of Mr Kingham was not, we think, strongly probative of any of the offences charged and seems to have done little more than to show that the appellant was suspected of shoplifting. In our opinion, that evidence should have been excluded. Mr Cowdery conceded as much as to part of it. Nevertheless, we are of the view that the evidence would not materially have affected the trial. My Kingham's evidence added no additional element to the matters which were established by the evidence of other witnesses. It was clear from ali the evidence that the appellant was widely suspected of being a We Fullaga Lt v R (1855) 93 CLR 493, at " z i ry iB r ' rs! b we would not, on There was no other evidence which, in our view, was not as & matter of law admissible in evidence on ene or more of the charges. of law on facts. goods were related in resvect to basis with respect 25. The evidence was, in our view, admissible as a matter that it was relevant evidence of similar evidence was such that the jury could have to each incident, that the appellant was snoplifting activities, whether or not in each case actually stolen. The incidents were all sufficiently time and character to have strong probative force with the counts with which the appellant was charged. diseretion, the evidence should not have s unfairly prejudicial to the appellant. yejudicial effect of the evidence as to the substantial. It was shown that the appellant number of persons of being a shoplifter and, steal, This evidence that is not dither unfairly prejudicial or irrelevant. the type which the evidence showed the ct i bp QO ts fa) rh QO rs D cr oO ie] for oO fu ct is} was the avpellant who was in possession of hich was found in the cane basket in her car 26. and also to provide proof that the other goods in the premises which were found to be stolen were also in her possession. In our view, the vi 1 Similar facts was relevant and, although prejudicial to ¢ appellant, was only prejudicial as tending to show by evidence fairly admissible that she was guilty of the offences of dishonesty charged. In relation to the exercise of the discretion, it is necessary to keep in mind that, ina criminal trial, specific issues are her defence more than make a general denial. therefors ll, ain the course of on c Tn our opinion, it cannot be said in present case that there were not proper grounds upon which his Honour could have exercised his discretion in the manner in which he ¢id or that lant did not have a fair trial. The verdicts which were brought in by the jury show that, 27. in fact, the jury gave careful attention to each particular charge. The jury dismissed two of the charges, the first one being that involving the football jumper taken from Kennedy's store and the other relating to books taken from Collins Booksellers. In relation to these charges, the jury considered that it was not shown that the appellant had taken or had possession of the stolen goods, No doubt the jury's view is readily understandable as the books taken were more suitable for reading by a young person than by an adult and as Sharon Steer Was involved in the taking of the football jumper. Nevertheless, the fact that the two counts were dismissed shows counts should a question of discretion. All the counts which are joined together in the one indictment must be heard together unless the Judge, in the exercise of discretion, orders that there be a semparate trial of one or more of the charqdes. Plainly, the submission put on behalf of the appellant in this respect goes too far. Tt was submitted that each cf counts 1, 2 and 10 should have been heard on its own. Yet it was certainly correct to join these counts together in the 28. one hearing. No doubt it was prejudicial to the appellant to woA. ct have to def he vossession of goods which the prosecution alleged had been stolen from three separate stores. However, it was not unfairly prejudicial to her that this should occur. The goods were in her possession in her home at the one time. It would have been unfair to the prosecution not to have required the appellant to explain now she came to have all the goods in her possession at that time. and 9. 1980, the appellant and her daughter called upon the appellant to stop The appellant got out of the car. of the police foreas off with the again stopped and goods found in the having been the property of a number In our opinion, there was no doubt what those three charges and charges 8 and 9, the assault counts, should have been heard together in the one trial. The appellant's conduct while in the Woden Plaza and her conduct when the car was stopped was relevant both to the shoplifting charges and to the assault charges. These were a connected series of 29. events. Such charges are traditionally heard together. There was mo special prejudice to the appellant arising out of the joinder of those charges. The next question which arises is whether the two other shoplifting charges, counts 3 and 4, the first of which related to an uncertain date in August 1980 and the other to 24 September 1980, were properly joined with the other shoplifting counts. In our opinion, there was no particular prejudice to the Le) ' ay ia) ba} oO rh ct > oD ui G ie) ounts, In respect of each offence of sheplifting, reliance was placed upon evidence as to what the appellant was observed to do. In our opinion, the jury would have had no difficulty ty ~sso fe i ie ing the evidence given with and 10, the counts iD me, should have been heard together with the other charges. In our opinion, it was correct to doin them together. We have aiready indicated our view that there was evidence given with relation to similar facts which tended to prove counts 1, 2 and 10 by showing that the appellant was 'the person who was in possession of the subject Fs goods and that she had developed a method of shoplifting which made the theft of the gcods credible. Moreover, the evidence RE Pa (ico ate olaa se ea gh tector nian cern metatiantntt aera, 30. given in relation to these counts as to the liquor found in the appellant's lounge room tended to show that the appellant was the person who was in possession of the liquor stolen from Woolworths, the subject of count 6. We think it was proper to join all these matters together in the one trial. We think the appellant was not unduly prejudiced by the joinder. We would therefore We turn now to of apoceal. in admitting led + sudge re the Evidence Ordinance 1971 of the "29,(2) Whe fr sa ran ss ye 7) pe m by' is ba Sow i ct thet Owie yerson acting under a duty to make the (b) in the course of, and as a record or part of a record relating to, any business; oF (c) in the course of, or as a record or part of a vecord relating to, the administration of, or the performance of the functions of, a government department, rf s fs) information supplied (whether directly or ee EEeEeEEEES=E—E—E—eEeEeree__e ee "ou v 31. indirectly) by a person wno had, or might reasonably be suposed to have had, personal knowledge of the matters deait with in the information supplied by him and if - (d) the person who supplied the information is dead; (e) the person who supplied the information is outside Australia and it is not reasonably practicable to secure his attendance asa witness; {f) the person who supplied the information is F unfit by reason of old age or of his bodily : or mental condition to appear as a witness; (g) the persan who supplied th information cannot with reasonable diligence be r the £ cirecumstanc dealt h tion 35(1) provides : court may, for the purpose of deciding Gocument tendered in evidence should or admitted in dence in sursuance of aw any reason e in rom the : which the stateme WAS de and : contents of the document in which i contained." The appeal concerns three documents. The first was an invoice, Exhibit "J", which tended to shew that three Sanyo ayers were veceived into David Jones' store around 19 November 1379 the second and third documents, ~ Ezhibit "L", were a Waltons' order form and an Olivetti delivery slip which tended to show that the tysewriters, the subject of count 2, had been ordered by and despatched to Waltons' store, Canberra. + in receiving these documents into evidence, the learned - trial Judge velied upon paragraph (nh) of s.29(2) and upon the ty provisions of s.36(1). His Honour drew the inference that the persons who supplied the information contained in the documents could not reasonably be expected, having reaard to the time that bad elapsed, to recollect the matters dealt with in the documents. In drawing the inference, which 'his Honour was authorised to do by s.36, his Honour relied upen the form and contents of the documents. ct tog? be a id Les) CO =) th sy Z waQ ct a cr tQ ne goods had a deliver: which recorded the ivery dGocument. Te Ti was submitted should not have been 33. received in evidence unless proof had first been given by the maker of the statements therein that he or she could not recollect the matters therein set out. Mr J. Korn, of counsel, who appeared for the appellant, submitted that the inferences permitted by s.36(1) should not lightly be drawn. However, the provisions of Part 6 of the Evidence Ordinance are intended to facilitate the proof of facts and should be applied in a sensible manner. We are of the view that there was adequate material upon which his Honour could draw the inference upon which he relied and that it was proser for him to draw that inference. It would have caused undue delay and expense to require the attendance of witnesses on the matter. is surficient to disgeose of the obiection ta the Naltons' order form. However, there isa respect to the Olivetti delivery slip. Me Korn submitted that is not necessary for us to consider this submission at any length. In ouy opinion, the delivery si provided cogent eavidence that the Olivetti typewriters found in wD ~ any o3+ the possession of the apo store in Canberra and had been received by that firm. Even if the delivery slip should not have been admitted under s.29(2), we would not think it proper to send the case back for rehearing. 34. There seems no reason to doubt the facts which the documents were tendered to prove and we think that there was no miscarriage of justice. We would add, however, that we were not persuaded by any submission put in argument that the delivery slip was not a document falling within para.(b) of s.29(2). The delivery slip appeared to be a document made in the course of the business of the despatcher of the Olivetti typewriters and as apart of a record relating to that business. The use made of that part of the record, its despatch to Waltons, does not destroy that inference. For these reasons, we would not uphold grounds 9 and 10. of the notice of appeal. In our opinion, the appeal should be dismissed and the matter remitted to the Supreme Court of the Australian Capital Territory for execution of the judgment. ne 33 praceding . 'J yei ten reasons Tor