Gilson v The Queen [1991] HCA 24

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Gilson v The Queen [1991] HCA 24

ORDER Application for special leave to appeal granted. Appeal dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

June 20 Mason C.J., Deane, Dawson and Toohey JJ.

The applicant was charged in the alternative with one count of shopbreaking and larceny and one count of receiving goods stolen from the shop. Under s. 196 of the Criminal Law Consolidation Act 1935 S.A. charges of stealing any property and of feloniously receiving that property may be included in separate counts on the same information and may be tried together as alternative counts.

The prosecution case was that a shop had been broken into on 30 August 1988 and on 3 September 1988 property stolen from the shop was found in an unoccupied house owned by the applicant's grandfather, who was overseas at the time. On 6 September 1988 the police searched the applicant's flat and found property answering the description of some of the goods stolen from the shop. The applicant denied any knowledge of the theft or that the property found was stolen. The prosecution relied upon the doctrine of recent possession in relation to both counts. The applicant was convicted of receiving.

The trial judge directed the jury as follows:

Now, you may find the accused guilty of either of those matters charged against him depending on the view that you take of the evidence but you will clearly understand that you cannot find him guilty of both.

I should point out to you that if you reach the stage that you are satisfied beyond reasonable doubt that the accused is guilty of either of those two offences, one or other of them, that you are satisfied either that he broke and entered and stole or that he received the goods knowing them to have been stolen, then you must determine on the balance of probabilities which of those offences it is which he has committed. Of course, I should add that you may find him not guilty of either charge, again depending upon the view you take of the evidence which has been given.