REGINA v CLAXTON [1999] NSWCCA 303

New South Wales Court of Criminal Appeal CITATION : REGINA v CLAXTON [1999] NSWCCA 303 FILE NUMBER(S) : CCA 60615/98 HEARING DATE(S) : 16 September 1999 JUDGMENT DATE : 16 September 1999

PARTIES : Regina v Bruce Claxton JUDGMENT OF : Sheller JA at 1; Grove J at 35; Hidden J at 36

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0081 LOWER COURT JUDICIAL OFFICER : Mitchelmore J

COUNSEL : G Nicholson QC - Appellant MM Cunneen - Crown SOLICITORS : Mark Rumore - Appellant S E O'Connor - Crown CATCHWORDS : CRIMINAL LAW - receiving of stolen property - horse float - where trial Judge incorrectly stated in summing up time at which accused must have knowledge that goods were stolen - where correct time of knowledge later stated by trial Judge - where no recognition of prior mistake ACTS CITED : Crimes Act Criminal Appeal Act 1912 CASES CITED: Andrews v The Queen (1968) 43 ALJR 57 DECISION : Appeal allowed; Conviction of appellant quashed; Judgment and verdict of acquittal to be entered

IN THE COURT OF

CRIMINAL APPEAL 60615/98

SHELLER JA GROVE J HIDDEN J

Thursday, 16 September 1999

REGINA v Bruce CLAXTON JUDGMENT

1 SHELLER JA: On 18 August 1998 the appellant, Bruce Allan Claxton, was indicted before his Honour Judge Mitchelmore on two alternative counts. The first was that between 18 and 19 September 1997, at Lawson, he stole a 1997 model Builtwell Stanza brand horse float, the property of Shauna Bottrell. The alternative charge was that between 18 and 27 September 1997, at Castle Hill, he received and had a 1997 model Builtwell Stanza brand horse float, the property of Shauna Bottrell before then stolen, the stealing of which amounted to a felony and: "he, the said Bruce Allan Claxton, at the time when he received the said property, knowing the same to have been stolen." The offence charged in the second count was an offence under s188 of the Crimes Act . The appellant pleaded not guilty to both charges. 2 On 20 August 1998 the jury returned a verdict of not guilty on the first count and guilty on the second. On 4 December 1998 the appellant was sentenced to a minimum term of one year commencing on 3 October 1998 and expiring on 2 October 1999, and an additional term of one year commencing on 3 October 1999. The appellant appeals against his conviction. 3 The Crown case, in summary, was that during the night of 18/19 September 1997, a Builtwell Stanza brand horse float, the property of Ms Bottrell, was stolen from outside her residence at Lawson. A witness, Belinda Zaiter, gave evidence that on 27 September she noticed a "For Sale" sign for a horse float at Woodville Avenue, Granville. She bought the horse float from the appellant for $2,350 and paid a deposit of $300 to him. The appellant told her that the float was his and had been sitting on his property for 20 years. When Ms Zaiter showed surprise, he said that he had rebuilt it. 4 The appellant gave her a receipt showing the letters and numbers HF2745 which were the same as those appearing on the front bars of the horse float. The horse float did not have any registration plate or registration document accompanying it. Ms Zaiter said that the appellant told her that it was his float, that he had recently divorced from his wife, that he had lived on a farm up at Mudgee and that she got the four wheel drive, he basically got the horse float and a "bombie" old car and he bought the float down here to Sydney to try and sell it. "He told me that the float had been sitting on his property for 20 years. When I showed surprise at that he told me he had rebuilt it all, had stripped it back, sandblasted it and rebuilt it. Hence that's why it looked in such good condition." 5 When Ms Zaiter later looked more closely she noticed stickers that had been put near the tail-light, obstructing other stickers already there. That and other matters she noticed, including the very good condition of the float, which she said smelt like it was a new float, led her to contact the manufacturer and Ms Bottrell and report the matter to the police. 6 Ms Bottrell gave evidence that she had purchased a float from Bolger Four Wheel Drive Centre for $5,000. It was placed in front of her house. She last saw it at about 7.30pm on 18 September 1997. Ms Bottrell received a telephone call from Ms Zaiter and went to have a look at the float that Ms Zaiter had. She recognised it as hers because the "Bolger Four Wheel Drive" stickers, which were underneath the tail-lights on either side of the rear, were still there. She also noticed that the left and front chest bars had been torn due to an occasion when she was transporting her own horse. Three hardboard cleat boards on the back of the coach box had been put there by her brother-in-law and those were still there. They did not come with the float when she purchased it. 7 The Crown case was that the modifications were consistent with disguising the identity of the float by those modifications. Reference is made to the stickers put over the existing stickers and to repainting. 8 On 4 October 1997 the appellant presented himself at the Ermington Police Station where he was interviewed and the interview was recorded. He gave his address as 20 Hillview Place, Glendenning. At all times he maintained he had bought the float from another person. He told police he had a receipt for the float which he had recently purchased at Castle Hill. He showed police the receipt he had obtained from the person who sold it to him. That receipt stated: "I, Patrick Johnson, do hereby sell one double horse float for the sum of $1500 in full." 9 The paper was dated 22 September 1997 and bore a car registration number. The appellant admitted selling the float to Ms Zaiter and denied knowledge of the theft or alteration of the float. At the time he sold the float there was no suggestion that he gave any false name or false address. 10 At the trial, the appellant did not give or call any evidence on his behalf. The amended grounds of appeal now relied on are: "1. His Honour erred in law in directing the jury there was no doubt that someone stole the horse float; 2. His Honour misdirected the jury as to the elements of the offence of receiving;