Regina v MORAN [1999] NSWCCA 169

New South Wales Court of Criminal Appeal CITATION : Regina v MORAN [1999] NSWCCA 169 FILE NUMBER(S) : CCA 60360/98 HEARING DATE(S) : 28/06/99 JUDGMENT DATE : 28 June 1999

PARTIES : Regina v John Thomas MORAN JUDGMENT OF : Grove J at 45; Abadee J at 1; Barr J at 46

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0943 LOWER COURT JUDICIAL OFFICER : Graham DCJ

COUNSEL : D. N. Howard - Crown J. Nicholson QC - Appellant SOLICITORS : C. K. Smith - Crown John Byrnes & Associates CATCHWORDS : ACTS CITED : Crimes Act Criminal Appeal Act Regina v Reeves (1992) 29 NSWLR 109 CASES CITED: M v The Queen (1994) 181 CLR 487 Jones v The Queen (1997 72 ALJR 78 DECISION : Appeal against conviction is dismissed

IN THE COURT OF CRIMINAL APPEAL 60360/98 GROVE J ABADEE J BARR J

MONDAY 28 June 1999

REGINA v John Thomas MORAN

JUDGMENT

1 ABADEE J: The appellant was indicted before Judge Graham by a jury on 7 April 1998 charged with the general offence of attempting to pervert the course of justice. That offence under s 319 of the Crimes Act, on conviction carries a maximum penalty of penal servitude for fourteen years. 2 The appellant pleaded not guilty. On 9 April 1998 the jury returned a verdict of guilty in respect of the charge. On 5 June 1998 the appellant was sentenced to penal servitude for a fixed term of two years to be served cumulatively upon a custodial sentence of two years periodic detention imposed at the Sydney District Court on 6 September 1996. 3 The appellant appeals the conviction. He no longer seeks leave to appeal the sentence. The Crown case may be summarised as follows. On 2 March 1994 two financial investigating officers from the National Crime Authority and three other members of the police force attended the premises of the appellant to execute a search warrant. The search took place over a period of several hours. A large amount of property was removed from the appellant's home and garage. During the course of the search of the garage the Crown alleged that a new two-tone Daiwa golf bag wrapped in plastic was located in the ceiling space or rafters of the garage. Two officers of the NCA gave evidence that the golf bag was not concealed and was easily observable upon entering the garage. 4 The question has arisen before us as to whether the golf bag was a new golf bag or not. His Honour clearly gave directions to the jury in relation to the bag and the jury were in a position to determine whether or not it was a new bag or a second-handbag. Not only were directions given but the jury had the benefit of considering a photograph and the oral evidence adduced, in terms of describing the bag on the day of the search. 5 On 2 March 1994, the day of the search the appellant was charged with an offence of goods in custody. 6 On the evidence given by each of the two officers at the trial, one of them being Investigating Officer Newton, it appears that Newton asked the appellant whether the bag belonged to him. The appellant indicated it was his. He said he had purchased it. He was asked whether he had a receipt and he replied, "No, you'd better take it too". 7 Newton gave evidence that the search for receipts by the police did not uncover any receipt for the golf bag. 8 On 20 February 1996 the appellant attended the premises of the NCA with his solicitor. He handed to Investigator Newton some receipts, one of which was dated 14 September 1993 under the letterhead Beaver Creek golf Shop. The receipt purported to relate to the sale of a Daiwa golf bag. 9 The meeting of 20 February 1996 took place after an earlier meeting between Newton and the appellant on 16 February 1996, at which time Newton invited the appellant to bring to him any receipts which he would attempt then to verify. 10 Returning to the meeting of 20 February 1996 it is important to observe that when the appellant handed over the receipt, he did not volunteer information as to how he came by the receipt nor did Newton question him about the matter at the time. 11 Newton gave evidence that after he was handed the receipt he attempted to verify it with the former owners Mr and Mrs Wilkins of the Beaver Creek Golf Shop, their accountants and the receivers of the business who had been appointed receivers in March of 1994. The business had been established in July of 1993 by Mr and Mrs Wilkins and one Mr Hassan and was operated until it went into receivership by those persons and three sales staff. Newton's evidence was that the original receipt book kept by Mr and Mrs Wilkins was never recovered. 12 Mr and Mrs Wilkins also gave evidence that the receipts issued to customers were taken from small receipt books typically purchased at newsagents. They had a docket number and date and were stamped with a "Beaver Creek" stamp. The receipt produced by the appellant, tendered and marked Exhibit B in the proceedings was not recognised as a receipt which was issued by Mr and Mrs Wilkins. The signature on the receipt similarly was not identified by the Wilkins, either or both of them. Newton was recalled and further cross-examined about the writing on the receipt. He said that the handwriting which appeared on the receipt could not be identified. 13 Colin Wilkins gave evidence that the Daiwa golf equipment was not stocked at the shop. He accepted in cross-examination that the shop did sell second hand stock and traded stock, and that it would be difficult for him to remember every golf bag that came through the shop. A Mr Freeman, National Sales Manager of Daiwa, gave evidence the company did not sell Daiwa products to the Beaver Creek Golf Shop, but conceded the supply could have occurred from inter-company transaction between retailers. 14 Rosalie Price from Snap Printing gave evidence about selling printed stationery, in particular, business cards and receipt books to a Roger Hassan for the Beaver Creek Golf Shop. The first sales receipt was dated 23 May 1994. Price identified the receipt (Exhibit B), by its number sequence, as coming from a batch of receipts which went in for printing on 25 July 1994. The fact that the receipts in the form presented by the appellant, Exhibit B, was not in existence as at 14 September 1993 was also supported by evidence from Mrs Price who said that the auditor printed receipts were received by Mr Hassan. She said first printed receipts were for him on 23 May 1994. There was evidence at the trial that the appellant knew or had met Mr Hassan who was the very person who had actually ordered the receipts to be printed by Mrs Price. 15 On 2 March 1996 the appellant was spoken to by the police in relation to the Daiwa golf bag and he was subsequently charged with the offence that he went to trial on 27 April 1997. 16 The appellant's case may be summarised as follows. The appellant gave evidence and was cross-examined. He denied the allegations and it was his case that the receipt relating to the Daiwa golf bag was genuine and related to a genuine purchase by him on 14 September 1993 being the date of the invoice. 17 He gave evidence that he played golf regularly and that he had purchased the Daiwa golf bag from the Beaver Creek Golf Shop with the intention of giving it to his son and with the intention of trying to persuade his son to play golf and that that attempt to persuade his son was unsuccessful. 18 The appellant gave evidence that he normally purchased golf equipment at a place called Sharpies near Central Station but that the Daiwa golf bag had been purchased as a single item during an impromptu visit after leaving the Pier Hotel that afternoon. He said that upon ascertaining his son's lack of interest in the game of golf said he had stored the golf bag in the garage. He denied that the only piece of golfing equipment found during the search was the Daiwa golf bag. 19 In respect of the conversation of 2 March 1994 he gave evidence that he had told investigators he had purchased the bag. He accepted that he had been asked whether he had a receipt for such and that his answer has been, as I have already indicated, "No, you'd better take it too". He gave an explanation for saying this because he was sick of saying that he had not got the receipt. 20 In cross-examination he said that he had misplaced the original receipt, which he described as "an ordinary looking receipt form". He gave evidence that on 16 February 1996 he was approached by the informant to produce any receipts and that they would be checked out. He said on 20 February 1996 he produced the receipt, Exhibit B, to the informant in relation to the purchase of the golf bag, delaying the production of that receipt on legal advice. His evidence was that he had acquired the receipt from a sales assistant at the Beaver Creek Golf Shop in September 1994 after having given the sales assistant an explanation he had purchased the golf bag about twelve months before in September 1993 and that he required a receipt for the purchase. 21 He said that the sales assistant left the counter and returned five minutes later with a receipt dated 14 September 1993 which refreshed his memory as to the date of the purchase. 22 The appellant, against the background of this factual situation, advances a number of grounds of appeal.