New South Wales Court of Criminal Appeal CITATION : REGINA v Raymond JOHNSON [2002] NSWCCA 492 FILE NUMBER(S) : CCA 60364/01 HEARING DATE(S) : 6/12/02 JUDGMENT DATE : 6 December 2002 PARTIES : Regina Raymond JOHNSON JUDGMENT OF : Ipp JA at 1; Hulme J at 36; Bell J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0097 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : PG Ingram (Crown) BT Stratton QC (Appellant) SOLICITORS : SE O'Connor Leon Goldberg (Appellant) LEGISLATION CITED : Crimes Act 1900 Knight v The Queen (1992) 175 CLR 495 CASES CITED: M v The Queen (1994) 181 CLR 487 Martin v Osborne (1936) 55 CLR 367 Regina v Bazley (unreported) NSWCCA 23 March 1989 DECISION : Appeal dismissed; Application for leave to appeal against severity of sentence dismissed IN THE COURT OF CRIMINAL APPEAL 60364/01 IPP JA HULME J BELL J 6 December 2002 REGINA v Raymond JOHNSON Judgment 1 IPP JA: I ask Justice Bell to deliver the first judgment. 2 BELL J: On 4 June 2001 the appellant was arraigned in the District Court at Sydney before his Honour Judge J.X. Gibson QC on an indictment charging him with the following two offences: (i) that on 25 March 1995 at Alexandria he did steal 96 racquets and one squash racquet, the property of Slazenger Dunlop Pty Ltd; and (ii) that on or about 25 March 1995 at Alexandria, without lawful excuse, he had in his possession implements of housebreaking, including torches, portable radios, screwdrivers, pliers, bolt cutters, spanners, radio scanner, gloves, balaclava and a bag of keys. 3 He pleaded that he was not guilty of each count and stood his trial. The next day the jury returned verdicts convicting him of each count. Judge Gibson heard submissions on sentence and proceeded to sentence the appellant that day. 4 On the first count the appellant was sentenced to a term of two years imprisonment, to commence on 1 February 2001 and expire on 30 January 2003, with a non-parole period of eighteen months to expire on 30 August 2002. 5 In relation to the second count, the appellant was sentenced to a fixed term of twelve months imprisonment commencing on 1 February 2001 and expiring on 30 January 2002. 6 The offence of stealing is provided by s 117 of the Crimes Act 1900 ("the Act") and carries a maximum penalty of five years imprisonment. The offence charged in count two was brought pursuant to s 114(1)(b) of the Act and carries a maximum penalty of seven years imprisonment. 7 By notice dated 8 June 2001 the appellant appealed against his conviction and sought leave to appeal against the severity of sentences imposed upon him. The sentence imposed in respect of the possession of the housebreaking implements has been served. The non-parole period of the sentence imposed on count one has expired, and the balance of the sentence will be served by 31 January 2003. 8 A single ground of appeal is relied upon in support of the appeal against conviction in each case: "The verdict is unreasonable and cannot be supported by the evidence." 9 No submissions were directed to the application for leave to appeal against sentences and it is not necessary to refer further to that aspect of the appeal. 10 At about 12.10 am on 25 March 1995 Detective Sergeant Priest and Constable Franks were patrolling Alexandria in a police vehicle. They saw a Toyota Hi Ace van, registration number PNN 678, in Hiles Street, a predominantly industrial area. There was little traffic at this time of the morning. The police followed the van along McEvoy Street and into Wyndham Street. The driver of the vehicle signalled an intention to turn left into Henderson Road, but then proceeded straight ahead into Gibbons Street. It seemed to Constable Franks that the driver was seeking to avoid the police. The police stopped the van in Gibbons Street. There were three men inside the van. They were seated on the front bench seat. Leslie Mara was the driver, the appellant was sitting in the middle, and Mark Smith was seated closest to the passenger door. 11 Leslie Mara told the police that the van belonged to a man named Lewis. Registration papers contained in the glove box showed Gregory Steven Lewis as the registered owner of the vehicle. The owner's address (recorded on the registration papers) was given as a post office box. 12 The police inspected the rear of the van and located four large boxes of Slazenger Dunlop brand tennis racquets, and one Slazenger brand squash racquet. The racquets were the property of Dunlop Slazenger Pty Ltd. A wire mesh grille separated the front and rear sections of the van. 13 In the front cabin area of the van the police located a brown coloured bag containing the following items: · three hand-held VHF transceivers or walkie talkies · one radio scanner tuned to the police communications radio frequency · one pair of blue handled multigrips · one pair of red handled tin snips · one adjustable wrench · three small torches · one pair of black fabric gloves · one piece of green fabric in the form of a tube · three screwdrivers · two spare batteries/power packs · one black waist bag containing an Eveready AA sized battery · one key ring with 11 keys 14 Other police attended the scene. Detective Sergeant Priest said that the brown bag had been located on the bench seat of the vehicle. He believed that it was between the driver and the appellant. Constable Franks recalled that the brown bag was in the front of the van, but did not remember where it had been found. One officer, Donald Seaton, gave evidence: "A. It was tucked down sort of in one of the crevices, sort of squashed down in one of the crevices at the time. That's from memory. Q. So it's between the two seats? A. Yeah. I can't remember if it was on the driver's side crevice or the passenger side crevice of the seat, but it was somewhere in the middle section there" (T44). 15 There was evidence that the radio scanner was on and tuned to the police communications channels for the Sydney City area, and the Eastern Suburbs. These channels transmitted communications relating to the activities of police patrolling the Alexandria area. 16 The appellant, Mara, and Smith were arrested. When Detective Priest and Constable Franks first observed the van it was at the southern end of Hiles Street, Alexandria, near a stormwater channel. Access can be gained to the rear of Dunlop Slazenger bulk warehouse by walking along the stormwater channel. The position of the channel and of the warehouse can be seen on a copy of a street plan that became Ex "C". 17 The racquets found in the van formed part of a consignment that had been received by Dunlop Slazenger on 1 November 1994. A quantity of racquets of this number had not been sold in the period between receipt of the consignment and 24 March 1995. 18 The police conducted a search inside the warehouse and outside its perimeter fence on the morning of 25 March 1995. A further search was conducted two days later. A security gate between the warehouse and the stormwater channel had been forced. Adjacent to the gate the perimeter fence had been pushed forward to create an opening. A little further along from this location some more fencing was damaged. A louvre window giving access to the warehouse had been broken. A maintenance ladder was located very close to the window. This area was not regularly inspected, and the evidence did not establish for how long the window had been broken. 19 Alan Halls, Human Resources Manager for Dunlop Slazenger, inspected the warehouse on a weekly basis. His last inspection was on 20 March 1995. He had not noticed any sign of forced entry inside or outside the warehouse on that occasion. Mr Halls agreed that during his inspections he could have overlooked damage such as that to the fence. His principal concern was with risk management and safety problems. He agreed he had not inspected the broken window for some time. 20 The warehouse was protected by an alarm system that featured a number of sensors. There was no report of an alarm being set off on 24 or 25 March. The alarm system for the warehouse was separate to the main alarm system at the Dunlop Slazenger premises. The alarm for the warehouse was activated by punching a code on a keypad located near the exit door. It was not possible to say whether the warehouse alarm had been activated on 24 or 25 March 1995. Even if the system had been activated, it was possible for the warehouse to have been robbed without the alarm being set off. 21 The appellant gave evidence. On the night of 24 March 1995 he went with Leslie Mara and Mark Smith to inspect a night diving site in La Perouse. The three travelled in his car. At about 11 pm the fuel pump broke down. They were in Botany Road, South Sydney. They walked to the Lakes Hotel, Gardeners Road where Leslie Mara made arrangements to borrow a van from a friend. The friend arrived at the hotel with the van at about 11.15 pm. 22 The appellant agreed that he had been seated in the middle of the front bench seat of the van when the police stopped it. He denied any knowledge of the brown bag or its contents. He did not see the police locate it. He had not looked in the back of the van and he knew nothing of the racquets. 23 The appellant explained why Leslie Mara had signalled an intention to turn left and then proceeded straight ahead at the intersection of Henderson Road and Gibbons Street. The van was almost out of petrol. The appellant looked down Henderson Road to see if the lights were on at the service station. They were not and he told Leslie Mara so. They proceeded straight ahead. 24 The Crown case in support of count one depended on the appellant's recent possession of the stolen racquets. The Crown contended that the racquets had been stolen from the warehouse on the night of 24 March or in the early hours of 25 March 1995, and that the appellant was in joint possession of them with Leslie Mara and Mark Smith. This was a circumstance that was also relevant to the Crown case on count two. 25 Mr Stratton QC, who appears on the appellant's behalf, contends that the evidence was not capable of establishing an unauthorised entry to the warehouse in the hours preceding the appellant's arrest or when it was that the racquets were stolen. In his written submissions Mr Stratton put it this way: "Although recency of possession can vary from case to case and is also dependent upon the goods in question, the Crown case in this case was that the goods were stolen that night. It is submitted that the evidence did not establish that and therefore recent possession could not be relied on in this case." 26 In Gillies Criminal Law, 4th Ed 1997, at pp 441 - 442, the author observes that the doctrine of recent possession serves to do no more than confirm that circumstantial evidence may be used to convict the thief or receiver. In the way this case was conducted on count one, it was necessary for the Crown to establish that the evidence bore no reasonable explanation other than that the racquets were stolen in the hours preceding the appellant's arrest, and that he was in joint possession of them with Leslie Mara and Mark Smith; Knight v The Queen (1992) 175 CLR 495 per Mason CJ, Dawson and Toohey JJ at 502 and Martin v Osborne (1936) 55 CLR 367 per Dixon J at 375. 27 In Mr Stratton's submission the evidence was not capable of establishing beyond reasonable doubt that the appellant was in joint possession either of the racquets in the rear of the van or of the brown bag containing the implements that was located in the front of the van. Mr Stratton pointed to the fact that Mr Seaton described the bag as being found in a crevice separating the driver's seat from the rest of the front seat. 28 Mr Stratton referred us to the decision of Hope JA in Regina v Bazley (unreported), NSWCCA 23 March 1989. That was a stated case from the District Court. The appellant was the occupant of a house. He and a man named Cruickshank were at his premises seated on a lounge when the police attended. The police found a quantity of Indian Hemp on the table in front of the lounge where the appellant and Cruickshank were seated. The appellant acknowledged that he had been smoking, but denied connection with the Indian Hemp found on the table. Hope JA reviewed the authorities dealing with the concept of possession for the purposes of the criminal law. In this regard he referred to He Kaw Teh v The Queen (1984-1985) 157 CLR 523, Moors v Burke (1919) 26 CLR 265, Filipetti v The Queen 13 A Crim R 335 and Regina v Burns (unreported) NSWCCA, 19 August 1988 and went on to say : "It will be seen that in Regina v Burns the appellant occupied the room in which the wardrobe containing the drugs was situated. Another person was also in the room, namely, his companion. Were it not for the evidence to which the learned Chief Justice referred negativing the possession of the drug by the companion, the identity of the person who had possession of the drug was an open one. It might either have been the appellant or his companion or both the appellant and his companion. It was only because of the evidence of the companion that the conclusion was reached that there was a case to go to the jury. In the light of these and other authorities, it seems to me the position in the present case is that the Indian hemp found by the police at the house might have been in the physical control and possession of the appellant, of his friend Cruickshank or of both of them. There is nothing in the evidence to point to the two men as acting in concert in respect to the drugs the subject of the charge. While it is true that they were both seen smoking and there was evidence which could justify a conclusion that it was marijuana, the drug that was being smoked, if it was a drug, was not the subject of the charge. The drugs the subject of the charge were those in the containers and the pipe which were found on the table. There was nothing in the evidence to point to both Cruickshank and the appellant acting in concert in relation to the custody or possession of those drugs. For the Crown, the statement made by the appellant has been relied upon, but I do not think that that is relevant to any acting in concert." 29 A significant point of distinction between the present case and Bazley is the evidence relied on by the Crown to establish that the three occupants of the van were acting in concert, and from which the inference of joint possession of the racquets and the implements was said to arise. Relevantly, the Crown relied upon: · the sighting of the van at the southern end of Hiles Street near the stormwater channel; · the evidence of forced entry at the Dunlop Slazenger premises; · the presence of the boxes of racquets, the property of Dunlop Slazenger that had previously been stored in the warehouse, in the rear of the van; · the conduct of the van in the period immediately prior to the police stopping it; · the presence of the appellant in company with Leslie Mara and Mark Smith in the front cabin of the van; · the presence of the bag and its contents – in particular, three walkie talkies, three small torches and three screwdrivers; · the scanner was turned on and tuned to the police communications frequency; · the appellant's evidence that he had been present with Leslie Mara and Mark Smith since earlier during the course of 24 March 1995. 30 From this combination of facts and circumstances, the Crown contends that it was open to the jury to draw the following inferences as the only rational inferences, (i) that the racquets had been stolen some time within hours of the appellant's arrest and (ii) that the appellant was in joint possession of the racquets and the implements. 31 The test to be applied in determining whether the verdicts of the jury were "unreasonable or cannot be supported by the evidence" is that continued in the joint judgment in M v The Queen (1994) 181 CLR 487. The Court must ask itself whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. 32 On the whole of the evidence I consider it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of both offences. The appellant was one of three men who had been together on the evening of 24 March 1995. The implements found in the car in which all three persons were travelling formed part of a housebreaking kit suitable for use by three persons. The occupants of the van were listening to police radio communications. The van had earlier been seen alongside the stormwater channel that gives access to that part of the Dunlop Slazenger complex where a forced entry had been effected. 33 It could not reasonably be supposed that the racquets were stolen on some occasion after 1 November 1994 but before the evening of 24 March 1995 and that it was a coincidence that they were in the van that night at that location. It was open to the jury to reject the appellant's explanation and to exclude any reasonable explanation other than that he was in joint possession of the housebreaking implements and the racquets that had been stolen earlier that evening. 34 For these reasons I would propose that the appeal be dismissed and that the application for leave to appeal against severity of sentence be dismissed. 35 IPP JA: I agree. 36 HULME J: I also agree. 37 IPP JA: The order of the Court will be as proposed by Justice Bell. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.