2016-12-19 R V Potts (No 4) 2016 ACTSC 370

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Introduction

1. Bradley Potts has been charged with six offences, being one burglary, one theft, one offence of taking a motor vehicle dishonestly and without consent, and three offences of obtaining property by deception.

The offences

2. The burglary with which Mr Potts is charged took place between 5.40 am and 7.30 am on Friday 12 June 2015 at premises in Ainsworth Street in Mawson. The theft with which Mr Potts is charged involved the removal from the burgled premises of a large number of items including car keys and a wallet containing a number of credit and debit cards.

3. Around 7.30 am that day, a car was taken from outside the burgled premises, using the stolen car keys. This is the offence of taking a motor vehicle dishonestly and without consent with which Mr Potts is charged.

4. At 7.51 am that day, one of those men (the first man) used one of the stolen cards to buy cigarettes costing around $83 from a supermarket at Erindale.

5. Two minutes later the other man (the second man) used another one of the stolen cards to buy cigarettes for around $50 at the same supermarket.

6. Shortly afterwards, the second man used the same card to buy more cigarettes at a petrol station in Wanniassa.

7. At about 8.05 am on the same day, the second man used the same card to buy a bottle of alcohol at a supermarket in Wanniassa for an unspecified amount. At 8.05 am, the first man bought a bottle of alcohol from the same supermarket, using the card he had used in Erindale.

8. At 8.10 am, the two men went to the Coles Express Service Station in Wanniassa, where the second man tried unsuccessfully to use a stolen card to buy milk and cigarettes, but the transaction was declined. The first man then tried to use one of his own cards, but could not remember his PIN and accordingly could not complete the transaction.

9. The two men had been observed arriving outside one of those businesses in a car that was not the stolen motor vehicle.

10. The first man was subsequently identified as Lachlan Smith. The transactions involving the second man are the subject of the three charges against Mr Potts of obtaining property by deception.

11. The nearby premises where Mr Potts had spent the night before the burglary (his partner’s mother’s home) was searched by police on 20 June 2015, but none of the considerable quantity of property stolen in the burglary was located at the premises.

No-case submission

12. Mr Potts’ trial began on 12 September 2016, and on 14 September 2016, the Crown closed its case. Counsel for the accused then made a no-case submission. In the course of his submissions he indicated that even if the submission was not accepted the defence would not lead any evidence.

13. The submission covered all six charges on the indictment.

14. In Doney v The Queen [1990] HCA 51; 171 CLR 207 (Doney) at 214-215 the High Court said:

... if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

15. In R v Morris (1997) 98 A Crim R 408, Ipp J distinguished the circumstances in Doney, where the question arose when all the evidence had been given, from the case of a no-case submission made at the end of the Crown case, saying at 416-417:

... when a no case submission is made at the end of the Crown case, the test is not whether upon the whole of the evidence it would be open for the jury to be satisfied beyond reasonable doubt that the accused was guilty (compare M (1994) 181 CLR 487; 76 A Crim R 213). The test, as I have pointed out, is whether the defendants could lawfully be convicted and the trial judge, at that stage, ''is required to take into account all inferences most favourable to the prosecution which could reasonably be drawn from the primary facts". As Kitto J explained in Zanetti v Hill (1962) 108 CLR 433 at 442-443, there is no reason "why a weakness in the prosecution's case may not be eked out by something in the case for the defence or why a prima facie inference which by itself would not be strong enough to exclude reasonable doubt may not be hardened to satisfaction beyond reasonable doubt by a failure of the defendant to provide satisfactory evidence in answer to it when he is in a position to do so''.

16. In Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323, King CJ at 327 set out the principles applicable where the Crown case was a circumstantial one, as follows:

I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.

(emphasis in original)

The indictment

17. The counts on the indictment fell into at least two distinct groups. Defence counsel identified the first three counts (burglary, theft and dishonestly taking a motor vehicle) as “stage 1” and the last three counts (all of obtaining property by deception) as “stage 2”.

18. Count 1 charged a burglary that had undoubtedly occurred, and count 2 charged the equally undisputed theft of specified items from the burgled premises in conjunction with that burglary. Count 3 charged the dishonest taking of a motor vehicle without consent. It was not disputed that the motor vehicle was taken from outside the burgled premises, possibly only a matter of minutes after the burglary and theft were completed, and using a car key that appeared to have been taken in the theft.

19. Counts 4, 5, and 6 charged offences of obtaining property by deception, which were said to involve the accused’s use of cards taken in the theft to make purchases from three different retail businesses in Tuggeranong.

Defence submissions

20. Defence counsel made different submissions for the stage 1 offences and the stage 2 offences.

Stage 1

21. In relation to the stage 1 offences, the elements of each offence were made out by the evidence, but the identity of the offender was in issue. The question for the jury was whether the evidence established that the accused was the offender.

22. Defence counsel said that the jury would need to be directed that counts 1, 2 and 3 were, in effect, a package, and that the jury could not return different verdicts on different counts; specifically, counsel said, unless the jury was satisfied beyond reasonable doubt that the accused had committed all three offences, they could not find him guilty of any of the three offences. This was because the Crown case had been run on the basis that there had only been one burglar, and the jury could accordingly not return any verdict that might have been reached by reasoning involving the possibility that there had been two burglars.

23. Counsel said that on the evidence relevant to the first three counts, the jury could not be satisfied beyond reasonable doubt that the accused was guilty on all three counts, and so, on the argument set out above, could not return a guilty verdict on any of the three counts.

Stage 2

24. Counsel’s submission in relation to the stage 2 offences was that the evidence relevant to the last three counts did not, in relation to any of the counts, establish all the elements of the offence charged.

Approach to analysis

25. It is accordingly necessary to canvass the evidence available in relation to the various counts, in order to consider whether at this point it could be said that the accused “could lawfully be convicted” or whether there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty on the count concerned.

26. This requires consideration of all inferences to be drawn from the “primary facts” that are “most favourable to the prosecution”, and of certain directions that would need to be given to the jury.

27. It is convenient to look first at the stage 2 counts.

The deception offences

28. The evidence directly relevant to Counts 4, 5 and 6 is to the following effect.

29. There was a burglary in a house, and a number of items were stolen from the house, including bank cards in the name of one of the residents of the house (Karen Emms) and the keys to a motor vehicle that was parked outside the house. The motor vehicle itself was then driven away.

30. Within a 30-minute period starting little more than 20 minutes after the taking of the motor vehicle, two stolen cards were used to complete a total of five transactions in retail businesses in Tuggeranong (the businesses), and a further transaction involving another stolen card was attempted but declined. CCTV footage was available showing the two men who had taken part in the transactions, and the items obtained in the successful transactions.

31. Three of the transactions were conducted by one of the men (the second man). There was evidence identifying the second man as the accused Mr Potts:

(a) As depicted in the CCTV footage, the man bore a strong resemblance to the accused.

(b) The accused’s partner, with whom he now has a child, gave evidence identifying the accused in the CCTV footage. Not only was this evidence not challenged by defence counsel, but in fact in cross-examination, defence counsel encouraged her to confirm her identification (R v Potts (No 3) [2016] ACTSC 341 at [22]).

(c) Two items of clothing apparently identical to the clothing worn by the second man in the CCTV footage were seized from the accused’s partner’s home, and the accused’s partner confirmed in her evidence that one of those items of clothing belonged to, and was worn by, the accused, and that the other belonged to her.

32. Evidence was given by the informant, and was not challenged, that the financial institutions involved had provided electronic transaction records for the three purchases and one purchase attempt made by the man said to be the accused, as follows:

33. There was also unchallenged evidence from the informant that the timing of the CCTV footage obtained from the various businesses matched the timing of the electronic transactions recorded by the banks concerned.

34. Each of Counts 4, 5 and 6 charged an offence of obtaining property by deception. The indictment originally charged that in each case that property belonged to Karen Emms, one of the occupants of the burgled house, but it was amended by leave, and without objection from the defence, to refer to obtaining property belonging to someone else with the intention of permanently depriving that person of the property.

35. The offences are created by the Criminal Code 2002 (ACT); the relevant provisions are as follows:

326Obtaining property by deception

A person commits an offence (obtaining property by deception) if the person, by deception, dishonestly obtains property belonging to someone else with the intention of permanently depriving the other person of the property.

Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.

NoteFor alternative verdict provisions applying to obtaining property by deception, see s 371 and s 372.

328Meaning of obtains for div 3.3.2

(1)For this division, and for the application of section 313 (Receiving) to this division, a person obtains property if—

(a)the person obtains ownership, possession or control of it for the person or someone else; or

(b)the person enables ownership, possession or control of it to be retained by the person or someone else; or

(c)the person induces a third person to pass ownership, possession or control of it to someone else; or

(d)the person induces a third person to enable someone else to retain ownership, possession or control of it; or

(e)section 330 (2) or (3) (Money transfers) applies.

(2)The definition of obtain in section 300 does not apply to this division, or for the application of section 313 (Receiving) to this division.

330Money transfers

(1)This section applies for this division and for the application of section 313 (Receiving) to this division.

(2)If a person (A) causes an amount to be transferred from an account held by someone else (B) to an account held by A—

(a)the amount is taken to have been property that belonged to B; and

(b)A is taken to have obtained the property for A with the intention of permanently depriving B of the property.

(3)If a person (A) causes an amount to be transferred from an account held by someone else (B) to an account held by a third person (C)—

(a)the amount is taken to have been property that belonged to B; and

(b)A is taken to have obtained the property for C with the intention of permanently depriving B of the property.

(4)An amount is transferred from an account (account 1) to another account (account 2) if—

(a)a credit is made to account 2; and

(b)a debit is made to account 1; and

(c)the credit results from the debit or the debit results from the credit.

(5)A person causes an amount to be transferred from an account if the person induces someone else to transfer the amount from the account (whether or not the other person is the account holder).

36. In considering the application, I told counsel that if the trial proceeded, I would put to the jury that for the counts of obtaining property by deception, they could only return a verdict of guilty if they were satisfied beyond reasonable doubt of the elements of the offence as explained along the lines of the material set out in the following table:

• by deception

• means inducing a person to believe something that is false (in this case, that the accused was entitled to use the stolen card to buy goods); and
• may be achieved by words or conduct

• dishonestly

• dishonest according to the standards of ordinary people; and
• known by the accused to be dishonest according to the standards of ordinary people.

• intentionally caused an amount to be transferred:

• from an account held by someone else (the second person)

• to an account held by a third person

• with the intention of permanently depriving the second person of the amount.

37. The Crown particularised the conduct of the man involved in the transaction as:

(a) offering the card as the method of paying for the goods he sought to obtain; and

(b) proceeding to use the card to pay for the goods;