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Court of Criminal Appeal 11 December 2000

R v SINANOVIC

[2000] NSWCCA 395

Theft & property

Citation: R v Sinanovic [2000] NSWCCA 395
Court: NSW Court of Criminal Appeal
Date: 11 December 2000
Judge(s): Wood CJ at CL; Hulme J; Greg James J

Background

The appellant had been convicted in the District Court before Grogan DCJ of receiving stolen goods, specifically an opal and diamond ring valued at over $10,000. The ring had been stolen during a burglary of a Hyde Park Antiques business over a weekend in August 1991, and the appellant later pawned what the Crown alleged was that same ring in March 1992 for $300. He never redeemed it.

The appellant was unrepresented at trial. He had been refused legal aid and appeared before the jury with only the assistance of his wife and an interpreter. The jury acquitted him of the primary stealing charge but found him guilty on the receiving charge. He was sentenced to a minimum term of 13 months' penal servitude.

This was the third of five appeals the appellant had brought against various District Court convictions. The Court of Criminal Appeal dismissed the appeal on all grounds.

The court was asked to resolve the following questions:

  • Whether the trial judge erred in refusing to adjourn the trial to allow the appellant to obtain legal representation
  • Whether the Crown was entitled to rely on the doctrine of "recent possession" given the circumstances disclosed in the indictment
  • Whether the trial judge's jury directions on recent possession were confusing or prejudicial
  • Whether the verdict was unsafe and unsatisfactory on the evidence
  • Whether the Crown had improperly suggested the appellant was lying about purchasing the ring, in circumstances where a Crown witness in a later, separate trial gave evidence consistent with the appellant's account

Decision

Adjournment for legal representation: The court found it was impossible to conclude the appellant had actually made a formal application for an adjournment. The trial judge never ruled on such an application, which was consistent with the view that none had been made. While the appellant's unrepresented status and lack of readiness raised the question of a possible adjournment (particularly in light of Dietrich v R), countervailing factors weighed heavily against it. These included a history of procedural delay, the appellant's alleged failure to provide full information to the Legal Aid Commission, and the expiry of a prior stay. Nothing before the trial judge indicated that an adjournment would actually assist the appellant in obtaining representation or that the absence of representation was not the appellant's own doing.

Recent possession and the relevant directions: The doctrine of recent possession permits a jury to infer that a person found in possession of recently stolen goods knew the goods were stolen, absent a satisfactory explanation. Hulme J delivered a detailed analysis of this doctrine and offered an articulated model direction. He found the trial judge's directions contained some passages that, taken in isolation, could have been confusing. However, the court concluded that when the summing-up was read as a whole, and taking into account the trial judge's use of contrasting examples tailored to the facts, there was no real prospect the jury misapplied the doctrine. Greg James J added that any confusion would only have operated in the appellant's favour, noting in particular that the directions did not suggest the jury could use the falsity of the appellant's explanation or the alleged forgery of a receipt as independent evidence of guilty knowledge.

Unsafe and unsatisfactory verdict and the fifth ground: The court did not separately elaborate on these grounds in the reported text, but having examined the evidence and circumstances, it was satisfied that no miscarriage of justice had occurred. The appeal was dismissed accordingly.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Under the doctrine of recent possession, possession of recently stolen goods, combined with an absence of satisfactory explanation, can support an inference of guilty knowledge. The Court of Criminal Appeal confirmed that jury directions on this doctrine should be succinct and closely aligned with the formulation endorsed by the High Court in Bruce v R.
  • A trial judge's failure to adjourn for an unrepresented accused does not automatically constitute error. Where delay is attributable to the accused's own conduct and there is no indication an adjournment would secure representation, the refusal to adjourn may be entirely justified.
  • Jury directions are assessed as a whole, not in isolated passages. The court found that passages that might have been confusing individually did not produce a real risk of miscarriage when the summing-up was read in its entirety.
  • In dismissing the appeal, the Court of Criminal Appeal observed that any residual ambiguity in the directions had operated to the appellant's advantage, not his detriment, a consideration relevant to whether any irregularity was material.
  • The court noted that a satisfactory explanation for possession is not reasonably expected where its absence flows from the accused exercising the right to silence with persons known to be police officers.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 188 (receiving stolen goods; maximum penalty 10 years' penal servitude)

Cases:
- Dietrich v R (1992) 177 CLR 292 (right to representation for accused facing serious criminal charges)
- Bruce v R (1987) 61 ALJR 603 (High Court formulation of the recent possession doctrine)