Citation: Regina v Raymond Johnson [2002] NSWCCA 492
Court: NSW Court of Criminal Appeal
Date: 6 December 2002
Judges: Ipp JA, Hulme J, Bell J
Background
The appellant was convicted in the District Court at Sydney of stealing 96 tennis racquets and one squash racquet, and of possessing housebreaking implements. Both offences were alleged to have occurred on 25 March 1995 at Alexandria.
Police stopped a van in the early hours of that morning after observing it behave in a manner suggesting the driver was attempting to avoid them. The van was found to contain the stolen racquets in the rear, and a bag of tools including walkie-talkies, torches, screwdrivers, gloves, a balaclava, keys, and a radio scanner tuned to police communications frequencies. The appellant was seated in the middle of the front bench seat between the driver and a third man.
The appellant denied involvement and gave evidence that he and his two companions had been travelling to inspect a night diving site when the car broke down. He said they had borrowed the van from a friend of the driver and had no knowledge of the racquets or the implements.
Legal Issues
- Whether the jury verdicts were unreasonable or could not be supported by the evidence, applying the test in M v The Queen (1994) 181 CLR 487.
- Whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was in joint possession of the stolen racquets and the housebreaking implements.
Decision
Bell J (with whom Ipp JA and Hulme J agreed) applied the test from M v The Queen: whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The court concluded that both verdicts met that standard.
The court identified several interlocking circumstances that supported the jury's conclusions. The three men had been together throughout the evening. The bag of implements contained three each of several items (walkie-talkies, torches, screwdrivers), consistent with use by a three-person team. The scanner was active and tuned to the police radio frequencies covering the Alexandria area. The van had been observed near a stormwater channel that provided access to the part of the Dunlop Slazenger warehouse where a forced entry had been made.
The court found it was not reasonably open to conclude that the racquets had been stolen on some earlier occasion and were in the van by coincidence. The only rational inference from the combination of circumstances was that the theft had occurred earlier that evening and that the appellant was in joint possession of both the racquets and the implements. The jury was entitled to reject the appellant's explanation.
No submissions were made in support of the application for leave to appeal against sentence, and the court declined to disturb the sentences imposed.
Orders Made
- Appeal against conviction dismissed.
- Application for leave to appeal against severity of sentence dismissed.
Key Takeaways
- A conviction based on circumstantial evidence will not be set aside on unreasonableness grounds if, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt, applying the test in M v The Queen (1994) 181 CLR 487.
- The Court of Criminal Appeal confirmed that joint possession of stolen goods and housebreaking implements can be inferred from the totality of the circumstances surrounding a group of individuals travelling together, without direct evidence linking any one person to the items.
- Where multiple circumstantial factors converge (proximity to the scene, tools consistent with a group operation, and active monitoring of police communications), the jury may be entitled to exclude innocent explanations as unreasonable.
- In dismissing the severity of sentence application, the court noted that no submissions were advanced in its support, and it required no further consideration.
- Sufficient evidence existed to support both convictions even in the absence of any direct evidence that the appellant personally handled the stolen goods or the implements.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 117 (stealing, maximum five years imprisonment)
- Crimes Act 1900 (NSW), s 114(1)(b) (possession of housebreaking implements, maximum seven years imprisonment)
Cases:
- M v The Queen (1994) 181 CLR 487
- Knight v The Queen (1992) 175 CLR 495
- Martin v Osborne (1936) 55 CLR 367
- Regina v Bazley (unreported, NSWCCA, 23 March 1989)