Citation: Trajovski v R [2017] NSWDC 325
Court: District Court of New South Wales
Date: 26 July 2017
Judge(s): Neilson DCJ
Background
The appellant, a painter who had migrated from Macedonia, was convicted in the Downing Centre Local Court of two offences of receiving stolen goods under s 188(1) of the Crimes Act 1900. Both items were found at his St Peters residence when police executed a search warrant in the early hours of 31 October 2014.
The first item was a Makita drop saw belonging to a tradesman named Grant Baxter, which had been stolen from a locked toolbox at a construction site in Alexandria on or around 22 August 2014. When police found it in the appellant's shed, he claimed he had owned it for a long time and had paid for it, but could not recall where or how much he paid.
The second charge concerned eight 15-litre cans of Dulux Weathershield paint in the colour "Lexicon Half," which the prosecution alleged had been stolen from the same construction site on the same night. The appellant argued on appeal that his conviction should not stand, raising questions about the admissibility of rebuttal evidence and whether the prosecution needed to serve a coincidence evidence notice.
Legal Issues
- Whether the prosecution was entitled to call rebuttal evidence after the appellant gave evidence at trial that a neighbour had lent him the drop saw, when the prosecution had no prior notice of that explanation
- Whether the presence of two different stolen items from the same construction site constituted "coincidence evidence" under s 98(1)(a) of the Evidence Act 1995, requiring the prosecution to serve a formal notice before relying on it
- Whether the doctrine of recent possession of stolen property was properly applied to both charges
Decision
Rebuttal evidence. At trial, the appellant gave sworn evidence for the first time that a neighbour had lent him the drop saw. The prosecution had no notice of this explanation before the defence case. The Local Court permitted the Crown to call rebuttal evidence on this point. The District Court confirmed that this was permissible: where a defendant raises a new matter in evidence that the prosecution could not reasonably have anticipated, the Crown may call evidence to rebut it. The appellant had told police in both an on-scene conversation and a formal electronically recorded interview that the saw was his own property, purchased long ago. His later evidence about the neighbour was squarely inconsistent with those earlier statements and could properly be challenged by rebuttal evidence.
Coincidence evidence. The appellant argued that the Crown needed to serve a s 98 notice because it was relying on the presence of two stolen items to prove knowledge. The District Court rejected this. The evidence was not coincidence evidence in the technical sense. The prosecution did not ask the court to reason that, because the appellant had one stolen item, he probably knew the other was stolen. Rather, the paint and the saw had been stolen from the same site on the same night, and both were found together at the appellant's home. That factual nexus meant the evidence was directly probative, not circumstantially coincidental.
Recent possession. The drop saw was unequivocally identified as stolen property, and the appellant held it at his home. His explanations, both to police at the time and in court, were inconsistent and implausible. The District Court agreed with the Magistrate that the doctrine of recent possession applied: unexplained or inadequately explained possession of recently stolen property supports an inference that the possessor knew it was stolen. The inconsistency between the appellant's 2014 police interview and his 2016 trial evidence further undermined his credibility and was consistent with a consciousness of guilt.
The paint. Twelve cans of "Lexicon Half" were stolen from the site; eight cans of the same colour were found at the appellant's home. The appellant's sworn evidence that some cans were untinted white was contradicted by the evidence. He called no witnesses who might have corroborated any innocent explanation, including a Greek workmate he mentioned or the person on whose account the paint was purchased. The District Court found it wholly implausible that the appellant coincidentally possessed paint of the identical colour stolen from the same site on the same night as the saw.
Orders Made
• The appeal is dismissed.
Key Takeaways
- The District Court confirmed that the Crown may call rebuttal evidence where a defendant, for the first time in evidence, raises an explanation that the prosecution had no reasonable opportunity to anticipate before the defence case closed.
- A prosecution does not need to serve a coincidence notice under s 98(1)(a) of the Evidence Act 1995 where two stolen items are relied upon not to prove a pattern of conduct but because they share a direct factual link, namely, being stolen from the same place at the same time and found together at the accused's premises.
- Under the doctrine of recent possession, unexplained or implausibly explained possession of recently stolen property can support an inference of knowledge that the property was stolen.
- Inconsistencies between a defendant's statements to police at the time of arrest and sworn evidence given at trial can be treated as consistent with a consciousness of guilt, bearing on both credibility and the substance of the defence.
- No error was established in the Magistrate's reasoning on either charge, and the appeal was dismissed.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 188(1)
- Evidence Act 1995 (NSW), s 98(1)(a)
Cases
- Bruce v R (1987) 74 ALR 219
- Charara v R [2006] 164 A Crim R 39; [2006] NSWCCA 244
- McCarthy v R (1993) 71 A Crim R 395
- Parker v R [1982] 41 ALR 576
- R v Bellamy (1981) 3 A Crim R 432
- R v Cross (1995) 84 A Crim R 242
- R v Rice [1963] 1 QB 857
- Saleam v R (1989) 16 NSWLR 14; 39 A Crim R 406
- Shaw v R (1952) 85 CLR 365
- The Queen v Chin (1985) 157 CLR 671