SUPREME COURT OF QUEENSLAND

1. PINCUS JA:  The appellant was convicted in the District Court, after a trial, of one count of breaking, entering and stealing and two of receiving.  As to the first count, the Crown case was that there was discussion between the appellant and one Sim, during which Sim told the appellant that he worked at a nut factory, selling nuts.  Subsequently, according to Sim, the appellant said "he'd get me half price for whatever I got from the nut factory".  Later again, Sim told the appellant, with reference to the nuts, that he could "try to knock them off", to which the appellant responded that he "could get half price for whatever they're worth".  On the Crown case, Sim then decided to take nuts from the factory and, with one Hurst, broke into the factory and stole nuts, some of which were taken to the appellant. 

2. The first ground of appeal argued was that the evidence which I have summarised could not support a conviction of the appellant of breaking, entering and stealing, as opposed to simply stealing. On the evidence, it was open to the jury to find that what the appellant said to Sim encouraged him to do what he said he could do, namely "knock off" nuts. The question is whether, accepting that, the jury was entitled to conclude that the appellant counselled or procured Sim to break, enter and steal: s 7(1)(d) of the Criminal Code. The answer to that depends on whether s 9 can properly be applied to the evidence;  the expression "knock off" ordinarily means "steal" and so the conviction of breaking, entering and stealing can be supported only if counselling to steal could in the circumstances of this case make the counsellor criminally liable for a course of conduct which includes breaking and entering as well as simply stealing.  Section 9 reads:

"(1)When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.

(2)In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by the other person".

3. Under this section, a person who counsels the commission of offence A may be convicted of offence B, but only if "the facts constituting the offence actually committed are a probable consequence of carrying out the counsel". The judge told the jury that "probable consequence" means a "real possibility or a substantial chance or a real chance"; the correctness of that direction is not attacked.

4. The Crown case would have had more strength, as to the issue of the probability of the outcome, if Sim had not been an employee of the firm which owned the nuts and, as the evidence showed, a delivery driver for them. Those circumstances gave rise to the opportunity of stealing nuts without breaking in. This is not to say, however, that a break-in was unlikely. The judge suggested to the jury that "to get a large quantity of cartons out of that factory it would be highly unlikely that you could do that during ordinary business hours". This direction was criticised on behalf of the appellant, whose counsel argued that Sim could well have committed the offence in the course of his employment. But the jury was not, in my opinion, obliged to accept that view of the matter. It was open to them to conclude that the means Sim would use to steal the nuts would not necessarily be confined to stealing in the course of employment and that there was a likelihood that he would, as he did, decide to break in and steal. One advantage of doing so, rather than stealing in the course of employment, might well have been that the latter course could create a risk that the resultant deficiency in stock would be noted as having coincided with the presence of Sim.

5. It is my opinion that the question whether the breaking, entering and stealing was a probable consequence of the counselling was a matter for the jury and that it was open to the jury to decide that factual issue in favour of the Crown.

6. The second ground argued was that the jury should have been told that on the charge of breaking, entering and stealing they could convict of stealing only: Tognolini [1983] 1 Qd R 99.  Counsel who appeared below for the appellant did not ask for the alternative verdict to be left, nor did he complain of its not having been left.  In Short, Grealey and Plint (1928) St R Qd 246, as here, the charge was of breaking, entering and stealing but the judge did not tell the jury that they could convict of stealing only.  It was said that:

"On the indictment as it stood, for breaking and entering and stealing, it was open under s 575 of the Criminal Code for the jury to find the prisoners or some of them guilty of stealing.  That view, however, was not presented.  The case was left to them as burglary or nothing.  We think that this omission is, in itself, sufficient to amount to a miscarriage of justice, and necessitates ordering a new trial". (249)

After referring to that and other authorities, this Court held in Rehavi [1998] QCA 157; [1999] 2 Qd R 640 that, where the charge was one of doing grievous bodily harm with intent to do grievous bodily harm, the jury should have been told that they could convict of grievous bodily harm simpliciter.  The Court referred to the evidence and continued:

"In the light of that evidence it was wrong not to inform the jury that they could convict of the lesser offence if they were not persuaded beyond a reasonable doubt of the appellant's mental state at the time, notwithstanding the tactical decision taken by the appellant below and which the prosecution was content to adopt.  There is a public interest in a fair trial and a jury ought to be permitted to return any verdict available on the evidence if that is consistent with justice to the accused.  To shut the jury out from the lesser verdict compromised the verdict given.  There was, in our view, a real risk that the jury, being persuaded that the appellant had inflicted serious injury on the complainant, and without compromising their oaths, were prepared to infer the necessary intent rather than acquit him altogether.  The appellant has thereby been deprived of the opportunity of a verdict on the lesser offence". (648)

7. Rehavi is not authority for the view that the lesser verdict must always be left, but the passage cited supports the appellant's submission here.  Even assuming, as seems likely, that the failure of defence counsel who appeared below to ask the judge to direct on stealing was a tactical decision, the point is available to the appellant.  The case was one where stealing alone was well open, as appears from the discussion of the evidence above.

8. I do not understand it to be disputed that the consequence of acceptance of this argument is that a verdict of stealing should be substituted for that of breaking, entering and stealing.

9. The next ground of argument was that the jury were not entitled to convict of stealing as well as of receiving the same goods. Authorities supporting this view include Owen (1825) 1 Mood CC 96;  168 ER 1200, Coggins (1873) 12 Cox CC 517, and Perkins (1852) 5 Cox CC 554.  The simplest explanation of this line of authority is that given by Lord Campbell CJ in Perkins:

"Assuming, as I think we are bound to do, from the case submitted to us, that the prisoner was a principal in the second degree, he could not take the stolen property from himself".

That is, the basis of the rule appears to be that the same act cannot logically constitute both stealing goods and receiving them after they have been stolen.  It is for this reason that our Code in s 568 makes provision for a special jury finding that the accused stole property or received it:  s 568(8).  But the question whether a person may ever be charged with, and convicted of, both stealing and receiving the same property permits of only one answer:  yes.  There can be a double conviction, at least in the case where the stealing and receiving are separate acts, as when, A and B having stolen and stored goods, they are later taken by B to A's house for safekeeping.  A complication is that the Code says stealing is not complete until the thief actually moves the things stolen or otherwise actually deals with it by some physical act: s 391(6);  but as Hanger ACJ pointed out in Johnston [1973] Qd R 303, this provision does not say that stealing activity ceases at the time identified in s 391(6), and his Honour's approach seems to have been approved in R v Justices at Biloela; ex parte Marlow (No 2) [1983] 1 Qd R 552 at 559.

10. In McDonald [1992] 2 Qd R 634, the court had to deal with the problem of two movements of the thing stolen and whether stealing is necessarily complete after the first movement.  Williams and Cooper JJ (645) were of the view that ordinarily the stealing would continue "until the thief had deposited the thing in some place he regarded as safe".  But it is evident that a person given some of the stolen goods, during the journey to the safe place, could be convicted of receiving.  In the present case, the offence of breaking, entering and stealing was charged as having occurred on or about 5 October 1997 and the first receiving was charged as having taken place on or about the same date.  The evidence as to what happened to the goods between the theft and the first receipt is not clear enough to enable one to determine whether the stealing by Sim and Hurst could have been held to be an act separate from the receipt by the appellant.  But as to the second delivery to the appellant, three weeks after the theft, there could be little doubt on that point.

11. The only live question, then, is in my opinion whether the appellant could properly be convicted both of the theft on or about 5 October and of the receipt, said to have occurred on or about the same date. In Saliba [1973] Qd R 142, the Court of Criminal Appeal held that a conviction of receiving could stand with one of being "accessory before the fact to the theft of the same goods".  Saliba was in this position;  his convictions were upheld, and not on the basis that there were separable acts of stealing and receiving.  We were urged not to follow Saliba because the Code includes no concept of being an accessory before the fact and because of s 7(3) of the Code, which says that a conviction of counselling or procuring entails the same consequences in all respects as one of committing the offence.

12. The question here is whether the appellant could properly be charged with, and convicted of, two offences of a partially overlapping character; the appellant can argue that the delivery of the goods to his premises on or about 5 October 1997 was included in the act of stealing. A problem of this general kind is dealt with by the High Court in Pearce [1998] HCA 57;  (1998) 194 CLR 610.  Pearce was charged with, to put it simply, first, inflicting grievous bodily harm with intent and, secondly, breaking and entering a dwelling house and there inflicting grievous bodily harm.  The act causing grievous bodily harm relied on was the same, as to both charges.  It was argued that Pearce could not be convicted of both these offences because they related to "the same or substantially the same set of facts" (611).  The contention was rejected.  The High Court pointed out that "a single series of events can give rise to several different criminal offences to which different criminal penalties attach" (615);  see also 618.  It was held that there was no abuse of process in charging both the counts because the offences –

"... are different (and different in important respects) [and so] the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose". (621)

13. Here, the acts of counselling relied on to implicate the appellant in the theft committed by the others do not overlap with the facts relied on to show receiving; the overlap, if any, relates to the actions of the "actual" thieves: see Davis [1989] 1 Qd R 171 at 172/42.  It is this point which is I believe the reason for the emphasis in Saliba on the circumstance that the offender there was what would once have been called an "accessory before the fact";  his own criminal act was arranging for the theft to be committed, by others.  And there is no logical inconsistency in holding that the appellant both counselled the theft and received the goods after they were stolen.  It is my opinion that the decision in Saliba is correct and should be applied in this case where it is, in my respectful opinion, apparent that the prosecutorial discretion in framing the counts was properly exercised, as to both counts of receiving.  The question whether, under the authority of Pearce, one of the "actual"  thieves could ever be charged with both stealing and receiving does not arise here.

14. This ground of appeal therefore fails.

15. The next point taken by the appellant's counsel, in his helpful and concise argument, was that the judge made unfortunate remarks which vitiated the trial. As a defence witness, Hurst (mentioned above) gave evidence that he had pleaded guilty to a charge of receiving nuts and was serving a term of imprisonment for that offence. He said that he had pleaded guilty to the charge on the basis that he took part in a delivery of the nuts to the appellant, being then accompanied by Sim mentioned above and a person identified as "Mucka". The transcript then contains the following:

"Was there any honest person amongst that group?--  That's a hash [sic] word to say.

Well, was there an honest person amongst you?-- Yeah, Robbie". 

16. "Tha­t group" meant Sim, "Mucka" and Hurst.  It was pointed out for the appellant the witness took the question to include the appellant, "Robbie".  The judge's question may be thought to have been gratuitous, particularly as it was repeated.  But it is difficult to see that it could have any substantial effect on the jury's deliberations.  Both Sim and Hurst were admittedly guilty of offences of dishonesty in relation to the nuts, Sim having pleaded guilty to breaking, entering and stealing and having committed many other offences;  Hurst had also previously been convicted of offences of dishonesty.  All these convictions were brought out before the jury.  Counsel for the appellant who appeared below asked that the jury be discharged on the basis of the judge's questions quoted above;  counsel said that the judge had made a "comment ... which could well have been seen by the jury to include my client ...".  That contention is supported by Hurst's reaction to the question, but it seems clear from the transcript that the witness misunderstood the judge's question, the group spoken of being precisely identified in the immediately preceding question, which was:

"This is the group of you.  There was you, Sim, Mucka?"

17. The judge's observation may be open to criticism on the basis that there was no evidence that "Mucka" had ever been convicted of any offence of dishonesty. On the other hand, he was participating in the delivery of stolen nuts. It was suggested by counsel below that the questions the judge asked could well have been interpreted as "showing an attitude" on the judge's part and that appears to me to be correct. On the whole, however, the proper conclusion is that these interventions by the learned primary judge were not of sufficient importance to vitiate the trial; the jury must surely have held the same opinion of the three spoken about as that which the judge implied, namely that they were dishonest people.

18. The conclusion, then, is that the conviction of breaking, entering and stealing cannot stand and must under s 668F(2) of the Code be replaced by a verdict of stealing alone.

Sentence

19. The substitution of the verdict just referred to necessitates reconsideration of the sentences imposed. Because the conviction of breaking, entering and stealing was one under s 421(2) of the Code, being an offence listed in the schedule of the Penalties and Sentences Act 1992, a cumulative sentence for that offence was mandatory, under s 156A(2) of the 1992 Act.  The appellant was convicted in 1992 of trafficking in a dangerous drug and (after an appeal against the initial sentence by the Attorney-General) sentenced to seven years imprisonment.  He was released on parole on 30 May 1996, having served three years and seven months.  Because of his conviction of the offences with which we are concerned he became liable to serve the balance of the seven years,  i.e. three years and five months (s 187, Corrective Services Act 1988).  It must be kept in mind that under s 190(2) of that Act the Queensland Community Corrections Board has power partly to relieve the appellant of the prima facie obligation to serve that three years and five months;  there is no information as to the likelihood, or otherwise, of that occurring.

20. In addition to the drug offences just discussed, the appellant had been convicted from 1966 to 1990 of a number of relatively minor offences all punished by fine. He is 54 years of age.

21. In his sentencing remarks, the learned primary judge noted that the appellant had showed no remorse, that the property involved was worth about $11,000, that there was an "air of professionalism about your activities", and that the appellant was on parole when he committed the offences. The result was that there was a sentence of 3 years imprisonment, with the consequence that the appellant became liable to serve a total of 6 years and 5 months imprisonment.

22. Counsel for the appellant criticised the judge's remark that there was an "air of professionalism" and described the offences as opportunistic. He said that the amount of money involved was not very large and that a sentence of 3 years for an isolated offence of dishonesty of this kind is too harsh. The three offences were part of the one criminal scheme involving the stealing of the nuts and receiving of them (in two instalments) by the appellant. It is not clear to me that the method adopted shows professionalism; surveillance cameras in the appellant's own premises provided evidence of their commission.

23. It is not obligatory to make the sentences for these offences cumulative upon those for the drug offences, but in my opinion it is appropriate to do so. I would set aside the sentences imposed below and impose sentences of 18 months imprisonment.

Conclusion

24. In my opinion the conviction of breaking, entering and stealing cannot stand, because the jury were not told that they could return the alternative verdict of stealing. That verdict must be substituted and the sentences imposed reconsidered, resulting in cumulative sentences of 18 months for each of the offences.

25. I would make the following orders:

1. appeal against conviction on count 1 allowed and a conviction of stealing substituted for that of breaking, entering and stealing;

2. application for leave to appeal against sentence granted and appeal allowed, replacing the sentences of 3 years imprisonment by concurrent sentences of 18 months imprisonment, imposed cumulatively upon the sentences imposed on the appellant by this Court in 1993.

26. DAVIES JA:  I have had the advantage of reading the reasons for judgment of Pincus JA and Thomas JA.  They enable me to state my conclusions in summary form.

27. On the first ground of appeal argued I agree with the conclusion of their Honours that the combined effect of s 7(1)(d) and s 9 of the Criminal Code was that it was open to the jury to convict of breaking, entering and stealing on the basis that the appellant counselled that offence.

28. On the second and third grounds I also agree with them that the jury should have been told that, on the charge of breaking, entering and stealing, they could convict of stealing only; and that the failure to do so constituted an error requiring the conviction for breaking, entering and stealing to be set aside.

29. The ground that his Honour was wrong in directing the jury that they were entitled to convict of stealing and receiving the same goods, has caused me more difficulty. R v Saliba^[1] decided that a person guilty of stealing under s 7(1)(d) could also be guilty of receiving in circumstances such as this.  The appellant submitted that that decision was wrong, primarily because it ignored the effect of s 7(3) which provides:

"A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing that offence."

30. It was submitted that that provision, in effect, deemed a counsellor or procurer to be the thief; and a person cannot be both the thief and a receiver of the same goods. In the circumstances of this case the second part of that proposition may be accepted.^[2]

31. In my view none of s 7(1), s 7(2) or s 7(3) deems a counsellor or procurer to be the thief, the person "who actually does the act ... which constitutes the offence" or, for that matter, an aider or enabler of that person. Section 7 is premised on the assumption that an offence has been committed,^[3] in this case the theft of nuts by Sim.  Section 7(1) then deems persons who would previously have been called principals in the first or second degrees and persons who would have been called accessories before the fact to have "taken part in" committing the offence so committed.  It is this provision, not s 7(3), which, in my opinion, comes closest to supporting the appellant's argument.  But it does not deem those other than the thief to be the thief.  And as I shall attempt to show, the purpose of the provision is not to achieve that consequence.

32. Sections 7(2) and 7(3) are, in my opinion, more plainly procedural in nature. Section 7(2) simply permits a counsellor or procurer to be charged either with counselling or procuring or, because of the operation of s 7(1), with committing the offence. And s 7(3) provides that if the former rather than the latter course is taken, the consequences of a conviction are nevertheless the same. Moreover s 7(2) and s 7(3) recognize counselling or procuring (as opposed to aiding or enabling) as a separate offence from, but with the same consequences as the principal offence.

33. The last point made in the previous paragraph can best be seen from Sir Samuel Griffith's Draft Code, s 8 and s 9 of which, in a modified form, together became s 7.  Those sections provided:

"Principal Offenders.

8.When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –

1. Every person who actually does the act or makes the omission which constitutes the offence;

2. Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

3. Every person who aids another person in committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.

Accessories before the Fact to Offences.

9.Any person who counsels or procures any other person to commit an offence which is actually committed after such counsel or procurement, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself committed the offence.

He may be charged either with himself committing the offence or with counselling or procuring its commission.

... "

It can be seen that the second paragraph of s 8 and s 9 make a counsellor or procurer guilty of an offence "of the same kind", as the principal offence, "liable to the same punishment";  but it nevertheless permits him to be charged with committing the offence.

34. That a counsellor or procurer could be indicted and punished as though he were a principal in the first degree reflected the law as it existed before the Code, even as to felonies.^[4]  The purpose of legislation which provided this was to ensure that, contrary to the common law, a counsellor or procurer could be indicted and punished even if the principal offender was not.^[5]

35. Under legislation in England which had that effect the law was that a person could be convicted of receiving who was also an accessory before the fact to the larceny. Section 1 of the Accessories and Abettors Act 1861, which re-enacted s 1 of the Criminal Procedure Act of 1848, provided:

"Whosoever shall become an accessory before the fact to any felony, whether the same be a felony at common law or by virtue of any Act passed or to be passed, may be indicted, tried, convicted, and punished in all respects as if he were a principal felon."

36. In R v Hughes,^[6] a case decided under the Criminal Procedure Act, Erle CJ, giving judgment for the court said that there was no inconsistency in saying that the offender was guilty of being an accessory before the fact and that he received the goods knowing them to have been stolen.  The circumstances there were almost identical to those here.  His Lordship said, in respect of that Act, that "the old law which made the conviction of the principal felon a condition precedent to the conviction of the accessory, is done away with by that enactment".

37. That case was followed in R v Goodspeed.^[7]  It was accepted in that case that neither the actual thief nor an aider or abettor could be convicted of receiving, reference being made to R v Coggins.^[8]  However Lord Coleridge said "... but an accessory is not the actual thief, and there is no inconsistency in his being also the receiver".

38. R v Froggett,^[9] the case primarily relied on by the court in Saliba, was to similar effect.  There it was said:

"Those who counsel or procure the commission of a crime, but are not at least constructively present upon its commission, are accessories before the fact and are not principals.  That position has not been altered by the various statutes which have removed certain practical differences which existed in the treatment at trial of principals and accessories.  Of those statutes the best known is the Accessories and Abettors Act, 1861, which by section 1 provided as regards felonies that:  'Whosoever shall become an accessory before the fact ... may be indicted, tried, convicted and punished in all respects as if he were a principal felon.' "^[10]

The court held in that case, in effect, that s 1 of the Accessories and Abettors Act did not abolish for all purposes the distinction between accessories before the fact and principals.

39. It is plain that the Accessories and Abettors Act, like its predecessor, was intended only to ensure that, for the purpose of indictment, trial, conviction and punishment, the practical consequences for a principal offender and an accessory before the fact should be the same;  in particular that an accessory before the fact should not escape punishment merely because the principal offender does.  The legislation in force in Queensland at the time of enactment of the Criminal Code, reproduced the terms of the Accessories and Abettors Act.

40. In a side note to s 9 of the Draft Code, Sir Samuel reproduced this legislation and also the relevant legislation with respect to summary offences.  The provisions of the Draft Code already set out appear to do no more than restate those provisions in language which is more modern and more appropriate to a code.

41. Nor do there appear to be any substantive changes in this respect between the Draft Code and the Code as enacted.  Those that are made appear to be more in form rather than substance.^[11]  I would conclude, therefore, that s 7, in its application to counsellors and procurers, was intended to ensure only that they should be made liable in the same way and to the same extent as principal offenders.

42. It follows, in my view, that Saliba was correct and should not be overruled.

43. It was submitted for the appellant on this appeal that the counts of stealing and receiving were joined in one indictment pursuant to s 568(6) of the Code and that subsection appears as a side note to the count of receiving in the indictment.  However that subsection is intended to enable the bringing of a charge against a person where, relevantly, that person is either the thief or the receiver of stolen property and the prosecution is not sure which of those it can establish.  It is complemented by s 568(8) which enables a jury, where it is satisfied that an accused person either stole or received property but is unable to say which, to so find, enabling the entering of a conviction in that event.  This was never a case of that kind;  it was one in which the prosecution sought to prove that the appellant relevantly counselled or procured the stealing of the nuts and also received them knowing they were stolen.  Those charges were properly joined in one indictment pursuant to s 567.

44. As to the final ground of appeal against conviction, relating to some remarks made by the learned trial judge which, it was submitted, vitiated the trial, I agree with the reasons of Pincus JA.

45. I also agree with his Honour as to the sentence. It follows therefore that I agree with the orders which he proposes.

46. THOMAS JA:  The appellant was convicted on all three counts upon which he was indicted.  Shortly stated, these consisted of:

1. Breaking entering and stealing a quantity of nuts on 5 October 1997;

2. Receiving a quantity of nuts on 5 October 1997; and

3. Receiving a quantity of nuts on 26 October 1997.

It will be convenient to refer to the charges as counts 1, 2 and 3 respectively. 

47. The evidence showed that one Sims broke and entered his employer's premises and stole about 80 boxes of nuts on 5 October and delivered some of them to the appellant's premises later the same day. He stored the remaining boxes at a friend's house and delivered them to the appellant's premises on a later occasion namely 26 October. The appellant was said to be guilty of breaking entering and stealing the nuts because –

1. He procured the commission of that offence under s 7(1)(d) of the Code; or

2. He counselled the commission of that offence, and was guilty of it under the combined effect of ss 7(1)(d) and 9 of the Code.

Each allegation was allowed to go to the jury as a basis for conviction on the first count.

48. The first question that arises is whether the evidence was sufficient to allow the jury to convict the appellant on count 1 on one or other of these bases.

49. The main evidence supporting such a finding was that of Sims who described a conversation with the appellant a few days before he stole the nuts. Sims told the appellant he was working at a nut factory selling nuts. Sims identified to the appellant some of the types of product that were produced at the factory. The appellant told Sims that he would give him half price for whatever he "got" from the nut factory, and that whatever Sims got he would get rid of for him. Sims told the appellant that he could "knock them off" and the appellant replied that he (presumably Sims) could get half price for whatever they were worth. The following weekend Sims broke and entered the factory and stole 80 cartons of nuts and took roughly half of them to the appellant the same day, for which he received payment of $1,000 (said to be about half price for the product). Having been informed by the appellant that he would "take whatever we could get" Sims delivered the balance to him a few weeks later.

50. There can be no doubt as to the sufficiency of the case against the appellant of both counselling and procuring the stealing of the nuts. But was the evidence sufficient to justify a similar conclusion in relation to the counselling or procuring of breaking entering and stealing?

51. Different considerations apply to counselling on the one hand and procuring on the other. To establish counselling, the Crown has the benefit of the extended application of s 9 of the Code. I shall firstly consider the question of procuring.

Procuring of breaking entering and stealing

52. At it strongest the appellant's procurement was that Sims should "get" the nuts and "knock off" the nuts. Presumably it did not matter to the appellant how Sims got them from his employer. The learned trial judge was in my view correct when he told the jury that the word "procure" means "that you brought something about by endeavour, or you recruited somebody to commit the offence". I do not suggest that the word needs further explanation in a summing up, but agree with Sugerman J's observation that "the meaning in general of the word 'procure' … imports effort, care, management or contrivance towards the obtaining of a desired end".^[12]  I do not think that the appellant's lack of concern as to how Sims might go about stealing the nuts is sufficient to make the appellant a procurer of the breaking and entering any more than it would suffice to make him guilty of robbery had Sims chosen to bail up a fellow employee and obtain the nuts by threats of violence.  To use the learned trial judge's test, I do not think that the evidence permits it to be said that the appellant recruited somebody to commit the offence of breaking entering and stealing.

53. I therefore consider that it was an error to direct the jury that the appellant could be convicted of breaking entering and stealing as a procurer of that offence. This error would be sufficient to justify setting aside the conviction on the first count.

Counselling the commission of breaking entering and stealing

54. In the absence of s 9, the same result would follow on the allegation of counselling, as it could not be said that the appellant counselled commission of the offence of breaking entering and stealing. However s 9 provides:

"(1)When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.

2. In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by the other person."

55. This means that the appellant could be found liable as a counsellor under s 7(1)(d) if the facts constituting the offence actually committed were a probable consequence of carrying out the counsel. This raised a factual question for the jury. There was in my view sufficient evidence to permit such a finding. This included the contemplation of a large quantity of nuts being taken and the circumstance that this might be thought to be difficult to achieve during ordinary business hours. Other arguments are available, but in my view there was a case that could properly go to the jury that the appellant was guilty of counselling the breaking entering and stealing under the combined effect of ss 7(1)(d) and 9.

Alternative verdict of stealing not left to jury

56. The alternative verdict of stealing was not left to the jury. This seems to have been a complete oversight. For the reasons given by Pincus JA which I have had the advantage of reading I agree that despite the absence of submissions from defence counsel seeking that such an alternative be left to the jury, the failure to do so constituted an error and that that error is sufficient to require the conviction of breaking entering and stealing to be set aside.

Substitution of verdict of stealing

57. Two errors have been identified which require the verdict of guilty of breaking entering and stealing to be set aside. The evidence however of both counselling and procuring the stealing was overwhelming. I understand both defence counsel and counsel for the Crown on the appeal to have accepted that in the event that the conviction of breaking entering and stealing is set aside it is appropriate that this court should substitute a verdict of guilty of stealing.^[13]

Can the appellant be guilty of both stealing and receiving the same goods?

58. It is well established at common law that the actual thief or a person guilty of larceny as a principal in the first or second degree (that is to say in terms with which we are more familiar, a doer an aider or an enabler)^[14] may not be convicted of both stealing and receiving the same goods.^[15]  In this context it is often said that the offences of theft and receiving are mutually exclusive.^[16]

59. In recognition of this, various statutes in Australia (including the Criminal Code) have made provision for the bringing of charges of stealing and receiving in separate counts on the one indictment so that they may be tried together as alternative counts.^[17]

60. In the present case counsel for the appellant submitted that the counts were joined in the one indictment pursuant to s 568(6) of the Code, and there was no contrary submission from the Crown.^[18]  Section 568(6) provides:

"Charges of –

1. breaking and entering a place and stealing therein any property; and

2. stealing the property; and

3. receiving the property, or any part thereof, knowing it to have been stolen;

or any 2 of such charges may be joined in the same indictment, and the accused person may, according to the evidence, be convicted of the offence referred to in paragraph (a) the offence referred to in paragraph (b) or the offence referred to in paragraph (c)."

61. Plainly those charges are assumed to be alternatives, because the right to convict upon them is expressed disjunctively. There are sometimes further special provisions such as s 568(8) which permit a special verdict when the jury is unable to say which of those offences was committed by the accused, in which case the judge is required to enter a conviction for the lesser offence.^[19]

62. The mutual exclusivity to which I have referred does not exist however at common law when a person is guilty of theft as accessory before the fact and also receives the goods the subject matter of the theft.^[20]  This rule was held by the Court of Criminal Appeal (Hanger CJ with whom Wanstall SPJ and Stable J agreed) to be applicable to a counsellor or procurer under s 7(1)(d) of the Code.^[21]  The accused person in that case, Saliba, was charged simply with receiving.  The evidence on which the Crown relied, namely that of the thief, showed that Saliba not only received the goods knowing them to have been stolen, but that he had made prior arrangements with the thief for them to be stolen.  The question was whether this fact precluded Saliba from being convicted of receiving. 

63. Surprisingly there is no reference in Saliba to s 7(1) or s 7(3) of the Code, or their then equivalent.

Under subsection 1 a counsellor or procurer "is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it".

Section 7(3) provides:

"A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence."

Those subsections would seem to render immaterial any distinction in the present context between an accessory before the fact and a principal in the first or second degree.  More specifically it makes it impossible to maintain any different effect for a conviction of an offender under s 7(1)(d) and a conviction of any other principal offender under the other parts of s 7.  The effect of s 7(3) needed to be addressed in Saliba if that decision was to be justified.  It was not.  I can see no answer to the point and none has been offered here.  Section 7(1) and s 7(3) simply seem to have been overlooked in Saliba.  I conclude that that decision was given per incuriam and that it should no longer be followed.

64. It follows that under the Code a person convicted of stealing by reason of s 7(1)(d) is entitled to invoke the same protection of mutual exclusivity between stealing and receiving the same goods as any other person who becomes a principal offender under s 7 of the Code.  Since preparing these reasons I have had the advantage of reading the reasons proposed by Davies JA.  I respectfully disagree with the suggestion that s 7 does not deem a counsellor or procurer to be the thief, or as I would prefer to put it, a thief.  If the offender is charged with and convicted of stealing (as is the case here) I find it impossible to hold that the law does not deem him to be a thief of the goods, or to hold that he is disentitled to the same protection as other s 7 offenders against conviction of stealing and receiving the same goods.

65. This divergence from the common law is the express product of the Code, and it does not in my view produce any particular inconvenience in the administration of the criminal law.  On the contrary, it has wrought a simplification.  There is no pressing reason why a counsellor or procurer should be able to be convicted of both receiving and stealing while all other principal offenders under s 7 can be convicted of only one or other of those offences.  Saliba is in my view flawed and ought to be overruled.

66. Of course the protection against conviction of both stealing and receiving is not a universal principle. The possibility must be acknowledged that a thief may dispossess himself or herself of property and subsequently be guilty of a further offence of receiving it. The immunity against double conviction is essentially limited to cases where the offender obtains possession of the goods by means of the theft. Presumably charges involving subsequent and separate criminal acts might be joined under s 567. The essential point resulting from s 7(3) of the Code is that a person who counsels or procures the stealing of property is in the same position in all respects as the principal thief, and cannot be guilty of a separate offence of receiving that property when his possession is the direct consequence of the counselling and procuring.  It seems to me that the fact that Sims took the proceeds of the stealing to the appellant in two separate deliveries is immaterial.  The appellant's receipt of the stolen goods was the direct consequence of his counselling and procuring.  No question arises here, as it did in Gilson,^[22] of doubt as to whether the appellant was guilty of stealing, or of inability to say which of the two offences was committed by the appellant.  There is no occasion in the present case for resolution of any alternative under s 568(8).  The appropriate verdict in the circumstances is the substituted verdict of stealing.  The convictions on the two counts of receiving cannot stand with it and they should be set aside.

67. In deference to the learned trial judge, it is recognised that he was bound to follow Saliba and to recognise the possibility of two offences having been committed.  But Saliba in my view never was authority for the obtaining of dual convictions of stealing and receiving in an indictment under s 568(6), which that section clearly precludes. Saliba was only authority for the proposition that a conviction could be sustained for receiving even if the evidence showed that he counselled and procured the stealing.^[23]

Orders on appeal

68. The appeal against conviction should be upheld. On the first count the verdict of guilty of breaking entering and stealing should be set aside and in its place there should be substituted a verdict of guilty of stealing; on the second and third counts the convictions should be set aside.

Sentence on substituted verdict

69. The application for leave to appeal against sentence is now unnecessary. The convictions on all three counts have been set aside, and the sentences must go with them. The application for leave to appeal against sentence should formally be dismissed. But this court has substituted a conviction of stealing on the first count, and it is now necessary to substitute a sentence appropriate for that substituted conviction. In this situation s 668F(2) provides that when a court has substituted a verdict it may "pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity". In my view this court exercises that power in the course of the original appeal, not upon any application for leave to appeal against sentence.

70. An automatic consequence of the removal of the conviction of breaking entering and stealing is to avoid the application to the appellant of s 156A of the Penalties and Sentences Act, under which a sentence for that offence would necessarily be ordered to be served cumulatively with any other term of imprisonment he was liable to serve.  However, as Pincus JA has pointed out, the fact that he offended whilst on parole and was sentenced to a term of imprisonment ipso facto cancelled his parole and rendered him liable to serve the balance of his earlier sentence, namely three years and five months.^[24]  It is impossible to tell to what extent if any the Corrective Services Board will relieve the applicant from his liability to serve that remaining three years and five months.  The court has the power to impose either a concurrent or a cumulative sentence at this stage.  The uncertainty of the concluding date of the existing sentence makes the imposition of a cumulative sentence something of a lottery.  At the same time it would be inappropriate to impose a sentence that might be entirely concurrent.

71. In these circumstances the best solution would seem to be the imposition of a conservative cumulative sentence. It is unnecessary to repeat the circumstances concerning the nature and seriousness of the stealing in question. It amounted to the commissioning of a crime for commercial gain, and in the context of stealing offences it amounts to moderately serious conduct by a man with a past history of a very serious drug offence and a number of other fairly minor offences. In all the circumstances I would impose a sentence of 12 months imprisonment cumulative upon the sentence which he is now serving.

Orders

72. The appeal should be allowed. The verdict of guilty of breaking entering and stealing should be set aside and in its place there should be substituted a verdict of guilty of stealing; the verdicts and convictions on the two counts of receiving should be set aside; further order that on the substituted verdict of guilty of stealing the appellant be convicted and sentenced to 12 months imprisonment cumulative upon the sentence which he is now serving. The application for leave to appeal against sentence should be dismissed.