R v Pucci[2013] QCA 390

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  I agree with Muir JA’s reasons for refusing the application to adduce further evidence and dismissing the appeal against conviction.

2. MUIR JA:  The appellant was convicted of entering premises by breaking and stealing on or about 10 March 2010 after a one day trial in the Toowoomba District Court.  He appeals against his conviction on the grounds discussed below.

The evidence

3. There were two prosecution witnesses, Mr Takagaki and Senior Constable Ford.  The appellant gave evidence in his own case.

4. Mr Takagaki, the owner/operator of Miller’s Fruit Barn, gave evidence to the following effect.  On 10 March 2010, Mr Takagaki and employees of the business followed their normal procedures before leaving the premises for the day.  All of the monies from the three tills in the shop were placed in the safe and the premises were locked.  The safe door was “[d]efinitely closed”.  His normal practice was to lock the safe but by the time of trial he had no actual recollection of having done so.

5. When he arrived for work at the Fruit Barn at approximately 3.30 am on 11 March 2010, the front glass door was ajar and the glass in the bottom of the door had been broken leaving a large hole.  He gained access through another door.  The stock in the shop appeared to be undisturbed but the door of the safe located in an office at the rear of the shop was open.

6. Inside the safe was a piece of white paper on which there was a notation of the float monies for each of the three tills. Another piece of paper listed the change monies kept in the safe by Mr Takagaki for placement in the tills.  He noticed what appeared to be a blood smear that he had not noticed previously on the first described piece of paper.

7. Asked, “How much money was in the safe”, he replied, “There would’ve been 8,000 or something like that”.

8. Senior Constable Ford attended the Fruit Barn on the morning of 11 March 2010 and took photographs of the crime scene.  He arrived “perhaps a fraction before” 5.00 am.  He noticed that although there was “quite a large hole” in the front door, most of the broken glass had been removed.  The part of the piece of paper in the safe on which there appeared to be the largest blood smear was sent off for laboratory testing.

9. It was admitted by the defence that the blood sample located in the safe was correctly tested and subsequently identified as the blood of the appellant.

10. The appellant said he was living in Toowoomba on 10 March 2010.  In the afternoon he went to a bowls club with his female partner and had a couple of drinks.  He then purchased a bottle of bourbon, which he took to a park and consumed with some people who chanced by.  He obtained another bottle of bourbon and took it back to the park before going to the house of one of the people with whom he was drinking.  He continued to consume alcohol there.  He decided to leave for home at around midnight.  After unsuccessfully attempting to phone an unidentified person or persons, he started to walk home.  At about the time he reached the Fruit Barn, he became frustrated and angered at being unable to contact anyone on his phone.  He said, “I’d punched a wall, walked a bit, and all of a sudden I’d put my foot through the window – a window, which I now know as Millers Fruit Barn”.  The hole he made in the door was about 10 cm and round; much smaller than the one depicted in Senior Constable Ford’s photographs.

11. The appellant then walked off past the courthouse and police station. A little later, he leant on a street light and scratched his foot. He noticed that there was blood on his hand and saw that he had cut himself. He was drunk but “not excessive (sic) drunk” to the point of not remembering things. He denied entering the Fruit Barn and taking any money from the safe. He was unable to provide the name of the person to whose house he had gone before setting out to walk home. He described him as not being a mate but “a familiar face”. Asked whose phone numbers he had tried to call, he said, “It was my girl’s – her – our housemate; she had a vehicle too. There would’ve been other mates but they worked so they had their phone off”. He was asked, “And these were people you’d think would come and give you a lift?” to which he responded, “Yes”.

12. The appellant described the shoes he was wearing as “Nike TNs”, a running shoe. The cut on his foot was “just like a thin cut; it wasn’t deep … It, like, scratched off skin and it’s, like, left a scar where the skin was scratched off”. It did not need stitches and he accepted that blood from the cut “hadn’t even soaked through [his] sock”.

13. It is now convenient to turn to the grounds of appeal.

Ground (a) – in all the circumstances the conviction was unreasonable

Ground (b) – the jury’s verdict was contrary to the evidence, unsafe and unsatisfactory

14. The appellant contended that, given the entirely circumstantial nature of the prosecution case, a reasonable jury could not exclude beyond reasonable doubt a reasonable hypothesis consistent with the innocence – namely, that all the appellant did was to break the shop window.  There was no suggestion that the door of the safe had been forced.  It was not suggested by the prosecution that anyone who broke into the premises could have gained access to one of the three keys to the safe.  The logical possibilities, therefore, were either that Mr Takagaki left the safe unlocked or, alternatively, that someone with a key had unlocked and opened the safe and taken the money.

15. Mr Takagaki had told police in August 2010, “On this night, I can recall locking the safe with my safe key”.  He resiled from that in his evidence on the trial saying, in effect, that he was 99 per cent sure that he had locked the safe.  It follows that, even on the prosecution case, there was only a one per cent possibility – or at least a very small possibility – that it could have been the appellant who committed the offence.  In these circumstances, the jury should have had a reasonable doubt and should have found the appellant not guilty.

16. A question for this Court is whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.^[1]  The jury were entitled to reject the appellant’s version of events.  It was bereft of corroboration.  If true, the appellant was the victim of a remarkable chain of events.  He broke a small part of the front door of the Fruit Barn on the night on which someone else broke into the premises through the same door and stole from the safe.  The miscreant, in removing broken glass from the floor of the shop, for reasons inexplicable, managed to get the appellant’s blood on his fingers and leave some of that blood on a sheet of paper inside the safe when removing the money it contained.

17. On the appellant’s version, it is difficult to see how the appellant’s blood could have got from the inside of his shoe and foot onto the broken glass having regard to the modest nature of the injury and the evidence that blood was not even in his sock. On the other hand, if the appellant’s blood was on the glass debris, he would have had a good reason to dispose of it. That would explain how the appellant’s blood got onto his hand and was transferred to the paper in the safe.

18. The defence did not contend that the premises had not been broken into or that money had not been stolen from the safe. The evidence of Mr Takagaki in this regard was unchallenged.  In summing up, the trial judge said:

“So the real question in this case is not so much whether there was an entering [of] the premises by breaking and stealing but whether [the appellant] was the person who did it, and that really comes down to what you make of this evidence of the blood inside the safe.”

19. Defence counsel did not seek any redirection in this regard.

20. The trial judge gave a conventional direction in relation to circumstantial evidence and, except as mentioned later, there is no contention that there was any error in respect of this or any other direction given by her.

21. I conclude for the above reasons that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.  This ground has not been out.

Ground (d) – the prosecution did not lead any evidence to prove that the premises broken into were the premises of Takagaki Pty Ltd or that a sum of money was stolen, as alleged in the indictment

22. The appellant’s argument was to the following effect. The offence alleged on the indictment was that the appellant “entered the premises of TAKAGAKI PTY LTD and stole a sum of money in the premises and [the appellant] gained entry to the premises by a break”.

23. The evidence of ownership primarily consisted of the following questions and answers in evidence-in-chief:

“Mr Takagaki, you are currently the owner/operator of Millers Fruit Barn; is that correct?-- That’s correct.

What’s the address of this premises?-- 125 Herries Street.

And how long have you been in that capacity at that store?-- Since probably 2008.  I think about October 2008.”

24. In the course of argument after the jury had retired for lunch, the trial judge queried whether the prosecution had “formally proved the incorporation of the company”.  Defence counsel said, “I doubt very much I’d challenge that, but perhaps if there is a certificate of incorporation or something, I can see that”.  The prosecutor observed that there would be no difficulty in that and the trial judge remarked, “You can sort that out over lunch”.  Defence counsel replied, “Yes.  I’m sure it’s not an issue, your Honour”.

25. After the luncheon adjournment and after concluding his summing up, the prosecutor asked that an original of a business name extract showing that Miller’s Fruit Barn was a business “run by” Takagaki Pty Ltd be marked for identification. Defence counsel, when asked by the trial judge if he had seen the document, said that he had and that “it’s not an issue in the case”.

26. The appellant relied on the following statement by Griffith CJ in Trainer v The King:^[2]

“The law of England, and it is the same here, requires the ownership of the property to be laid in the indictment and proved.  There is ample power of amendment, but in the absence of amendment it must be proved as laid.”

27. After referring to Trainer, Williams JA (with whose reasons Cullinane J agreed) said in R v McKiernan:^[3]

“Trainer, McCoy and Hempenstall were all referred to by Harris J. in his judgment in Anglim & Cooke v. Thomas [1974] V.R. 363 at 374.  Those cases appear to be cited in support of the proposition that ownership of the property stolen should be proved.  Again I do not find the case of particular assistance here.  As appears from the reasons at p. 373 the critical fact was that the ‘defendant was charged with breaking and entering a particular shop of a particular person and stealing a quantity of drugs alleged to be the property of a particular person’.  The learned judge went on to say that the ‘prosecution led no evidence at all to establish these facts.  … There was no evidence at all … that the goods which were stolen were the property of …’.  That was regarded as a serious omission in the case for the prosecution.  Relevantly for present purposes the omission was in failing to prove in that common law matter the equivalent of ownership for s. 391(2)(a) of the Code.

Finally reference was made to R. v. O'Brien (1981) 35 A.L.R. 473, a decision of the Court of Criminal Appeal of Western Australia.  There the Criminal Code had a similar provision to our s. 391 save that there was no subs. (7).  The indictment laid ownership of the drugs allegedly stolen in the ‘Repatriation Commission of the Commonwealth of Australia’, however Crown counsel conceded that no evidence had been led as to ownership of the drugs.  It was pointed out that given the terms of the indictment it was necessary that the ownership of the property as alleged therein be proved.  That proposition cannot be doubted, but the reasoning does not support the contention of the appellant here.”

28. These passages from the reasons of Williams JA must be understood in the light of the reasons of Davies JA, with which Williams JA and Cullinane J agreed.

29. The respondent relied on Lodge v Lawton,^[4] in which the Court rejected an argument that the lack of proof of the incorporation of the complainant company and its ownership of cheques and money was a “fatal defect” given that the property the subject of the charge was identifiable and that the ownership of the property was not relevant.  In referring to the position in Great Britain, the Court said:^[5]

“In Hibbert v. McKiernan, [1948] 2 K.B. 142; [1948] 1 All E.R. 860 in which the defendant was charged before justices with stealing eight golf balls which had been abandoned by their former owners and which were alleged in the information to be the property of the secretary and members of the golf club, a Divisional Court held that the defendant was rightly convicted notwithstanding that the question of the true ownership of the golf balls was not resolved.  Lord Goddard, C.J. said (at K.B. p. 151): ‘… at the present day allegations concerning the ownership of stolen property are, except in a few exceptional cases, treated as immaterial.’

Humphreys, J. said (at K.B. p. 152): ‘In such a case as the present it is not necessary to allege or prove who is in law the owner of the goods, indeed it is not essential to name any person as the owner of the goods in an indictment for larceny though it is the practice to do so.’ and he referred to the English rule which is in terms practically identical with Rule 6(1) set out above.”

30. Their Honours noted that Rule 6(1) of Schedule 6 to the Crimes Act 1958 (Vic) provided:^[6]

“6. (1) The description of property in a count in a presentment shall be in ordinary language and such as to indicate with reasonable clearness the property referred to and if the property is so described it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property.”

31. After referring to the types of cases in which identity of the ownership of the property in question may be important, the Court said:^[7]

“An accused person is entitled to have reasonable particulars of what is alleged against him and nothing which we have said is to be taken as intending to discourage ‘the present useful and most desirable (and sometimes essential) practice of including’ in the presentment or information the name of the owner of the property alleged to have been stolen (cf. R. v. Gal, supra, at (W.L.R.) p. 845).  The object of particulars is to achieve fairness, not to provide an escape from a charge properly brought.”

32. Section 421 of the Criminal Code, the provision under which the charge was brought, does not require the identification of the owner of the subject premises.  The indictment alleges that a sum of money was stolen but does not identify its owner.  Stealing is defined in s 391 of the Code as follows:

“391Definition of stealing

1. A person who fraudulently takes anything capable of being stolen, or fraudulently converts to the person’s own use or to the use of any other person anything capable of being stolen, is said to steal that thing.
2. A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents, that is to say—
   1. an intent to permanently deprive the owner of the thing of it;
   2. an intent to permanently deprive any person who has any special property in the thing of such property; …

7. In this section—

owner includes the owner, any part owner, or any person having possession or control of, or a special property in, the thing in question.”

33. Section 390 of the Code provides:

“390Things capable of being stolen

Anything that is the property of any person is capable of being stolen if it is—

1. moveable; or
2. capable of being made moveable, even if it is made moveable in order to steal it.”

34. In R v McKiernan,^[8] Davies JA concluded that s 390 and s 391 of the Code, while requiring proof that the property the subject of a charge was owned at the time it was taken, do not require proof of who owned it.

35. Section 564(3) of the Code provides that, “It is sufficient to describe an offence in the words of this Code or of the statute defining it”.  Consequently, the offence could have been described simply as follows:

“That on or about the tenth day of March 2010 at Toowoomba … [the appellant] entered premises at 125 Herries Street, Toowoomba and stole a sum of money in the premises and gained entry to the premises by break.”

36. As there was no reason why the owner of the subject premises needed to be identified in the indictment, the naming of the owner of the premises in the indictment was “surplusage” and any absence of proof in that regard could be ignored.^[9]

37. Counsel for the respondent submitted that as the appellant had notice of the alleged irregularity in the proceeding and, by his counsel, had properly declined the opportunity to object, he could not now resile from that position.

38. In view of the foregoing, it is unnecessary to pursue this argument but it has substance and the principles relevant to it are also applicable to the discussion below of the additional arguments advanced by the appellant.

39. Reliance was placed on the following passage from the reasons Keane JA in R v McCosker:^[10]

“Use of the terminology of waiver by way of a shorthand description of the legal consequences of an accused person allowing a trial to proceed without taking a point about a procedural irregularity may tend to blur the focus on the point that the principle in issue is concerned with the fairness of the trial.  Where a party knows of a procedural irregularity, but knowingly stands by and takes his or her chances with the verdict, rather than calling a halt to the proceeding, there is nothing unfair in holding that party to his conduct.”

40. The principle to which Keane JA referred is well established.  In Crampton v The Queen,^[11] Gleeson CJ said:

“… as a general rule, litigants are bound by the conduct of their counsel.  This principle, which is an aspect of the adversarial system, forms part of the practical content of the idea of justice as applied to the outcome of a particular case.  For that reason, courts have been cautious in expounding the circumstances in which an appellant will be permitted to blame trial counsel for what is said to be a miscarriage of justice.” (citations omitted)

41. In Patel v The Queen,^[12] French CJ, Hayne, Kiefel, and Bell JJ observed:

“Although the law recognises the possibility that justice may demand exceptions, it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel.” (citations omitted)

42. Their Honours cited the reasons of Gleeson CJ in Nudd v The Queen,^[13] where the Chief Justice said:

“Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened.  A criminal trial is conducted as adversarial litigation.  A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.  The law does not pursue that principle at all costs.  It recognises the possibility that justice may demand exceptions.  Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise.  Considerations of fairness often turn upon the choices made by counsel at a trial.  In TKWJ v The Queen, the appellant complained that evidence of his good character was not led.  This, it was said, was unfair.  In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision.  That, in the circumstances of the case, was conclusive.  It is the fairness of the process that is in question; not the wisdom of counsel.  As a general rule, counsel’s decisions bind the client.  If it were otherwise, the adversarial system could not function.  The fairness of the process is to be judged in that light.  The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.” (citations omitted)

43. The exchange between counsel and the judge on which the respondent relies, referred to in paragraph [24] above, directly related only to proof of incorporation of Takagaki Pty Ltd and its conduct of the Miller’s Fruit Barn business.  However, defence counsel’s statement that “it’s not an issue” must be seen in the context of acceptance by the defence that a break and enter had occurred and that money had been stolen from the safe.  The statement made it apparent that any conflict between the business name extract and Mr Takagaki’s evidence that he was the owner/operator of the Fruit Barn would not be a matter upon which the defence would rely.  Once it is accepted that there was documentary evidence, not contested by the defence, which was available for tendering if required, that Takagaki Pty Ltd ran the Miller’s Fruit Barn business, there was sufficient evidence of ownership of monies in the safe, if evidence was needed.  But, in any event, Mr Takagaki’s evidence of the cash register tills and the money in them being placed in the safe overnight was ample evidence that the money in the safe was owned at the time it was taken.

44. Accordingly, this ground of appeal was not made out.

45. It is unfortunate that the evidence adduced by the prosecution was such as to give rise to the issues just discussed. The prosecution case was straight forward. Proof of the matters alleged in the indictment, such as the theft of money from the safe and the ownership of the premises, could, and should, have been effected by means of a few well chosen questions of Mr Takagaki.  In questioning Mr Takagaki, the prosecutor appeared not to understand that Takagaki Pty Ltd was a legal entity separate from its shareholders and directors.

46. In respect of the offence of stealing, Mr Takagaki was not asked if there was money in the safe when he arrived at work on 11 March 2010.  The elements of that offence were left to be proved by inferences to be drawn from the general body of evidence.  The relevant evidence included: Mr Takagaki’s evidence of the usual practice that the shop’s three cash register tills with the money in them were kept in the safe overnight; photographs showing the safe door open and three empty tills on the floor of the ransacked office; and Mr Takagaki’s evidence that the safe was not open when the shop was closed on 10 March and that there “would have been 8,000 or something like that” in the safe.

47. The fact that the defence case was conducted on the basis of accepting that there had been a theft of money from the safe is relevant, but does not diminish the force of the criticisms of the way in which the prosecution evidence was presented.

Other arguments advanced by the appellant on the hearing of the appeal

48. On the hearing of the appeal and in a supplementary outline of argument, the appellant strayed outside the grounds in the notice of appeal and in his written outlines of argument. Generally, the new arguments were either ones which had been advanced by defence counsel on the trial and rejected by the jury or which were unsupported by the evidence. The appellant additionally sought leave to adduce and rely upon further evidence.

49. It was contended that the trial judge misstated submissions made by defence counsel. It was not shown that the trial judge’s summing up in this regard did the defence case any disservice. Moreover, the misstatement alleged by the appellant was not a matter that defence counsel saw fit to raise with the trial judge. Later observations are also relevant to this contention.

50. It was argued that Mr Takagaki’s evidence to the effect that $8,000 was taken from the safe was unsupported by documentary records.  Mr Takagaki’s evidence, if accepted by the jury, was sufficient to prove the loss of approximately $8,000.  He was not challenged about that evidence and it was not part of the defence case that money had not been taken from the safe.

51. The appellant complained about the failure by his counsel to raise various matters in submissions. As the above authorities show, the appellant was bound by the conduct of his counsel. Nothing to which the appellant pointed indicated that his counsel had behaved incompetently. Moreover, the appellant’s assertions in this regard were not supported by any evidence sworn or otherwise and were not within any ground of appeal.

52. The appellant sought to adduce further evidence including police reports which were said to show that the front door had been opened by a tool or tools and that a large amount of force was needed to cause the glass sliding door to come off its hinges.  Mr Takagaki gave evidence that the door frame had been bent out of shape and that the locking pin that “goes into the concrete” was bent.  The evidence before the jury made it plain that the door had been forced.  The precise means by which that was done was a matter of speculation.  The jury necessarily accepted, contrary to the appellant’s account, that he was the person who had forced the door.

53. Reference is made to notations in the early police reports of $17,000 having been taken. Presumably, the records of the business were checked in order to arrive at the $8,000 figure but, in any event, defence counsel chose not to make any issue of the quantum of the theft. The evidence of Mr Takagaki made it plain that a substantial sum made up of notes of various denominations as well as coins had been taken.

54. The appellant seemed to place considerable store by a number of photographs of the interior of the subject premises showing no blood marks on the door handle of the safe, glass on the ground near the door, tool marks on the door and a smaller blood smear on the piece of paper inside the safe which may have belonged to someone else. Most of these matters could have been the subject of evidence on the trial and, in fact, some such evidence was before the jury.

55. There were photographs in evidence of the front door which showed that sufficient force had been applied to it to lever it open so that the vertical metal frame of the sliding door, which contained the locks, had been bent substantially so that it was several degrees off the vertical. The photographs also showed the hole in the glass and the pieces of broken glass both inside and outside the shop. The absence of blood smears on the safe door handle was readily explicable. It could have been wiped clean. If it had been argued that the smaller blood smear on the paper could have belonged to another person, the jury would have been entitled to reject the argument as fanciful.

56. The appellant wanted to put in evidence photographs of shoes that he claimed were the Nike shoes worn by him at the time of the incident. He could have put those shoes into evidence on the trial and it is too late to attempt to do so now. Moreover, there is no proof that the shoes are in fact the ones that the appellant was wearing at the time of the incident.

57. The appellant also requested the Court to listen to a CD recording of defence counsel’s address. I did so.  It did not appear to me that the trial judge misstated the defence case.

58. An application for leave to appeal against sentence (Ground (c) in the Notice of Appeal) was abandoned and, on the hearing of the appeal, it was ordered that the application be refused.  For the above reasons, I would refuse leave for the appellant to adduce further evidence and I would order that the appeal be dismissed.

59. FRASER JA:  I agree with the reasons for judgment of Muir JA and the orders proposed by his Honour.