Maslin v Searle [2010] WASC 146

[sjy]

Maslin v Searle [2010] WASC 146
heard 4 February 2010; delivered 18 June 2010

This was an appeal against a stealing conviction in the Magistrate's Court. The appellant claimed a number of errors of law.

A man returned to his house on 20 May 2008 to find it had been burgled. Shortly afterwards the police, who recognised the appellant, saw him near the burgled house and called him over. He ran away. Eventually, the police caught him and found him in possession of the stolen property.

[13] Constable Searle then had a conversation with Constable Hogben, and, after a search in the general area first by Constable Hogben and then by the two police officers, they located the appellant, at a car park at a shopping centre close by the medical premises. The appellant was seen crouched down behind a motor vehicle in the car park. Constable Hogben approached the appellant, who ran off. Constable Hogben caught the appellant, of whom he at no point lost sight, in the drive way of units nearby. Shortly thereafter the appellant was arrested and cautioned.

The appellant was convicted on circumstantial evidence. He claimed that there was reasonable doubt as to whether he was guilty of the offence he was charged with (s 378 stealing): it had not been established that he stole the property. Instead, he may have received it knowing it had been stolen (s 414).

Simmonds J applied the following test:

[22] [T]he test to apply to the grounds was whether or not it was reasonably open to the learned magistrate to conclude that the charges for the burglary offence and for the stealing offence had been proved beyond reasonable doubt, on the basis that the only rational or reasonable inference open to him was that the offender was guilty of those offences. [emphasis added]

[W]here a party is stopped coming out of a room with a gold watch which has been taken from the room; but if he has left the room so long as to render it probable that he may have received it from some one else, then it may be evidence either of stealing or of feloniously receiving.
Gilson v The Queen [1991] HCA 24 per McHugh J

Considering all the circumstances of the case, however (the appellant's suspicious behaviour and unexplained possession of stolen property), the appeal was dismissed.