Bratton v Amiguet - [2002] QDC 74

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the Director, State Reporting Bureau. [2002] QDC 074

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Date: 25 / 3 / 02

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE C F WALL QC
No D22 of 2002

JAMES EDWARD BRATTON Appellant
and

PETER THOMAS AMIGUET Respondent
TOWNSVILLE
..DATE 21/03/2002
JUDGMENT

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HIS HONOUR: This is an appeal against the appellant's conviction in the Magistrates Court at Townsville on the 7th of November 2001 of an offence against section 92(1) of the Crimes (Confiscation) Act 1989. The complaint alleged that on the 1st of August 2001 the appellant possessed property namely an IBM Think Pad laptop computer that may reasonably be suspected of being tainted property.

The evidence before the Magistrate established that on the 1st of August 2001 at about 12.40 a.m., police saw the appellant alight from a vehicle in Clayton Street, Townsville, next to a unit occupied by Melissa Thompson, the daughter of Kerry Thompson. He was then carrying the laptop. He appeared to dispose of it or drop it. He was apprehended and was charged with the present offence.
Section 92(1) and (2) provide as follows:
"92.(1) A person must not receive, possess, dispose of, bring into Queensland, conceal or disguise property that may reasonably be suspected of being tainted property.
Maximum penalty - 100 penalty units or 2 years imprisonment
(2) If a person is charged with an offence against
this section, it is a defence to the charge if the
person satisfies the Court that the person had no
reasonable grounds for suspecting that the property
mentioned in the charge was either tainted property
or derived from any form of unlawful activity."

"Tainted property" includes stolen property. See section
13(1).
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The appellant gave evidence and called his girlfriend, Kristy Bennett. At the relevant time they lived together. She said that on the 31st of July 2001 at 5 to 6 p.m., Matt Bentley and
Kerry Thompson left the laptop with her, the appellant not
then being home, asking that the appellant see if he could get at the request of Ms Bennett, tried unsuccessfully to get the computer to work. He could not get access to it and thought this was because it was "a company computer". He became suspicious of its origin; it "didn't look right", he "thought it was possible it was stolen". He decided to return it to Bentley and Thompson and that is what he said he was doing when apprehended by the police. He said he intended to leave the laptop with Melissa for her to give back to her mother.
it to work. The appellant was apparently computer literate.
Kristy Bennett said that the appellant decided to take the laptop back because he said it was hot or stolen, that the story Bentley and Thompson gave did not match the computer because the computer was a business computer and did not
belong to them. He told her he was taking it back because it
did not match up with "the story", it was suspicious. She
suggested he take it to the police but he said, "What's the
point when it might not be. It might be a friend of theirs
who owns a business." She said he was not sure if it was
stolen. The prosecution asked the Magistrate to disbelieve
the appellant and Ms Bennett.
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At the trial the defence did not take issue with the fact that the laptop was tainted property. The evidence clearly established that it had been stolen from the house of an accountant, between 3 and 4.30 p.m. on the 29th of July 2001.
The laptop belonged to the accountant's employer, Price
Waterhouse Coopers.
The defence case was that the appellant, having decided to return the laptop to Bentley and Thompson and being in the process of doing so, was not legally in possession of it.
Reliance was placed on McCalla v R (1988) 87 Cr App R 372 at 379. It was submitted that the appellant "displayed an immediate intention not to have possession (of the laptop) and to rid himself of (it). He has acted to return it to those from whom it came having developed a suspicion that it could be stolen property."
Before me, Mr Brown, who also appeared for the appellant in the Magistrates Court, submitted that he did not rely in the Magistrates Court upon the defence in section 92(2). The transcript at page 96 indicates that in fact he may have, but I concede there is room for doubt. Reliance on the defence would not necessarily be inconsistent with the effective admission that the property was tainted but in view of the evidence of the appellant and Ms Bennett of what the appellant said to her, it was a defence which was destined to fail, as
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it did. The respondent however, concedes that section 92(2)
was not in fact relied on at the trial.

In his decision the Magistrate considered only two issues, first whether the laptop "may reasonably be suspected of being tainted property" and second, the section 92(2) defence. He did not consider the "possession" defence. Not surprisingly, he resolved the two issues which he considered, against the appellant. The first was in fact not an issue on the trial and the respondent concedes also, that the second was also not an issue. The issue in relation to possession remains unresolved and the failure of the Magistrate to consider it forms the sole basis of the appeal. The respondent concedes (quite correctly) that the Magistrate was in error in not considering and deciding that issue, but submits that on the evidence before the Magistrate, there is sufficient evidence to warrant a finding by this Court, that the appellant was relevantly in possession of the laptop.

Questions of credibility are involved. I have not seen or heard the witnesses and in these circumstances, realistically, I am unable to properly resolve the issue one way or the other. It all depends on whether the appellant and Ms Bennett are believed or whether their evidence, considered in the light of all of the evidence, leaves one with a reasonable doubt as to what the position was and that cannot be determined on the papers.
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The fact that the Magistrate had doubts as to the appellant's credibility on the section 92(2) defence, is not to the point.
That is a different issue from whether, had he considered it,
he would have been satisfied beyond reasonable doubt that the prosecution had proved the necessary mental element, conceded by the respondent to exist, involved in possession. Section
92(2) places the onus on the defendant (on the balance of convicted. The trial miscarried because this element was not considered by the Magistrate.
probabilities) to establish the defence. Possession on the
other hand is an element of the offence to be proved beyond
reasonable doubt. I am unable to conclude that had the
In Police v Kennedy (unreported) SASC, 28 April 1998 [1998]
SASC 6638, Bleby J said, correctly with respect,
"The elements necessary to establish a charge of
possession will vary greatly according to the legislative
context in which the offence appears and the object of
the legislation in question."

At common law there are two elements for possession -
(1) physical custody or control by the defendant; and
(2) an intention to possess or mens rea.

There are a couple of faint suggestions against the appellant's argument in this case but these are, in my view,
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outweighed by other authorities and by principle and logic.
In Crawford v Pattemore (unreported) DC, Qld, 18.8.99 [1999]
QDC 232 Skoien SJDC said of the present offence (paragraph
16):
"...it is apparent that very little must be established in order to satisfy a Court beyond reasonable doubt and provided the suspicion is reasonably based the
requirements of the section are fulfilled."

His Honour was not dealing with the present point and must be
taken to have been speaking of a situation where possession
was not in dispute. Likewise the remarks of Kirby P in
Anderson v NSW DC Judges [1992] 27 NSWLR 70 about s 527C
Crimes Act (NSW) that:
"Attention must be drawn to the qualified mental element
which must be established in order to attract the
operation of the section. It is enough that it is shown
that the thing in custody 'may be reasonably suspected of
being...unlawfully obtained.'"

In my view, section 92(1) requires a coexistence of possession heading "Was the law correctly applied?"
and suspicion. Section 92(1) and (2) were considered by the
Court of Appeal in King v De Villiers (unreported) 25.11.97,
"...the prosecution had to show that the appellant
possessed the property in question; that had to be proved
beyond reasonable doubt. In the present case it is not
absolutely clear that the learned Magistrate who decided
the case kept that firmly in mind... The prosecution had
to prove, in order to obtain a conviction, that the
appellant possessed the property in question and also
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that such property may reasonably be suspected of being
tainted property."

In R v Brauer,(1990) 1 Qd.R. 332 Cooper J said at page 360,
"the offence of being in possession is complete when the
mental element is proved."
In Police v Kennedy, supra, Bleby J also distinguished between
"the physical element of possession or control" and "the
necessary state of mind of the defendant."
In the present case the police prosecutor appeared to accept
that in certain circumstances a person in physical possession
of property who became aware it was stolen may have a defence
(other than section 92(2)) when he submitted to the
Magistrate:
"The right thing would have been to take it to the police
at the time he thought it was stolen."

In McCalla v R, supra, May LJ in delivering the judgment of the Court of Appeal said at page 379:
"...once one has or possesses something...one continues
to have or possess it until one does something to rid
oneself of having possession of it..."

That was the argument advanced to the Magistrate here.
Unfortunately, his Worship did not deal with it.
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That there must be a mental element involved in possession in a case such as the present is, I think, clear from the following example. AB observes CD steal a watch from EF and gives chase. He retrieves the watch and is physically in possession of it, intending to return it to EF. By no stretch of the imagination could he be said to be guilty of an offence against section 92(1).

The fact situation in this appeal is merely a variant of that example. I am not to be taken as suggesting that the appellant would have succeeded in his defence, only that it was incumbent upon the Magistrate to consider it in analysing whether the prosecution had proved possession in the relevant sense.

In this context, the decision of the English Court of Criminal Appeal in R v Matthews (1949) 34 Cr.App.R. 55 is of some assistance by analogy. The facts, taken from the headnote, were:
"The appellant, who was charged with receiving stolen
property, admitted that when he received the property he
knew it to be stolen, but said that he had received it
with the intention of handing it over to the police. He
did communicate with the police by telephone, but at the
appointment which he had made he did not hand the
property over to the police, and it was not found till
the next day and was then hidden behind the seat of the
police car in which the appellant had travelled."

The Court of Criminal Appeal said at pages 58-59:
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"If the appellant received the property in the
circumstances which he desired the jury to find, with
intention of at once handing it over to the police,
though the learned Chairman might well have asked the
jury whether in all the circumstances the appellant could
possibly have had that intention, then that would not be
a felonious receipt.
The court cannot possibly accept the argument which has been addressed to it on behalf of the prosecution that a person who has received stolen property intending at once to hand it over to the police or the true owner, is nevertheless guilty of that felony of receiving stolen property. That would mean that if somebody chased a thief and picked up stolen property, which had been dropped by the thief, he would be guilty of the offence of receiving stolen property. That is so startling that I am surprised the argument can be put; at any rate, it is not the law.
"In this case, if the jury had believed the appellant's
evidence that he had innocently taken the property in the
sense that he intended to return it to the true owner or
the police, there would be no trespass, and therefore he
could not be guilty of the offence of stealing."

In a similar vein, the English Court of Criminal Appeal in the R v Dellicompagni (unreported) 15 December 1997, in relation to a charge of handling stolen goods posed as relevant questions in this context, the following, "Was the possession dishonest?" and "Was the accused acting dishonestly?".
The evidence of the appellant here that he intended to return the laptop to Bentley and Thompson, rather than take it to the police, had to be considered in the context of the elements of the offence and it was not. The Magistrate may very well have rejected the evidence, but I cannot conclude that he must have reached that result. It may be that the Magistrate would have disbelieved the appellant's assertion that he did not in fact know or suspect that Bentley and Thompson had most probably
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stolen the laptop and been satisfied that the necessary mental
element for possession, bearing in mind the object of the
legislation, had been proved. I cannot though, reach that
conclusion simply on a reading of the evidence.

The respondent concedes that the Magistrate erred in not considering these matters in the context of the element of the offence requiring proof of possession. The appeal will accordingly be allowed with costs. The conviction and sentence will be set aside and the complaint will be dismissed. The respondent concedes that this should be the result once it is concluded that it is not open to this Court to resolve the issue of possession. There is unfortunately, no power to order a retrial. The absence of such a power in section 225 of the Justices Act should again be brought to the attention of the legislature.
...

HIS HONOUR: The parties have agreed that the appellant's costs in the Magistrates Court are $616. In those circumstances, I order that the respondent pay the appellant's costs of the hearing in the Magistrates Court fixed at $616.
...

HIS HONOUR: I order that the respondent pay the appellant's costs of the appeal, agreed at $966.90.
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...

HIS HONOUR: The respondent is entitled to an indemnity certificate under section 15 subsection (3) of the Appeal Costs Fund Act. In those circumstances, under that section, I grant to the respondent, an indemnity certificate in respect of the appeal.

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12 JUDGMENT

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Citations

Bratton v Amiguet [2002] QDC 74

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POLICE v KENNEDY No. SCGRG-98-23 Judgment No. S6638 [1998] SASC 6638

JAMES EDWARD BRATTON	Appellant
and
PETER THOMAS AMIGUET	Respondent
TOWNSVILLE ..DATE 21/03/2002
JUDGMENT
21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ)	1
HIS HONOUR: This is an appeal against the appellant's conviction in the Magistrates Court at Townsville on the 7th of November 2001 of an offence against section 92(1) of the Crimes (Confiscation) Act 1989. The complaint alleged that on the 1st of August 2001 the appellant possessed property namely an IBM Think Pad laptop computer that may reasonably be suspected of being tainted property.
The evidence before the Magistrate established that on the 1st of August 2001 at about 12.40 a.m., police saw the appellant alight from a vehicle in Clayton Street, Townsville, next to a unit occupied by Melissa Thompson, the daughter of Kerry Thompson. He was then carrying the laptop. He appeared to dispose of it or drop it. He was apprehended and was charged with the present offence.
Section 92(1) and (2) provide as follows:

21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ)	1
The appellant gave evidence and called his girlfriend, Kristy Bennett. At the relevant time they lived together. She said that on the 31st of July 2001 at 5 to 6 p.m., Matt Bentley and

21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ)	1
At the trial the defence did not take issue with the fact that the laptop was tainted property. The evidence clearly established that it had been stolen from the house of an accountant, between 3 and 4.30 p.m. on the 29th of July 2001.

21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ)	1
it did. The respondent however, concedes that section 92(2) was not in fact relied on at the trial.
In his decision the Magistrate considered only two issues, first whether the laptop "may reasonably be suspected of being tainted property" and second, the section 92(2) defence. He did not consider the "possession" defence. Not surprisingly, he resolved the two issues which he considered, against the appellant. The first was in fact not an issue on the trial and the respondent concedes also, that the second was also not an issue. The issue in relation to possession remains unresolved and the failure of the Magistrate to consider it forms the sole basis of the appeal. The respondent concedes (quite correctly) that the Magistrate was in error in not considering and deciding that issue, but submits that on the evidence before the Magistrate, there is sufficient evidence to warrant a finding by this Court, that the appellant was relevantly in possession of the laptop.
Questions of credibility are involved. I have not seen or heard the witnesses and in these circumstances, realistically, I am unable to properly resolve the issue one way or the other. It all depends on whether the appellant and Ms Bennett are believed or whether their evidence, considered in the light of all of the evidence, leaves one with a reasonable doubt as to what the position was and that cannot be determined on the papers.

21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ)	1
The fact that the Magistrate had doubts as to the appellant's credibility on the section 92(2) defence, is not to the point.

21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ)	1
outweighed by other authorities and by principle and logic. In Crawford v Pattemore (unreported) DC, Qld, 18.8.99 [1999] QDC 232 Skoien SJDC said of the present offence (paragraph 16):

21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ)	1
That there must be a mental element involved in possession in a case such as the present is, I think, clear from the following example. AB observes CD steal a watch from EF and gives chase. He retrieves the watch and is physically in possession of it, intending to return it to EF. By no stretch of the imagination could he be said to be guilty of an offence against section 92(1).
The fact situation in this appeal is merely a variant of that example. I am not to be taken as suggesting that the appellant would have succeeded in his defence, only that it was incumbent upon the Magistrate to consider it in analysing whether the prosecution had proved possession in the relevant sense.
In this context, the decision of the English Court of Criminal Appeal in R v Matthews (1949) 34 Cr.App.R. 55 is of some assistance by analogy. The facts, taken from the headnote, were:

21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ)	1
stolen the laptop and been satisfied that the necessary mental element for possession, bearing in mind the object of the legislation, had been proved. I cannot though, reach that conclusion simply on a reading of the evidence.
The respondent concedes that the Magistrate erred in not considering these matters in the context of the element of the offence requiring proof of possession. The appeal will accordingly be allowed with costs. The conviction and sentence will be set aside and the complaint will be dismissed. The respondent concedes that this should be the result once it is concluded that it is not open to this Court to resolve the issue of possession. There is unfortunately, no power to order a retrial. The absence of such a power in section 225 of the Justices Act should again be brought to the attention of the legislature.
...
HIS HONOUR: The parties have agreed that the appellant's costs in the Magistrates Court are $616. In those circumstances, I order that the respondent pay the appellant's costs of the hearing in the Magistrates Court fixed at $616.
...
HIS HONOUR: I order that the respondent pay the appellant's costs of the appeal, agreed at $966.90.

21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ)	1
...
HIS HONOUR: The respondent is entitled to an indemnity certificate under section 15 subsection (3) of the Appeal Costs Fund Act. In those circumstances, under that section, I grant to the respondent, an indemnity certificate in respect of the appeal.