Coleman v Director of Public Prosecutions - [2025] WASC 87

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   COLEMAN -v- DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASC 87
CORAM:   COBBY J
HEARD:   21 FEBRUARY 2025
DELIVERED          :   21 FEBRUARY 2025
PUBLISHED           :   17 MARCH 2025
FILE NO/S:   SJA 1084 of 2024
BETWEEN:   PAUL TREVOR COLEMAN
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B COLEMAN
File Number            :   PE 2994/23

Catchwords:

Criminal law - Appeal against conviction - Extension of time required to appeal - Possession of chattel reasonably suspected of being stolen or otherwise unlawfully obtained - No reasonable prospect of success - Extension of time refused

Legislation:

Criminal Code (WA) s 417
Road Traffic (Administration) Act 2008 (WA)

Result:

Extension of time refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms M L Wong

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Hoskins v Ramsden [2008] WASC 28
Lancaster v The Queen [1989] WAR 83
McLennan v Campbell [2003] WASCA 145
Wimbridge v Western Australia [2009] WASCA 196

COBBY J:

BACKGROUND

On 22 February 2024, the appellant was convicted in the Magistrates Court after trial of one count of possession of stolen or unlawfully obtained property, contrary to s 417(1) of the Criminal Code (WA).
On 30 July 2024, the appellant was sentenced on that charge, together with five other offences. The appellant was sentenced to 12 months on the charge the subject of the current application and a further 12 months in relation to a charge of having no authority to drive, cumulative. The total effective sentence of imprisonment was therefore 2 years, the appellant being made eligible for parole after having served one‑half of that period, being 12 months.
The sentence start date in each case was backdated to 26 June 2023.
On 26 November 2024, the appellant filed an appeal against his conviction. Until this week there had been no appeal against sentence, but on 18 February 2024 the appellant indicated that he wished to appeal sentence, and the respondent has indicated that it does not oppose an extension of time in relation to his doing so.
It has been agreed that aspect of his appeal will be dealt with at a later date.
As the appellant was convicted on 22 February 2024 and sentenced on 30 July 2024, his appeal has been filed out of time. It appears the appellant calculated the time for appeal from the date he was sentenced, but in any event, he would have required an extension of time in which to appeal.
In Lancaster v The Queen Malcolm CJ said that it is well-settled that where there has been lengthy delay the court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.[1]
[1] Lancaster v The Queen [1989] WAR 83, 85.
In Wimbridge v Western Australia,[2] Buss JA (as his Honour then was) identified the five principal factors generally considered in deciding whether to exercise the discretion to extend time as follows:
First, the nature and extent of the delay. Secondly, the reasons for delay. Thirdly, the proposed grounds of appeal and their merits. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) for the State or the Crown if an extension of time is granted. These factors are not intended to be an exhaustive statement for relevant considerations. No doubt, in a particular case, there may be additional factors.
[2] Wimbridge v Western Australia [2009] WASCA 196 [45].
There has been no explanation for the delay in seeking the appeal of the conviction, which was entered five months before the appellant was sentenced, but I accept that from 30 July 2024 the appellant was incarcerated and that gave rise to difficulties with his access to materials and in filing documents.
For the reasons which follow, I find that none of the identified grounds of appeal have any merit, with the consequence that I decline to grant the necessary extension of time in which to appeal.
The appellant's grounds of appeal are:
1.The Magistrate wrongly stopped evidence being given by refusing to allow the receipt for bill of sale to be submitted as evidence without giving reason.
2.Fresh evidence has become available since the conviction in the form of a 'Freedom of Information' that I lodged after the police seized the bike from me but refused to show me the stolen vehicle report when I asked to see it. This document was never produced and it was at this point [approximately 12 months after police took the bike] that I was hit with these charges. I am still yet to see this stolen vehicle report to this date.
3.The Magistrate stated that I should have known the bike to be stolen due to the low sale price. The PPSR Report clearly states the bike is a 'Repairable Write‑Off' hence the low sale price. This bike had extensive accident damage, some of which I had already repaired or replaced [bent handlebars & snapped brake lever] by the time police seized the bike.
4.The PPSR Report also clearly states the bike is not stolen, or I would not have purchased the bike.
The appellant represented himself at his trial on 22 February 2024. He gave evidence on his own behalf at the trial.
The evidence was that a Kawasaki motorcycle was found by police at the appellant's residential address on 30 November 2022, together with the plate bearing the vehicle identification number (VIN) for that motorcycle.
In the course of his evidence, the appellant accepted that he was in possession of the motorcycle. He tendered a handwritten receipt dated 7 November 2022 for a black Kawasaki Ninja 300 with the vehicle identification number (VIN) JKAEX8B19DDA03187 for $300, which the receipt recorded as having been paid in cash by the appellant on 7 November 2022. The receipt became exhibit 7. It stated in part:
Sold bike as unregistered wreck for parts use only.
He did not say how he came to know of the motorcycle. The author of the receipt was not called to give evidence. His absence was not explained.
At the time the motorcycle was located by the police, it was fitted with false registration plates, the VIN plate and the engine management system had been removed from it, and the ignition barrel, into which the ignition key would ordinarily be inserted to start the motorcycle, had been damaged and 'all but chewed out'.
Body worn camera footage was tendered in evidence at the trial, which recorded the appellant telling police that he had not received any keys to the motorbike when he acquired it, and that he started the motorcycle with a screwdriver.
A certificate of evidence was tendered pursuant to s 110 of the Road Traffic (Administration) Act 2008 (WA) certifying that the vehicle register recorded that the motorcycle was licensed until 13 November 2022. It was registered in the name of a different person from that who had purported to provide the receipt which is the subject of ground 1, and that on 7 November 2022, being the day that the appellant says that he bought the motorcycle, the vehicle was listed as stolen by the Western Australian Police Force in the register.
The registration number recorded in that certificate was different from the number plate affixed to the motorcycle when the police took possession of it on 30 November 2022.
The VIN plate for the motorcycle was located in the appellant's bedroom by police, together with the engine control unit.
The appellant did not inform police of the receipt, nor did he tell them that he had carried out any repairs on the motorcycle, either at the time of his arrest or thereafter.
The appellant subsequently provided police with a copy of a search of the Personal Property Securities Register (PPSR) in relation to the motorcycle's VIN, which was tendered in evidence at the trial. That certificate showed the motorcycle had been recorded as a repairable write‑off on 14 August 2013, with impact to the left rear and front heavy panels.
The PPSR certificate showed the motorcycle was inspected on 14 June 2014, to be registered until 13 November 2022, and that it was not recorded as stolen.
I infer from the reference to the inspection in June 2014 and that the motorcycle was registered in 2022 that the 2013 damage to the motorcycle was repaired and it was re-registered in or about June 2014.
In cross‑examination, the appellant said that the motorcycle was a write‑off, because it was damaged and because it said on the PPSR certificate that it was written off.
He acknowledged in cross‑examination that the PPSR certificate showed that the motorcycle was a repairable write‑off in 2013.
The appellant's evidence in cross‑examination was that he carried out the PPSR search on the day he purchased the motorcycle, about an hour before he paid for it. He said that he looked at the part of the certificate which stated that it was not recorded as stolen.
The appellant said that he was told that the motorcycle was not registered when he purchased it, and that it had no number plates. He agreed in cross examination that the person recorded as the owner of the motorcycle was not the person who gave him the receipt, and agreed that he had told police that he had only bought the bike a week before, although in truth he had obtained it more than three weeks prior to his arrest.
The appellant also agreed that the ignition barrel was not functioning on the motorcycle when he acquired it, and that he had to start it with a screwdriver.
The appellant said that he removed the engine control unit because the motorcycle had no ignition and he did not want it to get stolen. In relation to the VIN plate, his evidence was that he removed the plate because he was 'parting the bike out' (i.e. that he was selling parts from the motorcycle). He admitted that the VIN plate was on the frame of the bike and that it would not be necessary to remove the plate from the frame in order to remove parts from the motorcycle. When asked why he had removed the plate, the appellant stated 'Because it's my bike. I can do what I want with it'.
Section 417 of the Criminal Code provides:
(1)A person who is in possession of any thing capable of being stolen that is reasonably suspected to be stolen or otherwise unlawfully obtained is guilty of a crime and is liable, if no other punishment is provided under section 417A, to imprisonment for 7 years.
Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.
(2)It is a defence to a charge under subsection (1) to prove that at the time the accused was allegedly in possession of the thing, the accused had no reasonable grounds for suspecting that the thing was stolen or unlawfully obtained.
The prosecution therefore has the burden of proving beyond reasonable doubt:
(a)that the accused was in possession;
(b)of a thing capable of being stolen, and
(c)that was reasonably suspected to be stolen or unlawfully obtained.[3]
[3] Hoskins v Ramsden [2008] WASC 28 [12] - [16].
The third element requires the court to reach an objective conclusion from all of the evidence as to whether or not the goods might reasonably be suspected of being stolen or unlawfully obtained. The question is not whether the police at the time of the seizure of the goods had the relevant suspicion.[4]
[4] Hoskins v Ramsden [15] - [16]; McLennan v Campbell [2003] WASCA 145 [27].
The defence in s 417(2) is established if the accused shows, on the balance of probabilities, that he or she had no reasonable grounds for suspecting that the thing was stolen or unlawfully obtained.
Turning to the merits of the appeal, as I have already said, ground 1 is misconceived, as the receipt was tendered in evidence, and the appellant accepts as much.
Ground 2 refers to fresh evidence said to have become available since the appellant's conviction. The appellant has not identified the document which he said comprises that 'fresh evidence'.
Underlying ground 2 is a contention by the appellant that the motorcycle was not reported as having been stolen. That appears to be based on the failure to produce a stolen vehicle report.
However, there was evidence before the magistrate that confirmed the motorcycle was reported stolen on 7 November 2022, the same day the appellant claimed to have purchased it.
The appellant was cross-examined on that evidence. Further, the certificate to that effect was admissible pursuant to s 110 of the Road Traffic (Administration) Act 2008 (WA).
I consider that the additional evidence which the appellant seeks to adduce would not establish that there was any miscarriage of justice in this case, nor does it call into doubt that the accused should not have been convicted, having regard to the whole of the evidence before the magistrate.
There is therefore no merit in ground 2.
As to ground 3, the magistrate observed that the low sale price of the motorcycle, being $300, was a factor that should have raised suspicion that the motorcycle was stolen.
The respondent submits that the learned magistrate may have erred in one aspect of her reasoning process in coming to that conclusion.
The appellant said in evidence that the vehicle was more extensively damaged than the PPSR certificate indicated. The appellant said that the damage to the motorcycle referred to in the PPSR certificate had not been repaired. He said that he could see the bike was written off, and that it had further damage than what was referred to in the PPSR report.
He claimed the bike was 'damaged beyond worth fixing. The handlebars were bent. Everything was bent. The frame was cracked'.
The photographs tendered at trial, taken on 30 November 2022, were inconsistent with that description. Nor did any parts appear to have been removed from the motorcycle, other than the engine control unit.
There was no other evidence as to the condition of the motorcycle when it came into the appellant's possession.
As the PPSR certificate evidenced that the motorcycle had been registered in 2014 and that it remained registered in 2022, it could be inferred that the damage to the motorcycle referred to in the certificate had been repaired prior to the vehicle being re‑registered in 2014, but that did not rule out the possibility that the motorcycle had been damaged at some point after it had been re-registered.
However, the learned magistrate concluded that the motorcycle had 'no visible damage', other than the damage to the ignition, when the appellant first obtained it. In coming to that finding the magistrate appears to have relied upon photographs taken by the police when they located the motorcycle at the appellant's home, over three weeks later.
The appellant did not, however, give any evidence to the effect that the motorcycle had been repaired after he acquired it.
In my view, it was open to the learned magistrate, in the absence of evidence of repairs to the motorcycle and the fact that the motorcycle had been registered, to infer that it was in the same condition as shown in the photographs when the appellant obtained it.
However, I consider that there is one aspect in which the learned magistrate erred, in that the learned magistrate relied on her personal knowledge of motorcycles in finding that the motorcycle depicted in the photographs was worth far more than $300.
There is also a passing reference in the transcript to a RedBook value, which I infer is a valuation guide to motor vehicles, to which the transcript suggests the magistrate may have had regard. There was, however, no evidence of the value of the motorcycle, other than the appellant's claim to have paid $300 for it.
Her Honour came to the conclusion that the motorcycle was worth more than that based on her personal knowledge of motorcycles, having stated that she had been riding such vehicles for more than 20 years.
I consider that it was not open to her Honour to take judicial notice of the value of the motorcycle in that way and if, which is unclear, her Honour had reference to whatever the RedBook might be, it was not open to her Honour to have regard to that material either, it not having been tendered in evidence.
However, I am satisfied that error did not give rise to any substantial miscarriage of justice. Further, if I am wrong in my view that the learned magistrate was entitled to draw an inference as to the condition of the motorcycle when the appellant first obtained it, I am satisfied that, even if both matters are taken together, they did not give rise to any substantial miscarriage of justice.
The appellant's reliance on the PPSR certificate to support the claim that he did not suspect the vehicle was stolen or unlawfully obtained because of the notation that the motorcycle was a 'repairable write‑off' in 2013 is inconsistent with the statements in the same certificate that the motorcycle had been inspected in 2014, and was registered until 13 November 2022. His claim to have read only parts of the certificate, which was only a page in length, was a matter to be assessed by the learned magistrate, who had the advantage of seeing him give evidence. The learned magistrate rejected the appellant's evidence in its entirety.
Further, at the time the appellant acquired the motorcycle, it did not have number plates, he was not given the keys to the motorcycle and the ignition barrel was damaged, requiring the motorcycle to be started with a screwdriver. The lack of number plates was inconsistent with the PPSR certificate, which stated that the motorcycle was still registered.
Considered objectively, those matters, when taken together, were clear indicators that the motorcycle had been stolen.
In the circumstances, I am satisfied that no substantial miscarriage of justice arose from the learned magistrate drawing an inference as to the state of the motorcycle when the appellant obtained it, and in relying upon her personal knowledge in assessing the value of the motorcycle.
There was sufficient evidence to support the conclusion, beyond reasonable doubt, that the motorcycle had been stolen. Further, the appellant failed to make out the defence available under s 417(2) of the Code, for the same reasons.
Ground 4 raises, in essence, a claim by the appellant that he could not have reasonably suspected the motorcycle to have been stolen because the PPSR certificate stated that it was not reported as having been stolen.
That was one factor to be taken into account in assessing whether the appellant had made out the defence provided by s 417(2). But it was to be weighed with the other evidence suggesting that the motorcycle had been stolen, and was dependent in part on the appellant's credibility in relation to his claim not to have read the whole of the certificate. For the reasons I have already stated in relation to ground 3, it was open to the magistrate in all the circumstances to reject the appellant's claim that he had not read the rest of the certificate.

Conclusion

Accordingly, I consider that none of the identified grounds of appeal have any reasonable prospect of success, and, for the purposes of considering whether there has been a miscarriage of justice, there has been no substantial miscarriage of justice demonstrated by the appellant in relation to his conviction.
I therefore refuse the necessary extension of time in which to seek leave to appeal in relation to each of the four grounds. It follows that the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VR
Associate to the Hon Justice Cobby
17 MARCH 2025