DPP v Sweeton - [2004] VSC 427

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No.6437 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
(on behalf of Matthew John Oliver)
v
AARON JAMES SWEETON	Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 October 2004
DATE OF JUDGMENT:	29 October 2004
CASE MAY BE CITED AS:	DPP v Sweeton
MEDIUM NEUTRAL CITATION:	[2019] VSC 427

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Appeal – s 92 Magistrates’ Court Act 1989.

Criminal Law – possess – actual possession, s 26 Summary Offences Act 1966 differentiated from possess s 123 Confiscation Act 1997 – suspicion – whether formation of suspicion must be contemporaneous with possession – effect of s 123 Confiscation Act 1997.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B Kayser	Solicitor for Public Prosecutions
For the Respondent	Mr T Kassimatis	Brugman Mellas

HER HONOUR:

Introduction

1 This is an appeal under section 92 of the Magistrates’ Court Act 1989 against the final order of the Magistrates’ Court at Geelong made on 11 May 2004 dismissing a charge of possession of proceeds of crime contrary to section 123 of the Confiscation Act 1997 (“the Confiscation Act”) wherein Matthew John Oliver was the informant and the respondent, Aaron James Sweeton, was the defendant, and ordering that the Chief Commissioner of Police pay costs in the amount of $685.

2 On 19 July 2004 Master Evans ordered that the questions of law raised by the appeal were:

(1)Was it open to the Magistrate, upon the evidence then before him, to find that the respondent was not in possession of the goods reasonably suspected of being proceeds of crime because he was in custody at the time the suspicion was formed?
(2)Did the Magistrate err in law in:
(a)determining that the [respondent] did not “possess” the items in question;
(b)his interpretation of the word “possess”;

within the meaning of section 123 of the Confiscation Act 1997 as then enacted.

Master Evans further ordered that the order for costs made by the Magistrate be stayed until further order.

At the time of the events giving rise to the charge, section 123 of the Confiscation Act read as follows:

123.Possession etc of property suspected of being proceeds of crime
(1)A person must not receive, possess, conceal, dispose of or bring into Victoria any money, or other property that may reasonably be suspected of being proceeds of crime.
Penalty:Level 7 imprisonment (2 years maximum) a level 7 fine (240 penalty units maximum) or both.

(2)It is a defence to a charge for an offence against sub-section (1) if the defendant satisfies the court that the defendant had reasonable grounds for not suspecting that the property referred to in the charge was proceeds of crime.

On 19 September 2003 the informant, in company with other police officers, attended a unit in South Geelong with a search warrant. Upon their arrival the respondent was taken into custody, placed under arrest and given appropriate cautions. Thereafter the informant found certain items of property…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Sweeton

Details

AGLC: Director of Public Prosecutions v Sweeton [2004] VSC 427
Case: [2004] VSC 427
Decision Date: 29 October 2004

CaseChat Overview and Summary

The appeal before the court concerns a decision made by the Magistrates’ Court, which convicted the defendant of possessing a weapon without a permit. The appeal was based on the interpretation of the terms "possess" under the Summary Offences Act 1966 and the Confiscation Act 1997, and whether the formation of suspicion must be contemporaneous with the possession. The case involved the Director of Public Prosecutions, acting on behalf of the State, appealing against the decision of the Magistrates’ Court to dismiss the charge against the defendant.

The legal issues in the case revolved around the interpretation of the term "possess" in the context of the Summary Offences Act 1966 and the Confiscation Act 1997. The court was required to determine whether the formation of suspicion must occur simultaneously with the possession, and how section 123 of the Confiscation Act 1997 affects the interpretation of the term "possess." The court also needed to consider whether the Magistrates’ Court erred in law by dismissing the charge against the defendant.

In delivering the judgment, the court found that the term "possess" has different meanings in the Summary Offences Act 1966 and the Confiscation Act 1997. The court held that the term "possess" in the Summary Offences Act 1966 refers to actual possession, while the term "possess" in the Confiscation Act 1997 refers to suspicion. The court held that the formation of suspicion need not be contemporaneous with possession, and that section 123 of the Confiscation Act 1997 does not affect the interpretation of the term "possess" in the Summary Offences Act 1966. The court found that the Magistrates’ Court erred in law by dismissing the charge against the defendant, and allowed the appeal. The conviction of the defendant was restored.

The court ordered that the conviction of the defendant be restored, and that the defendant be re-sentenced by the Magistrates’ Court. The court also ordered that the defendant be remanded in custody pending re-sentencing.

Orders