Ford v Lowe - [2020] WASC 374

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   FORD -v- LOWE [2020] WASC 374
CORAM:   HILL J
HEARD:   5 JUNE 2020
DELIVERED          :   22 OCTOBER 2020
FILE NO/S:   SJA 1161 of 2019
BETWEEN:   JASON PAUL FORD
Appellant
AND
STEPHEN JOHN LOWE
Respondent

ON APPEAL FROM:
For File No:   SJA 1161 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B MAHON
File Number            :   AR 9565/2018; AR 238/2019

Catchwords:

Criminal law - Appeal against conviction - Possession of cash reasonably suspected of being unlawfully obtained - Whether verdict was unreasonable or unsupported by the evidence - Whether specific finding should have been made as to whether all money seized was reasonably suspected of being unlawfully obtained

Legislation:

Criminal Code (WA), s 417

Result:

Leave to appeal refused on each ground
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S Watters
Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	Porter Scudds
Respondent	:	Director of Public Prosecutions (WA)

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

Costa v The State of Western Australia [2019] WASCA 200
Le v Feakes [2018] WASC 331
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269

HILL J:

On 21 November 2019, the appellant was convicted after trial in the Magistrates Court of two charges of being in possession of sums of money that were reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA). The appellant seeks leave to appeal against his conviction.
For the reasons that follow, I am not satisfied that either of the grounds of appeal has a reasonable prospect of succeeding. On this basis, leave to appeal is refused and the appeal is dismissed.

Notice of appeal and leave to appeal

The appellant filed his notice of appeal on 17 December 2019 which was within time.[1]
[1] Criminal Appeals Act 2004 (WA), s 10(3).
There are two grounds of appeal namely that:
1.The verdict of guilty in relation to the charge of being in possession of cash reasonably suspected of being unlawfully obtained was unreasonable and/or unsupported by the evidence.
2.The learned Magistrate should have directed himself to deliver a special verdict in relation to the money he found was lawfully obtained.
The appellant requires leave to appeal on each ground of appeal. The court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a rational and logical prospect of succeeding.[2]
[2] Criminal Appeals Act, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

Factual background

The background facts of the offence were not in dispute either at trial or on appeal.

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 Ford v Lowe

Details

AGLC: Ford v Lowe [2020] WASC 374
Case: [2020] WASC 374
Decision Date: 22 OCTOBER 2020

CaseChat Overview and Summary

The case of Ford v Lowe involves an appeal against the conviction of the applicant, Ford, for possession of cash reasonably suspected of being unlawfully obtained. The trial was held in the County Court of Victoria. The dispute revolves around whether the jury's verdict was unreasonable or unsupported by the evidence, and whether a specific finding should have been made regarding whether all the money seized was reasonably suspected of being unlawfully obtained.

The primary legal issues the Court of Appeal had to address were whether the jury's verdict was unreasonable or unsupported by the evidence, and whether the trial judge should have directed the jury to make a specific finding about whether all the seized cash was reasonably suspected of being unlawfully obtained. The appeal hinged on the interpretation and application of statutory provisions related to possession of suspected unlawful property.

The Court of Appeal found that the jury's verdict was open to them and was not unreasonable or unsupported by the evidence. It was held that the trial judge did not err in failing to direct the jury to make a specific finding about whether all the seized cash was reasonably suspected of being unlawfully obtained. The Court of Appeal held that the statutory provisions did not require such a specific finding, and the jury's general verdict was sufficient. Consequently, the appeal was dismissed.

The Court of Appeal did not make any additional orders beyond dismissing the appeal. The conviction and sentence of the applicant remained in place, affirming the original decision of the County Court of Victoria.

Orders