Fox v Brown

[2000] TASSC 168

[2000] TASSC 168

CITATION:                 Fox v Brown [2000] TASSC 168

PARTIES:  FOX, Trevor Stuart

v
BROWN, Graeme Maxwell

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 86/2000
DELIVERED ON:  4 December 2000
DELIVERED AT:  Hobart
HEARING DATE:  23 November 2000
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Criminal Law - Particular offences - Property offences - Receiving and possession of property stolen or reasonably suspected of being stolen or unlawfully obtained - Possession - Basis and reasonableness of suspicion - Where several grounds for supposition - Cumulative effect.

Purcell v Marshall (1931) 26 Tas LR 102; Samoukovic v Brown A56/1993; Weston v Smith [1963] Tas SR 27; O'Garey v King [1972] Tas SR 136, referred to.
Aust Dig Criminal Law [230]

REPRESENTATION:

Counsel:
             Applicant:  J R C Zeeman
             Respondent:  T J Ellis
Solicitors:
             Applicant:  Jennings Elliott
             Respondent:  Director of Public Prosecutions

Judgment  Number:  [2000] TASSC 168
Number of paragraphs:  9

Serial No 168/2000
File No LCA 86/2000

TREVOR STUART FOX v GRAEME MAXWELL BROWN

REASONS FOR JUDGMENT  COX CJ

4 December 2000

1. The applicant was convicted of one count of being found in possession of property reasonably supposed to have been stolen or unlawfully obtained without being able to give a satisfactory account of his possession thereof to the court before which he was charged therewith, contrary to the Police Offences Act 1935 ("the Act"), s39. On 16 June 1999 at 6.48am, a search warrant authorising a search for drugs thereat was executed at No 4 Newman Court, Claremont by members of the Drug Squad, including the officer to whom it had been issued. Also present were members of the CIB, including Detective-Sergeant Ceritelli. The applicant was an occupant of the premises and was seated on a bed in his bedroom, dressed. Evidence was given that the front of the house was equipped with surveillance or monitoring equipment to detect entry and the applicant had four dogs at the back and side of the house. Two other men, Butler and Legge, were also present in the house. The evidence did not establish whether they were residents of it, but the applicant later replied affirmatively to Detective-Sergeant Ceritelli's question, "Do you agree that during the course of [a] search I took possession of some property from your premises", and at the scene participated in the following verbal exchange with that officer:

"Q       Do you normally have your doors locked?

A        Yes always.

QSo before anyone comes in to the house, you have to let them in, is that right?

A        Yes basically.  Yes or no [sic].

Q        Was Legge the person who was here this morning?

A        Yeah.

Q        What time did he arrive?

A        Can't be sure.

Q        Did you let him in?

A        No.

Q        Well how did he get in?

A        Well [Butler] was here too, he could have let him in."

In the loungeroom of the dwelling, Detective-Sergeant Ceritelli found a very large quantity of electrical equipment and in the middle of the room, in a carry bag in good, but not new, condition, a number of computer items which he described as "an Epsom printer, a UMAX scanner, a NEC reader - CD-Rom reader, a Mackintosh battery pack, computer software and computer booklets".  Detective-Sergeant Ceritelli asked the applicant where he had got the items from and the applicant replied, "The first time I've seen them was when youse came in".  To this he added, pointing to a printer in the bag, "I'm not sure about this though ¾ possibly".  A little later he was told that he had said he could have seen the printer before and said he could have bought it from an auction house called Gowan's for $10 - $20 or less.  All the goods were in packaging, which appeared to the officer to be very new, "as if they had come from the shop floor".  Asked whether he had been in the loungeroom that morning, he replied, "I'm unsure" and when asked "These items were in the loungeroom.  Surely you would have seen them", replied "I saw them when youse came in.  I just buy it and sell it."  Asked if he had a receipt for any of the items, he produced one for an Epsom printer other than the one in the bag.  The officer then said:

"You don't seem to be able to find a receipt to support your claim in relation to the items.  Having regard to the fact that these items were found in your loungeroom and that your house is very secure and that you have been unable to give me a satisfactory account of your possession of these items, I am of the reasonable belief that these items have been stolen or unlawfully obtained.  I do not believe that these items could have been inside your very secure house without you knowing that they were there."

1. Ground 1 of the notice to review complains that the learned magistrate erred in law and in fact in holding at the close of the prosecution case that he was satisfied that there was evidence to permit a finding that the applicant was found by Detective-Sergeant Ceritelli in possession of property reasonably supposed by the detective to have been stolen or unlawfully obtained.  The first leg of the argument was that there was insufficient evidence of a finding of the applicant in possession of the articles.  Clearly there must be evidence of a finding of the applicant in possession of the articles at the time the person finding him has the supposition.  In Purcell v Marshall (1931) 26 Tas LR 102 at 110, Clark J said:

   "There must be a finding of the person, and there must exist, as concomitants of the finding, the possession by the person found of an article reasonably supposed to have been stolen, and the fact of his inability to give a satisfactory account of his possession thereof.

   It is the possession of the article, the reasonable supposition that it has been stolen, and the inability of the person found to give a satisfactory account of his possession of it, which impresses on the finding its criminal character; but nevertheless, they are but facts which must exist as concomitants of, and which condition, the finding of the person.

   The finding must be an actual finding of the person ¾ a finding of the article only is not sufficient, notwithstanding that it can be established that in point of law the article was in the possession of the person charged.

   The enactment does not contemplate a notional or relational finding of the person by a finding of an article which in point of law is in his possession.  The finding must be one, which at once reveals the person and the article, and reveals the person so situated with respect to the article that the finding itself makes his possession of the article manifest."

2. In Balmer v Southern [1956] Tas SR 6, the complainant had observed the applicant in possession of a parcel in somewhat suspicious circumstances. It appears the applicant secreted the parcel under his car, which was parked outside the hospital where he was employed, and then returned inside the hospital. Thereafter the complainant found the parcel, discovered it contained meat, and formed the supposition that it had been stolen from the hospital where they both worked. Crisp J held that the applicant, though in possession of the meat while it was secreted under his car, had not been found in possession of it for the purposes of the section. In the present case, I think the evidence was sufficient to establish that the applicant was found to be in possession of the computer equipment by Detective-Sergeant Ceritelli, notwithstanding that it was located in another room of his house than the bedroom he was occupying at the time of its finding. Clearly the evidence supported a finding that the applicant was in possession of the premises and its contents and had the means of controlling entry of persons and goods to it. The finding was, in my view, one which at once revealed the person and the articles in question and revealed also the applicant so situated with respect to the articles that the finding itself made his possession of them manifest. It is not to the point that two other persons were present and may have brought the articles with them. Had there been any reason to suppose that they might have retained possession of them to the exclusion of the applicant, that might have militated against an ultimate finding beyond reasonable doubt in respect of the applicant 's possession; but in any event, no such reason is apparent in the evidence. Mr Zeeman placed reliance on a statement in cross-examination by Detective-Sergeant Ceritelli that after speaking to the applicant he needed to speak to the other two men, but I think it is clear that this did not amount to any concession that either of the men may have retained possession of the property or that he had any belief that they were in possession of it. Obviously if the property was stolen (and there was positive evidence from the owner's agent that it was), the police ought to have spoken to the other men, if only to establish any possible complicity by them in the theft of it. The so-called concession takes the matter no further than would be the situation had the applicant been found physically holding the goods.

1. I turn now to the evidence of supposition reasonably held.  Detective-Sergeant Ceritelli, in the course of his evidence, gave a number of reasons why he supposed the goods were stolen or unlawfully obtained.  It was incumbent on the prosecution to establish that the supposition attached to the property and not to the person in whose possession it was found (Weston v Smith [1963] Tas SR 27 at 37, Samoukovic v Brown A56/1993 at 5).

1. Detective-Sergeant Ceritelli gave evidence that he based his supposition on the fact that he was aware that similar property had been stolen and that he had information that stolen property (electrical items and tools) had been sold from the applicant's premises.  He also said that he relied on the applicant's statement that he could have purchased one particular item in the bag, while denying knowledge of the other equipment in it, and on the fact that the goods appeared very new.  He relied on the unsatisfactory explanations given in respect of the items and on the fact that they were found in a single bag in the middle of the loungeroom.  He did not rely on any one of these reasons as the sole basis of his supposition.  He said that the information he had of stolen property being sold from the premises was not first-hand, but had been obtained from other police officers in the CIB with whom he worked and who, in turn, had informants.  He conceded that this information alone would not have justified him in taking out a search warrant in respect of stolen property.  He thought it unusual to find all these apparently brand new items still in their packaging in a used carry bag on the floor of the loungeroom.  His acknowledgment that he could not say for sure at that time that the equipment was new did little to detract from the assertion that it looked to be very new and as if it had come from the shop floor.

1. For the purposes of determining whether there was a case to answer, there was clearly evidence of the existence in Detective-Sergeant Ceritelli of a supposition that the goods in question were stolen or unlawfully obtained.  Such a supposition must, however, be held on objectively reasonable grounds (Nicholas v Fleming [1959] Tas SR 165 at 166). While the possession of information that stolen property had been sold from the applicant's premises without even claiming to have procured this material from an informant of Detective-Sergeant Ceritelli was not sufficient on its own to make the supposition reasonable (O'Garey v King [1972] Tas SR 136, Weston v Smith (supra) at 39), the apparently brand new condition of the equipment was a cogent indicator of the objective reasonableness of the supposition, as was the acknowledgment that one of the items in the bag could have been his while he knew nothing of the other items. In my opinion, the learned magistrate had sufficient material upon which he could find a case to answer. Ground 1 has not been made out.

1. Ground 2 complains that the learned magistrate erred in law and in fact in holding that the prosecution had discharged its onus under the Act, s39. Ground 4 alleges that he likewise erred in holding that the complaint had been proved beyond reasonable doubt. Both grounds of appeal seem to amount to the same thing. The prosecution case was not the subject of any attack in terms of the credibility of any witnesses. The applicant chose not to give or adduce any evidence other than in respect of an unsuccessful voir dire hearing in respect of the admissibility of certain evidence.  In the absence of such a challenge and of any evidence to the contrary, it is not surprising that the learned magistrate having found that there was a case to answer, pronounced himself satisfied beyond reasonable doubt that the case was proved.  There was no basis for any claim that the verdict was unsafe or unsatisfactory.

1. Ground 3 alleges that the learned magistrate erred in law and in fact in holding that the applicant had not discharged the burden of giving a satisfactory account of his possession according to the civil standard.  The learned magistrate having found at the conclusion of the prosecution case that there was a case to answer in that there was evidence capable of sustaining findings that the applicant was found in possession of property reasonably supposed to have been stolen or unlawfully obtained, it was then open to the applicant to go into evidence if he so desired.  As I have said, he did not do so.  The prosecution tendered evidence of certain statements made by him, including self-serving statements that he had not seen the property prior to the arrival of the police and hence could not have been in knowing possession of it.  These statements, being in evidence, fell to be evaluated by the learned magistrate as part of the evidence in the entire case, but he was not obliged to accept the truth of them and it is clear that in the light of the remaining evidence, he did not do so.  In fact, he expressly said so.  The applicant at no stage, however, accepted that he had been in possession of the property and hence offered no explanation for his possession of it.  In the circumstances, the learned magistrate could not but have been satisfied that the applicant had failed to discharge the burden of giving a satisfactory account of his possession of the property.  In Samoukovic v Brown (supra), at 3, Zeeman J encapsulated the position when he said:

"… at the conclusion of the prosecution case on a charge under s39(1), it is open to the defendant to submit that he has no case to answer upon the basis that the evidence does not permit of a finding that the defendant was found by another person in possession of property reasonably supposed by that person to have been stolen or unreasonably [sic] obtained. If such a submission is upheld, then the prosecution fails. If it is not upheld, the defendant may go into evidence if he so desires. If he does not, then the court may convict, but only if it is then satisfied beyond reasonable doubt that the defendant was found by another person in possession of property reasonably supposed by that other person to have been stolen or unlawfully obtained. In that case nothing else is required before the court may convict because the absence of the giving of any account means that the condition precedent to conviction has been satisfied."

1. The final ground of appeal is that "the learned magistrate erred in law in that he failed in his decision to make reference to the ingredients of section 39 of the [Act]". The learned magistrate, at the conclusion of the submission of no case to answer, gave a detailed ruling in respect of the matters which he said would enable a court to be satisfied of the guilt of the applicant. When the latter declined to go into evidence, his counsel addressed submissions as to why the learned magistrate should not, in fact, be satisfied of guilt beyond reasonable doubt. However, he confined the submission to one that the court could not be satisfied beyond reasonable doubt that the applicant was found in possession of the property, mainly because of the presence of the other two men. He did not address argument on the issue of reasonable supposition. When the learned magistrate made his findings, he likewise did not specifically deal with the latter issue, but made a finding beyond reasonable doubt that the applicant was found in possession of the property and noted that no account of his possession of it had been given. He found the offence proved. In Warren v Manning 14/1971, Chambers J said, at 4:

"Where a Magistrate has not announced a specific finding of the facts on which he bases a decision to convict, an appellate court is entitled to assume, in the absence of indications to the contrary, that he has found every fact necessary to support it.  Authority for this proposition is to be found in Hawe v Cassidy (1907) St R Qd 21 and Keable v Clancy (1909) St R Qd 345."

There are no indications to the contrary that the learned magistrate did find each ingredient of the charge proved.  He had found the existence of evidence sufficient to support findings beyond reasonable doubt when dealing with the no case to answer submission and no effort was made to persuade him not to make such findings, save in respect of the issue of possession.  Accordingly, I see no reason for not accepting that in announcing that he had found the complaint proved, he found positively each element had been proved.  The appeal will be dismissed.