Hoskins v Ramsden - [2008] WASCA 139

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HOSKINS -v- RAMSDEN [2008] WASCA 139

CORAM: MILLER JA

HEARD: 27 JUNE 2008

DELIVERED : 3 JULY 2008

FILE NO/S: CACR 48 of 2008
CACR 49 of 2008

BETWEEN: HELEN LORRAINE HOSKINS
DENICE BETTY PEARSON
Appellants
AND
ANDREW JOHN RAMSDEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :TEMPLEMAN J
Citation  :HOSKINS -v- RAMSDEN [2008] WASC 28
File No  :SJA 1074 of 2007, SJA 1075 of 2007

Catchwords:

Criminal law - Leave to appeal - Convictions - Possession of things reasonably suspected of being stolen - Whether offences proven beyond reasonable doubt - Whether corroborating evidence required

Legislation:

Criminal Appeals Act 2004 (WA), s 27(2)
Criminal Code (WA), s 428
Criminal Law Amendment (Simple Offences) Act 2004 (WA), s 28, s 59
Evidence Act 1906 (WA), s 50
Police Act 1892 (WA), s 69

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellants: Mr H Sklarz
Respondent: No appearance

Solicitors:

Appellants: Henry Sklarz
Respondent: No appearance

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

Baldock v Douglas (1953) 56 WALR 82
Grant v The Queen (1981) 147 CLR 503
Hoskins v Ramsden [2008] WASC 28
Ryan v Dimitrovski (1996) 16 WAR 457
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

MILLER JA: This is an application for leave to appeal from a decision of Templeman J delivered on 7 March 2008, when his Honour dismissed the appellants' appeals against conviction on 13 charges of offences against s 428 of the Criminal Code (WA). The grounds of appeal mistakenly concentrate upon the convictions of the appellants before the magistrate and they do not formulate grounds of appeal from a decision of Templeman J.
Nevertheless, I shall treat the grounds of appeal which accompany the appellants' case as effectively grounds of appeal against the decision of Templeman J.
The grounds are expressed in the following terms:
1.There was an error of law in the conviction of the Appellants because when the State alleges that a thing is reasonably suspected of being stolen or unlawfully obtained under Criminal Code (WA) section 428, by reason of a previously committed offence (such as burglary) then the State must positively identify and establish that the thing was derived from that previous offence in order to discharge the burden of proof beyond a reasonable doubt.
2.There was an error of law in the conviction of the Appellants because when the State alleges that a thing is reasonably suspected of being stolen or unlawfully obtained under Criminal Code (WA) section 428 and by the nature of that thing it is not possible to positively identify or discriminate it from other such things of the same type (such as stock standard jewellery), then the advancing of a witness to identify the thing in order to raise the ground of reasonable suspicion, is not enough in the absence of corroborating…

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 Hoskins v Ramsden

Details

AGLC: Hoskins v Ramsden [2008] WASCA 139
Case: [2008] WASCA 139
Decision Date: 3 JULY 2008

CaseChat Overview and Summary

The case of Hoskins v Ramsden was heard by the Supreme Court of Western Australia. The primary dispute involved the conviction of the appellants under Section 428 of the Criminal Code, which pertains to the possession of property reasonably suspected of being stolen. The appellants were convicted of this offence and sought to appeal the decision, raising several grounds for their appeal.

The court was tasked with determining whether the provisions of Section 428 of the Criminal Code required corroboration of evidence in order to convict a person of possession of property reasonably suspected of being stolen. Additionally, the court had to assess whether the offences for which the appellants were convicted were proven beyond reasonable doubt. A key issue was the interpretation of Section 428 in light of previous statutory provisions and the legislative intent behind its enactment.

In addressing these issues, the court examined the legislative history and the language of Section 428. The court found that Section 428 did not explicitly require corroboration, aligning with the view that the focus had shifted from requiring corroboration to providing police with greater powers to address criminal behaviour involving possession of suspected stolen property. Furthermore, the court held that the provisions of Section 50 of the Evidence Act 1906 had effectively eliminated the need for corroboration warnings in certain cases. The court also concluded that the evidence presented was sufficient to support the appellants' convictions beyond reasonable doubt.

The court upheld the convictions, affirming that the appellants' appeal grounds lacked merit. No further orders were required as the convictions were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In any event, there is no substance to the ground, because s 428 does not in its terms require corroboration in a material particular, or otherwise of evidence given by any person that an item of property was stolen from them. Further, the provisions of s 50 of the Evidence Act1906 (WA) have dispensed with the requirement that in certain cases (emphasis added), it is unsafe to convict a person on the uncorroborated evidence of a witness. Section 50 is in the following terms:50.Corroboration warnings not generally required(1)In this section 'corroboration warning' in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.(2)On the trial of a person on indictment for an offence -(a)the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and(b)the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances. Counsel for the appellants relies upon the provisions of s 69 of the Police Act1892 (WA) (repealed by the Criminal Law Amendment (Simple Offences) Act 2004, s 59). Section 69 of the Police Act read as follows:69.Possession of property reasonably suspect to be unlawfully obtained Every person who shall be brought before any Justice charged with having on his person or in any place, or conveying, in any manner any thing which may be reasonably suspected of being stolen or unlawfully obtained, and who shall not give an account to the satisfaction of such Justice how he came by the same, shall be liable to a penalty of not more than $2 000, or in the discretion of the Justice may be imprisoned for any term not exceeding 2 years. Prosecutions for offences under s 69 and the equivalent of that section in comparable legislation in other States required the courts to impose a strict construction upon the words which outlined the elements of the offence. This was because the courts recognised 'the extraordinarily serious character of the law which authorises the arrest of a person on mere suspicion, to be followed by his conviction and possible imprisonment unless he satisfies the court that he had no reasonable grounds for suspicion that the thing in his custody bore the taint of illegality' (Grant v The Queen (1981) 147 CLR 503 507 (Gibbs CJ, Mason, Aiken & Wilson JJ). There was nothing in s 69 of the Police Act which required, as a matter of law, corroboration in the sense that the appellants use that term in ground 2 of the grounds of appeal. In any event, s 428 of the Criminal Code appears to have 'changed the focus'. In Criminal Law Western Australia (ed Weldon, vol 1, page 2530) there appears the following passage:[W]hen it came to the reform and deletion of many summary offences in 2005, the legislature clearly enacted s 428 of the Criminal Code to replace s 69 of the Police Act 1892. It seems, though, that the focus may have changed. In introducing s 428, the Attorney General said that:The Bill also addresses the issue of possession of illegally obtained property, adding further strength to the Government's strategy to combat burglary in this State. Previously, police have been powerless to deal with the situation when suspected criminals involved in drug trafficking or burglary are found with large amounts of money and property that they cannot account for,An amendment contained in the Criminal Law Amendment (Simple Offences) Bill 2004 will give police greater powers for dealing with this kind of criminal behaviour, enabling them to charge a person if there are reasonable grounds for suspecting that the person has stolen or otherwise unlawfully obtained property or wealth.Moreover, the new s 428 is based on a recommendation of the WA Law Reform Commission, which in its 1992 report on summary offences said that:The Commission recognises that there is a need for an offence relating to possession of property which may be reasonably suspected of being stolen or, otherwise, unlawfully obtained, to deal with cases in which the evidence is insufficient to justify a charge of stealing or receiving.