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

1. 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.

2. Nevertheless, I shall treat the grounds of appeal which accompany the appellants' case as effectively grounds of appeal against the decision of Templeman J.

3. 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 evidence, to discharge the burden of proof beyond a reasonable doubt.

The facts

1. The appellants both resided at Morgan Way, Girrawheen.  The appellant, Mrs Hoskins, owned a Homeswest property at Glendale Mews, Ballajura (Glendale Mews), and in that property her adult son, Zane Hoskins resided. 

2. On 25 June 2005, police executed a search warrant at Glendale Mews.  They seized 426 items.  These items included jewellery, household items, manchester, perfume, beauty products, DVDs, games and a laptop computer. 

3. A search warrant was also executed at Morgan Way, Girrawheen, but no property was seized at that address.

4. Following police seizure of the property at Glendale Mews, advertisements were placed in the media to the effect that items of jewellery which had been seized by police were available for inspection by the public. Several people came forward. They identified items of jewellery which they claimed to have been stolen from them in the course of home burglaries. In consequence, the appellants were charged with 22 offences against s 428 of the Criminal Code.  That section, which was inserted into the Criminal Code by the Criminal Law Amendment (Simple Offences) Act 2004 (WA), s 28, is in the following terms:

   (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 an offence and is liable to imprisonment for 2 years and a fine of $24 000.

   (2)It is a defence to a charge of an offence 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.

Hearing in the Magistrates Court

1. The charges against the appellants were heard in the Midland Magistrates Court. The hearing began on 30 June 2006 and proceeded over the following 11 months. On 17 May 2007, the magistrate reserved her decision. It was delivered on 10 August 2007 and the appellants were convicted of 13 charges against s 428 of the Criminal Code.  They were acquitted on the remaining nine charges. 

2. The magistrate delivered reasons.  Extracts from these reasons are contained within the judgment of Templeman J in Hoskins v Ramsden [2008] WASC 28 [12] et seq.

3. The magistrate properly understood the ingredients of the offences alleged, the onus and standard of proof applicable to the prosecution generally and the standard of proof applicable to the defence under s 428(2).

4. When considering the evidence before her, the magistrate noted that a number of witnesses said that certain items of jewellery which they identified 'appeared to be theirs', although they were not '100% certain' that they were. Nevertheless, the magistrate was satisfied beyond reasonable doubt that, where convictions were recorded, they were in respect of items which were reasonably suspected of being stolen within the meaning of s 428(1) of the Criminal Code. To the extent that the appellants raised the defence under s 428(2), that defence was not made out.

Decision of Templeman J

1. The grounds of appeal before Templeman J included grounds of appeal against sentence, but relevantly to the appeal against conviction they were:

   1.There was a miscarriage of justice in that the Magistrate misdirected herself and misapplied the correct test of the law under Criminal Code s 428(1).

   i.The Magistrate failed to require that for a conviction to stand under Criminal Code s 428(1) the prosecution must show beyond reasonable doubt all of the elements of the crime.

   ii.The Magistrate failed to require that the prosecution must show that there was 'reasonable suspicion' beyond a reasonable doubt.

   2.In the alternative, there was a miscarriage of justice in that the Magistrate misdirected herself on the correct test of the law under Criminal Code s 428(2).

   i.The magistrate failed to require that the standard of proof required of the appellant under s 428(2) was lower than that required by the prosecution under s 428(1).

   3.The result of the miscarriage of justice was that the Magistrate convicted the appellant:

   i.Against the weight of the evidence presented at trial, and,

   ii.Inconsistently to the acquittals.

2. The primary submission to Templeman J on the hearing of the appeal against the convictions of the appellants was that the test for determining whether an item could be reasonably suspected as being stolen or otherwise unlawfully obtained was, in the case of mass produced jewellery, that the complainant witnesses 'be 100% certain in their identification'. 

3. Templeman J refused to accept this submission.  His Honour said:

   I am quite unable to accept this submission. It runs counter to s 428(1) of the Criminal Code because a reasonable suspicion that something has been stolen must fall short of certainty. Put another way, if the test required the court to be certain that an item had been stolen, s 428 would have been unnecessary. However, the justification for the amendment of the Criminal Code in 2004 to insert s 428 was that it would relieve the prosecuting authority of the requirement to prove that items had been stolen: see the Second Reading Speech of the Criminal Law Amendment (Simple Offences) Bill 2004 reported in Hansard, 23 September 2004, page 6533. [31]

4. Templeman J considered the evidence in relation to each of the charges in respect of which the property consisted of individual pieces of jewellery. He noted that, in each case, a witness gave evidence that the jewellery had been stolen from her. The witnesses identified the jewellery 'with various degrees of certainty' [35]. His Honour considered that the magistrate was entitled to be satisfied beyond reasonable doubt that there was a reasonable suspicion that the relevant items of jewellery had been stolen from the witnesses. The fact that the magistrate had seen the witnesses was considered to be a matter of importance:

   Of course, I have not had the advantage of seeing and hearing the witnesses give their evidence.  However, there can be no doubt that it was open to the magistrate, on the evidence of the prosecution witnesses, to reach the conclusions she did in relation to each of the charges relating to individual items of jewellery.  [40]

5. Two charges related to a bag of jewellery.  This bag had been found under a washing machine at Glendale Mews during the course of the police search. 

6. Templeman J considered that the magistrate was entitled to have regard to video evidence of the search which revealed the circumstances in which the bag was found.  The bag was under a washing machine.  It was a plastic bag.  The magistrate said that it appeared to her that there had been 'a clear attempt to hide it', adding, 'It appears suspicious to hide jewellery in that manner ... the location of it alone in my view raises a reasonable suspicion that it was stolen or unlawfully obtained'. 

7. Templeman J held [52] that, viewed objectively, it was open to the magistrate on the evidence before her to be satisfied beyond reasonable doubt that there was a reasonable suspicion that the contents of the bag had been stolen or unlawfully obtained. 

8. Two charges related to a laptop computer.  There was evidence given by the manager/owner of a Retravision store in Mandurah that he had reported a burglary committed at his store on 8 April 2002, when an Acer laptop computer was stolen.  The computer had a serial number.  It was the same serial number as found on a computer located during the execution of a search warrant at Glendale Mews. 

9. The defence called evidence from a serving prisoner that police had confiscated a laptop computer from his home in early 2002.  It was a computer which he claimed had been given to him by a friend.  He said that, in mid‑2004, the computer was returned to him and he signed for it at the Perth Watch House.  He said it had a sticker on it showing that it was property which had been cleared by the police.  He claimed that, shortly afterwards, he had offered the computer to the appellants for use by their grandchildren.

10. A police officer who was at Glendale Mews when the search warrant was executed said that it had no sticker on it when it was seized.  The serial numbers on it had been removed, other than one found underneath the battery compartment. 

11. Templeman J considered that it was open to the magistrate to conclude that it was reasonable to suspect that the laptop computer seized from Glendale Mews was the same computer as that stolen from the Retravision store in Mandurah. 

12. There was a second ground of appeal before Templeman J which related to the standard of proof.  It is not pursued on this application for leave to appeal.

Grounds upon which leave to appeal is sought

Ground 1

1. This ground contends that, in a case in which an offence against s 428 of the Criminal Code is alleged, the prosecution must 'positively identify and establish that the thing was derived from (a) previous offence in order to discharge the burden of proof beyond a reasonable doubt'. 

2. This ground is essentially a repetition of what was put to Templeman J. In my opinion, it is misconceived. There is no obligation imposed by s 428 for there to be 'positive identification' that an item reasonably suspected of having been stolen or unlawfully obtained was, in fact, stolen from a particular person. As Templeman J pointed out [31], a reasonable suspicion that something has been stolen must fall short of certainty.

3. In my opinion, ground 1 has no reasonable prospects of success and leave should be refused in relation to it:  Criminal Appeals Act 2004 (WA), s 27(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

Ground 2

1. This ground contends that it is insufficient for a witness to identify a thing in order for there to be proof that it is reasonably suspected of being stolen or unlawfully obtained, unless there is corroborating evidence. 

2. This ground was not raised before Templeman J and it cannot properly be raised on an application for leave to appeal from Templeman J's decision.

3. 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.

4. 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.

5. 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).

6. 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.

7. 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.

8. There is nothing in s 428 of the Criminal Code to suggest that, in the absence of corroborating evidence, the prosecution will be unable to prove a case beyond reasonable doubt.

9. The submissions of the appellants speak of a need for 'corroboration', but the cases cited in support of that proposition do not, in fact, stipulate that there should be corroboration of the evidence of witnesses who identify property in the possession of another as property stolen from them.  By way of example, Ryan v Dimitrovski (1996) 16 WAR 457 makes no mention of the issue of corroboration or the requirement for it. The case was concerned with the question whether the respondents had some measure of control over the property which it was alleged they had in breach of the provisions of s 69 of the Police Act.  The earlier case of Baldock v Douglas (1953) 56 WALR 82 was concerned with the question whether the appellant when questioned about a quantity of wooden blocks in respect of which he was charged with being in unlawful possession had made statements which could be interpreted as admissions of having stolen those blocks.

10. In my opinion, the second ground of appeal is misconceived.  I consider it has no reasonable prospects of success and leave should be refused in relation to it.