Hoskins v Ramsden [No 2]
[2009] WASCA 90
•3 JUNE 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HOSKINS -v- RAMSDEN [No 2] [2009] WASCA 90
CORAM: WHEELER JA
PULLIN JA
BUSS JA
HEARD: 5 FEBRUARY 2009
DELIVERED : 3 JUNE 2009
FILE NO/S: CACR 48 of 2008
CACR 49 of 2008
BETWEEN: HELEN LORRAINE HOSKINS
DENICE BETTY PEARSON
AppellantsAND
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 - Appeal against conviction - Possessing stolen or unlawfully obtained property - Whether item alleged to have been stolen must be identified "beyond reasonable doubt"
Legislation:
Crimes Act 1900 (NSW), s 527
Criminal Code (WA), s 428
Police Act 1892 (WA), s 69
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellants: Mr H Sklarz
Respondent: Ms J C Pritchard
Solicitors:
Appellants: Henry Sklarz
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Hoskins v Ramsden [2008] WASCA 139
McLennan v Campbell [2003] WASCA 145
Nicholls v Young [1992] 2 VR 209
R v Chan (1992) 28 NSWLR 421
R v Porter (2004) 61 NSWLR 384
Ruddock v Taylor [2005] HCA 48
WHEELER JA:
Background to this application
On 10 August 2007, the appellants in this matter, Helen Hoskins and Denice Pearson, were each convicted in the Magistrates Court of 13 counts of possessing stolen or unlawfully obtained property contrary to s 428 of the Criminal Code (WA), which reads:
428 Possessing stolen or unlawfully obtained property
(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.
They were both acquitted of a further nine charges. The appellants appealed both conviction and sentence (a $15,000 fine). Templeman J dismissed these appeals. The appellants then applied for leave to appeal to the Court of Appeal. Miller JA refused them leave to appeal. The appellants seek a review of that decision.
The facts giving rise to the appellants' convictions were as follows. On 15 June 2005, police executed a search warrant at Unit 5, 8 Glendale Mews, Ballajura, which was a Homeswest property of which Ms Hoskins was the named tenant, though she did not in fact reside there. She resided with Ms Pearson at Girrawheen; the appellants had resided together for many years. Ms Hoskins' son, Zane, lived in the Ballajura unit and was present during the search. As a result of this search, 426 items were seized, including jewellery, household items, manchester, perfume and beauty products, DVDs, games, and a laptop computer. The manchester items were, in many cases, unopened and unused, and some were multiples of the same items. Many of the perfumes and beauty products were unopened, as were other household items, electrical goods and clothing. Of the approximately 250 DVDs, some were multiple copies of the same film.
A bag of jewellery was located underneath the washing machine. Mr Zane Hoskins told police during the search, which was video‑recorded, that his mother had brought the jewellery to the house and he had hidden it under the washing machine as it contained a lot of jewellery and he felt it was suspicious. The search video was played to the court. In evidence, Zane Hoskins retracted his earlier statement, and suggested that the bag came to be under the washing machine because "I could have dropped it". Jewellery was also found in other locations in the unit.
Following advertisements which were placed in the media stating that the jewellery was available for inspection by the public, several people identified items of jewellery which they claimed had been stolen from them when their homes had been burgled or their handbags stolen. The procedure followed was that the witness was first shown photographs. If the witness claimed an item belonged to her, the offence report was checked. Only if a corresponding item was found on the offence report, was the witness shown the physical item. The following items were identified by various victims of theft:
•A snake chain, broken and welded together again, identified by a Mrs Holland.
•A double link chain bracelet with a heart shaped padlock, identified by a Mrs Smith.
•A gold cross link chain bracelet identified by a Mrs Jones.
•A white gold, platinum and sapphire ring identified by a Mrs Gowl as one she had owned for 20 years.
•A gold ring identified by a Mrs Cox as one she had owned for 10 years, which was made from stones left to her by her father.
•A gold ring indentified by a Mrs Kerrwin as one she had owned for 18 years.
•A pair of pearl earrings identified by a Mrs Maclean.
•A heart shaped pendant, hoop earrings with clear stones, a chain, and a single hoop earring identified by a Mrs Camps.
•A freshwater pearl necklace identified by a Mrs Yannakis as one she had owned for 15 years.
•A pair of white, yellow and red gold earrings identified by a Ms Sigurgeirsson as a pair she had purchased in Iceland and owned for 9 years.
•A ring identified by a Mrs Fleming.
•A pair of earrings identified by a Ms Bowman as a pair that had belonged to her grandmother, which she had been given on her 21st birthday, and owned for 10 years.
The degree of certainty, and the reasons given for identification, varied from witness to witness. Much of the jewellery appears to have been of relatively common design, but some, like the earrings identified by Ms Bowman (being a star design, and previously belonging to her grandmother) were distinctive. When they came to give evidence, some witnesses were "100 percent certain" that the item belonged to them, while others described an item as one that "looked like" something stolen from them (in the case of rings, the witnesses also gave evidence that the rings were the correct size).
Ms Pearson claimed in an interview with police that the jewellery belonged either to herself, Ms Hoskins, or Ms Hoskins' mother. Ms Hoskins said simply that the jewellery was not stolen. The appellants, in their evidence, gave differing versions of how much of the jewellery was obtained. For example, Ms Pearson claimed the broken snake chain identified by Mrs Holland belonged to Ms Hoskins; while Ms Hoskins claimed it belonged to Ms Pearson. Ms Hoskins initially claimed the ring identified by Mrs Cox was her mother's; she then claimed it was given to her by a gentleman she would prefer not to identify. Ms Pearson claimed that the necklace identified by one Mrs Yannakis had belonged to Ms Hoskins' mother; Ms Hoskins said she purchased it from Shiels (magistrate's reasons at [121]).
In evidence, Ms Pearson produced copy receipts and bank statements to explain how some items had been acquired. Some appeared to have been altered by the use of "liquid paper", however. In addition, other witnesses were called, who described Ms Hoskins as a "shopaholic" and a "hoarder".
All but one of the serial numbers on the laptop located during the search had been removed. The remaining serial number on the laptop matched that of a laptop stolen from a Retravision store in Mandurah. The defence led evidence that this computer had been given to a Mr Blay by a friend, as a birthday present. He knew he was going to prison, so he loaned the computer to the appellants for their grandchildren to use.
Reasons of Magistrate Edwards
Magistrate Edwards, in her written reasons at [9] ‑ [10], stated that under s 428, the prosecution had the burden of proving that the appellants were in possession of a thing capable of being stolen that was reasonably suspected of being stolen or unlawfully obtained. The appellants then had the burden of satisfying the court that they had no grounds for suspecting that any item was stolen or unlawfully obtained. Possession was not denied by either appellant, she said, and both said that the items in question were their property. Similarly, no issue was taken with the description of the property as "capable of being stolen". On the final issue, her Honour said, at [19]:
I must be satisfied beyond reasonable doubt that one reasonable suspicion open on the evidence is that the things in question in each charge might have been stolen or unlawfully obtained. To do that, all the surrounding circumstances as well as the particular circumstances, if any, which relate to any of the charges, need to be considered.
Her Honour was satisfied that there was a suspicion that the laptop computer was the same laptop stolen from Retravision in Mandurah. In relation to the manchester items, perfume, DVDs and so on, her Honour's reasons were to the effect that the sheer quantity of items, the fact of there being multiples of many, and their unopened condition, led to a reasonable suspicion that they were unlawfully obtained. So far as the jewellery was concerned, her Honour was satisfied that the evidence of the witnesses identifying particular items was sufficient to establish a reasonable suspicion that each item had been unlawfully obtained, save for the case of some earrings in respect of which the witness, Mrs Maclean, had said that she was not certain the earrings were hers (because "earrings are earrings"). Given that these earrings were found with so many items which were reasonably suspected of being stolen, this might be regarded as a finding generous to the appellants. In relation to some items, no evidence was led identifying them as having been seized from the unit. Those charges were dismissed.
Having found reasonable suspicion, based effectively on the prosecution case, the onus then shifted to the appellants. There was no challenge, in these proceedings, to her Honour's adoption of a two‑step process of this kind. In relation to the onus borne by the appellants, her Honour's findings were as follows. As to the manchester and household items generally, her Honour found that the appellants had satisfied her on the balance of probabilities that the items had been lawfully obtained. As to the computer, she found that the only inference open was that it had been stolen, and rejected the evidence concerning the transaction involving Mr Blay.
In relation to the jewellery, although her Honour dealt briefly with each item, there was a degree of overlap in her reasons. She noted that the appellants had given no credible reason for keeping jewellery they owned at premises they did not occupy (at [132]). She found neither appellant a compelling witness, in respect of some items (at [133]) and noted the discrepancies in their explanations in respect of other items (for example, at [143]). In each case she considered that the appellants had not discharged the onus resting upon them.
Reasons of Templeman J
Templeman J said, at [16] of his reasons, that the statement of law set out by the magistrate at [19] of her reasons, and repeated above, was entirely correct. However, counsel for the appellants argued that the approach taken by the magistrate in relation to Mrs Maclean's earrings ought to have been taken in relation to every charge. In other words, the test for "reasonable suspicion" in cases such as these, where, it was asserted, the jewellery in question is mass‑produced, is that a witness be 100% certain in their identification of the stolen item (at [30]). As appears from my earlier summary of evidence, characterising all of the jewellery as "mass‑produced" would appear to be an over‑simplification. In any event, Templeman J was "quite unable to accept this submission" (at [31]). His Honour was of the opinion that if certainty that an item were stolen was required, s 428 of the Criminal Code would be unnecessary. The legislative intent behind s 428 was to relieve the prosecuting authority of the requirement to prove that items had been stolen (at [31]).
Reasons of Miller JA
The first ground of proposed appeal before Miller JA contended that, to prove a charge under s 428, there is a requirement that the prosecution positively identify and establish that the item in question was derived from a previous offence (Hoskins v Ramsden [2008] WASCA 139 at [24]). His Honour was of the opinion that this ground had no reasonable prospects of success, as a reasonable suspicion, as required by s 428, must fall short of certainty.
The second ground before Miller JA contended that corroborating evidence is required where a witness identifies an item which is reasonably suspected of being stolen or unlawfully obtained. His Honour stated that, as this ground was not raised before Templeman J, it could not be raised before him in an appeal against the decision of Templeman J (at [28]). In any event, his Honour said that there was no substance to this ground, as s 428 does not require corroboration.
This appeal
The appellants seek a review of the decision of Miller JA. An extension of time is required. The delay arose because the appellants initially sought to appeal the decision of Miller JA to the High Court. An application for special leave was lodged with the High Court on 30 July 2008. The respondent in this matter informed the appellants on 12 August that that application would be opposed on the grounds that the appellants had not exhausted all avenues of appeal within Western Australia. The appellants then filed an appeal notice with the Court of Appeal on 8 September 2008.
Formally, the appellants seek a review on two grounds:
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 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.
However, this second ground was abandoned by the appellants, as appears below.
The appellants' case
The appellants' counsel agreed, at the hearing of these appeals, with the following summary of his case:
[W]henever ... the prosecution calls a witness to say that an item is or resembles an item that was stolen from them [that] the state then has the burden of proving beyond a reasonable doubt that that item was in fact the identical item stolen and [that] it is not open to the court to have regard to that evidence together with all the surrounding circumstances to form a reasonable suspicion. (ts 10)
...
[I]f witnesses are called and those witnesses happen to give evidence that, "This looks like a piece of jewellery that was stolen from me", then in those circumstances there cannot be a conviction unless the magistrate is satisfied beyond reasonable doubt that that self‑same piece of jewellery was in fact stolen from that particular witness. (ts 12)
He agreed that this was the sole issue on review. He agreed that the appellants did not submit that corroboration was "necessarily" required, and acknowledged "... we have gone off on somewhat of a tangent with questions of corroboration" (ts 11).
Later in the transcript, the following exchange appears:
PULLIN JA: You could never get a conviction then in a case where somebody could not identify a particular product like - say, there were 50 bags of wheat stolen from a farmer and his neighbour is found with 50 bags of wheat stacked in his bedroom, covered up with blankets, and the farmer is called and says, "A hundred bags of wheat was stolen from me but I cannot say that the wheat in these bags and the bags are the bags and wheat stolen from me." So you would then say that he couldn't be convicted of the offence under section 428 because the farmer could not positively identify the wheat in the bags?
SKLARZ, MR: Yes, because ‑ ‑ ‑
WHEELER JA: Although, oddly, he could be if you didn't call the farmer.
SKLARZ, MR: Yes, that's what we say.
PULLIN JA: So do you say that? If you didn't call the farmer ‑ ‑ ‑
SKLARZ, MR: Yes ‑ ‑ ‑
PULLIN JA: ‑ ‑ ‑ you would say a reasonable suspicion would arise from the fact that he couldn't produce any dockets; he denied that he had any wheat in his back bedroom ‑ ‑ ‑
BUSS JA: Where it was hidden.
WHEELER JA: Hadn't grown any.
PULLIN JA: Hadn't grown any and yet had this wheat covered up.
SKLARZ, MR: Yes.
PULLIN JA: So you could have a reasonable suspicion then.
SKLARZ, MR: Yes.
PULLIN JA: But not a reasonable suspicion if the farmer next door is called to say, "I had exactly 50 bags of wheat stolen that look exactly like these 50 bags of wheat, but I can't positively say."
SKLARZ, MR: Yes. (ts 17 ‑ 18)
And, finally:
PULLIN JA: I have written down you are contending that the magistrate made an error of law in construing the section because the phrase "thing ... reasonably suspected to be stolen" means "thing reasonably suspected to be stolen" and then you add in the words "based on evidence that the thing was proved beyond reasonable doubt to be stolen." Is that what you are saying how the section should be read?
SKLARZ, MR: Yes, yes. (ts 21)
The proper construction of s 428
The construction contended for by the appellants is not correct. The distinction between proof beyond reasonable doubt, and suspicion (reasonable or otherwise) is fundamental to the criminal law, and there is no reason to suppose that when Parliament used the latter term, it intended the former. All authority dealing with similar legislation appears to be consistent with what I would understand as the plain meaning of the section.
It follows that an interpretation in which a "beyond reasonable doubt" identification of an item is a requirement where it is alleged that an item, suspected to have been stolen, is related to a specific theft, is inconsistent with the plain meaning of the word "suspected". As Smith J said in Nicholls v Young [1992] 2 VR 209 at 214, "[i]t is in the nature of suspicions that it is possible to hold more than one suspicion at the same time and to hold suspicions which are inconsistent".
Dealing with s 527C of the Crimes Act 1900 (NSW), in R v Porter (2004) 61 NSWLR 384, Spigelman J said, in reasons with which Barr and Hoeben JJ agreed, at [28]:
... In my opinion, the offence is intended to encompass circumstances in which the provenance, including the geographical provenance, of goods in custody is unknown. Other offences, both at common law and by statute, of dealing with unlawfully obtained goods do contain elements which require proof that a thing has in fact been stolen or unlawfully obtained. An important purpose of having an offence which turns on 'reasonable suspicion' is to cover situations in which such an element cannot be established.
In R v Chan (1992) 28 NSWLR 421, Abadee J said, of s 527C of the Crimes Act (at 433), that "where bank notes are involved, because of their very nature and kind, actual proof that they were stolen or unlawfully obtained could be difficult or even impossible" and so the "argument that the relevant statutory 'reasonably suspected' cannot be found in the absence of some actual evidence identifying the very bank notes with some general criminal activity or specific crime, should thus be rejected". The same may be said regarding mass produced jewellery.
Section 527C is not identical to s 428 of the Criminal Code as, among other differences, it refers to a thing which "may be" reasonably suspected of being stolen or otherwise unlawfully obtained, rather than a thing which "is" reasonably suspected. However, the sections are so similar that the same reasoning would apply to both.
In this State, in considering the former s 69 of the Police Act1892 (WA), Pullin J concluded that the expression "reasonable suspicion" indicated a minimum and not a maximum as regards proof, so that a conviction would not be precluded if the evidence justified a certainty greater than "suspicion": McLennan v Campbell [2003] WASCA 145. It follows from his Honour's reasons that the section does not require any certainty greater than suspicion to be established.
There is some controversy in the authorities concerning whether, if it is proved beyond reasonable doubt that particular property was stolen, a person can be convicted of having possession of property "reasonably suspected" of having been stolen, in respect of the same property. Some cases hold, or appear to hold, that conviction will be precluded if the proof rises so far above suspicion as to amount to proof beyond reasonable doubt: Ruddock v Taylor [2005] HCA 48 (McHugh J) at [71] ‑ [89]. Those cases, however, if correct, would not assist the appellants, since they stand for a proposition precisely the reverse of that for which they contend.
Conclusion
I would not extend time. The delay between conviction in August 2007 and the notice of appeal in September 2008 is only partially explained by the attempt to obtain special leave, and the ground which the appellants seek to raise has no reasonable prospect of success.
PULLIN JA: I agree with Wheeler JA.
BUSS JA: I agree with Wheeler JA.
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