Le v Feakes
[2018] WASC 331
•6 NOVEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: LE -v- FEAKES [2018] WASC 331
CORAM: HALL J
HEARD: 17 OCTOBER 2018
DELIVERED : 6 NOVEMBER 2018
FILE NO/S: SJA 1043 of 2017
BETWEEN: CHI NGAI LE
Appellant
AND
ANDREW FEAKES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE WHEELER
File Number : PE 43052/15
Catchwords:
Criminal law - Appeal against conviction - Possession of cash reasonably suspected of being unlawfully obtained - Whether magistrate addressed element of reasonable suspicion - Whether the verdict was unreasonable or unsupported by the evidence
Legislation:
Criminal Code (WA), s 417
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr M Gunning |
| Respondent | : | Ms MM Yeung |
Solicitors:
| Appellant | : | Gunning Young |
| Respondent | : | State Director of Public Prosecutions |
Case(s) referred to in decision(s):
Caratti v Potts [2015] WASC 86
Evans v Kelly [2012] WASC 148
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Hoskins v Ramsden [No 2] [2009] WASCA 90; (2009) 196 A Crim R 77
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McLennan v Campbell [2003] WASCA 145
Nyoni v Murphy [2014] WASCA 70
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1996) 115 CLR 266
Ryan v Dimitrovski (1996) 16 WAR 457
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Whittle v Brown [2011] WASC 143
HALL J:
On 10 July 2017, the appellant was convicted after trial in the Magistrates Court of a charge of being in possession of a thing capable of being stolen, namely $10,400 in cash, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA). He seeks leave to appeal against this conviction on two grounds.
For the reasons that follow I am not satisfied that either of the grounds of appeal has a reasonable prospect of succeeding.[1] Accordingly, leave to appeal is refused and the appeal is dismissed.
[1] Section 9(2) of the Criminal Appeals Act 2004 (WA).
The prosecution case
The prosecution case was that on 24 July 2015, Australian Border Force officers intercepted a sealed DHL envelope addressed to the appellant. The envelope stated that the sender was a person in the Czech Republic. A customs declaration stated that the contents consisted of a document. The parcel was opened and found to contain 18 sheets of perforated blotter paper consisting of 5,040 individual blotter tabs that were concealed amongst what appeared to be banking documents. Two pages of the banking documents had been glued together concealing a clipseal bag of powder. The number 10 had been written on the clipseal bag in black marker pen, and the estimated net weight of the powder was 10 g.[2]
[2] Statement of Jarrad Brian Kakoschke, par 3 - 10 (Exhibit 2).
On the morning of Wednesday, 29 July 2015, Australian Border Force officers and West Australian police officers executed a search warrant at the home of the appellant. Prior to the commencement of the search, the appellant showed the officers a clipseal beef jerky packet on his bed which contained $10,400 in cash.[3] The cash consisted of $10,000 in $50 notes and $400 in $100 notes.[4] The appellant stated that the cash belonged to a friend, Choong Hwong, who he said was now living in Singapore.[5]
[3] Statement of Andrew James Feakes, par 2 - 6 (Exhibit 1).
[4] Statement of Andrew James Feakes, par 14 (Exhibit 1).
[5] Statement of Andrew James Feakes, par 12 (Exhibit 1), Video record of execution of search warrant (Exhibit 4).
Other items were found during the course of the search. They included a small quantity of methylamphetamine, a small quantity of cannabis, smoking implements, scales and a quantity of ammunition.[6] The appellant was not the holder of a firearms licence or a permit entitling him to possess the ammunition. Also seized was a quantity of 3,832 blotter tabs of various shapes, sizes and colours and 8.2 g of white powder.[7]
[6] Statement of Andrew James Feakes, par 7 (Exhibit 1).
[7] Statement of Andrew James Feakes, par 8 (Exhibit 1); Statement of Jarrad Brian Kakoschke, par 24 (Exhibit 2).
Following the search, police conducted enquiries with the Australian Transaction Reports and Analysis Centre (AUSTRAC) regarding transactions relating to the appellant, Mr Hwong and Mr Hwong's business, the Manjimup Dental Clinic. These enquiries established that there had been one previous transaction on 25 May 2015 whereby the appellant had deposited $50,000 into Mr Hwong's account in the name of his dental clinic.[8]
[8] Statement of Andrew James Feakes, par 18 - 19 (Exhibit 1); Exhibit 3.
Grounds of appeal
There are two grounds of appeal. The first ground was contained in the appeal notice and is as follows:
1.His Honour erred in concluding the money was reasonably suspected of being stolen against the weight of the evidence.
What was described as 'additional appeal ground' was included in the appellant's written submissions. It is as follows:
2.His Honour failed to appropriately direct his mind to the question of whether the prosecution had established beyond reasonable doubt that the thing (money) was reasonably suspected of being unlawfully obtained and thereby denied the Appellant a fair hearing.
There was also an application to add a third ground based on additional evidence from Mr Hwong. This application was abandoned prior to the hearing of the appeal.
As ground 1 alleges an insufficiency in the evidence, it is convenient to summarise the evidence at trial before turning to the specific error alleged by ground 2.
The prosecution evidence
The facts alleged by the prosecution were not in dispute. It was agreed that the prosecution did not need to call witnesses, and witness statements and other documents were tendered by consent. The prosecution exhibits consisted of a statement by Detective Constable Andrew Feakes, a statement by an Australian Border Force officer, Jarrod Kakoschke, the AUSTRAC report in respect of the deposit of $50,000, and a video recording of the execution of the search warrant.[9]
[9] Magistrates court transcript, 10 July 2017, 4 - 7.
Defence evidence
The appellant gave evidence in his defence. He said that Mr Hwong was a close friend who he had known since they were at school together. He agreed that he had banked $50,000 into Mr Hwong's business account on 25 May 2015. He said that he did this as a favour to Mr Hwong who had just discharged himself from a psychiatric hospital and wanted to go to Singapore. He said that he deposited the money at a bank in Riverton the day after Mr Hwong left the country.[10]
[10] Magistrates court transcript, 10 July 2017, 9 - 12.
The appellant said that roughly a month or two later he saw Mr Hwong again in Australia. He said that Mr Hwong gave him a further quantity of cash and asked him to deposit the money. He said that the amount of cash on this occasion was $18,000, and that he deposited approximately $7,000 at a bank in Booragoon on a date that he could not recall.[11] He said that Mr Hwong asked him to deposit the first part of the money because he had to meet a loan payment. The $10,400 found by the police was the balance of this money.[12]
[11] Magistrates court transcript, 10 July 2017, 9 - 11.
[12] Magistrates court transcript, 10 July 2017, 17.
The appellant said that the small quantities of methylamphetamine and cannabis found by the police were for his personal use, and he denied that he had ever sold drugs. He did not provide any explanation for the ammunition. In regard to the Xanax the appellant said that he had purchased this 'online', that he suffered from anxiety and ADHD, that he was self‑medicating using this drug and that it was all for his personal use.[13]
[13] Magistrates court transcript, 10 July 2017, 14 - 15.
The appellant said that following the police search, he had spoken to Mr Hwong on the telephone. He told Mr Hwong that the $10,400 had been confiscated. He said that Mr Hwong apologised to him for putting him in this situation. He said that he later saw Mr Hwong in Australia and that Mr Hwong asked him what he should do. The appellant told him that he did not know because he had not received any information from the police and did not know at that stage that he had been charged. He said that $10,000 was a 'drop in the bucket' to Mr Hwong.[14] Since that time, efforts by the appellant to contact Mr Hwong had been unsuccessful.[15] He agreed with a question put to him by his counsel that Mr Hwong had 'wondered [sic] off and just abandoned his legitimate ten thousand dollars'.[16]
[14] Magistrates court transcript, 10 July 2017, 16.
[15] Magistrates court transcript, 10 July 2017, 26.
[16] Magistrates court transcript, 10 July 2017, 17.
The appellant said that he believed that Mr Hwong was in a good financial position. This was based on the car that Mr Hwong drove and because the appellant had worked for him for about a month when Mr Hwong first set up his dental practice. At this time, the appellant had done some banking for the business. He said that the majority of customers paid in cash, that the amount banked per week varied but on some occasions it amounted to $10,000 to $20,000 in cash and cheques.[17]
[17] Magistrates court transcript, 10 July 2017, 12 - 13.
In cross‑examination, the appellant was asked why it was that he did not ask Mr Hwong any questions about the cash. He said that it was 'weird but not that weird' and that he did not want to question his friend because he believed he was on the 'border of suicidal'. He said that he believed the money was derived from Mr Hwong's dental business, but he did not ask any questions and he just assumed that it was an emergency because Mr Hwong was flying out the next day to Singapore. He did not ask Mr Hwong why he could not deposit the money himself.[18]
[18] Magistrates court transcript, 10 July 2017, 19, 21.
The appellant said in cross‑examination that he could not recall how the cash was packaged when it was given to him. He said that he placed it into the beef jerky bag. He said that he was a partner in a business making beef jerky at that time. He placed the money in the bag because it would be 'less conspicuous if someone wants to steal something'.[19]
[19] Magistrates court transcript, 10 July 2017, 22 - 24.
When questioned about the Xanax, the appellant maintained that it was all for his own consumption. He said that he had a high tolerance for Xanax and could consume 'quite a fair bit'. However, he also said that he was trying to cut down by reducing his intake over time.[20]
[20] Magistrates court transcript, 10 July 2017, 24.
The defence also called David Chong. Mr Chong said that he was a friend of the appellant and of Mr Hwong. He said that Mr Hwong had also asked him to make a cash deposit into his business account. He could not remember the exact amount, but thought that it was around $20,000 and that this had occurred in 2015, though he could not recall the date. He did not ask Mr Hwong why he did not deposit the money himself or get his family to do it. He said that there was one or two other occasions of a similar nature.[21]
[21] Magistrates court transcript, 10 July 2017, 26 - 28.
In cross‑examination, Mr Chong was asked whether he had thought to ask why this needed to be done. He said that Mr Hwong was 'just asking for a favour' and that it was 'not really my concern'. He said he was not sure of the source of the money, only that it was being deposited into the dentistry business account.[22]
[22] Magistrates court transcript, 10 July 2017, 30.
Magistrate's reasons
The hearing was short and the magistrate gave oral reasons immediately after the conclusion of the evidence. It would not be expected in these circumstances that the reasons would be finely crafted. However, no issue is taken with the form or adequacy of the reasons, except to the extent asserted by ground 2.
His Honour commenced his reasons by stating that the prosecution had to prove each and every element of the offence beyond reasonable doubt. In particular, in regard to the element of whether the thing possessed was reasonably suspected to be stolen or otherwise unlawfully obtained, his Honour said:[23]
So is that money, which of course is a thing capable of being stolen, reasonably suspected to be stolen or unlawfully obtained? Yes. Simple answer: yes. One has to look at the evidence, draw inferences. The prosecution don't have to prove that it was unlawfully obtained. They have to prove that there was a reasonable suspicion.
[23] Magistrates court transcript, 10 July 2017, 37.
His Honour then referred to the grounds for suspecting that the cash was stolen or unlawfully obtained. He noted that Mr Hwong, about whom little was known, was said to have given the appellant significant amounts of cash to deposit in a bank account for him. In this case, the cash consisted of $50 and $100 notes. He noted that the cash was found in the home of the appellant in circumstances where he had been importing prescription drugs unlawfully. He said that the explanation provided by the appellant was considered strange by the police and he shared that view.[24] His Honour said:[25]
There's a clear basis for reasonable suspicion that the money was unlawfully obtained under all the circumstances, including the explanation which at the time would have sounded suspicious and/or fatuous when it was given to them, and that's the way they have considered it.
[24] Magistrates court transcript, 10 July 2017, 38 - 39.
[25] Magistrates court transcript, 10 July 2017, 39.
His Honour noted that neither the appellant nor Mr Chong had asked any questions regarding why it was necessary for them to bank these large quantities of cash. His Honour expressed scepticism that there was anything normal about this behaviour. He expressed negative views regarding the credibility of both the appellant and Mr Chong.[26]
[26] Magistrates court transcript, 10 July 2017, 39 - 40.
His Honour then went on to consider whether the defence in s 417(2) had been established. That section provides that it is a defence to a charge under subsection (1) for the accused to prove that at the time that he was in possession of the thing he had no reasonable grounds for suspecting that it was stolen or unlawfully obtained. His Honour noted that the prosecution had established that there were grounds for reasonable suspicion beyond reasonable doubt, and that the appellant had asked no questions of Mr Hwong, though he had opportunity to do so. His Honour concluded that, in these circumstances, it was 'fatuous, specious and, quite frankly, ridiculous' to suggest that the appellant had no reasonable grounds to suspect that the cash was stolen or unlawfully obtained.[27] He concluded that the appellant:[28]
failed to prove comprehensively, on the balance of probabilities, that he had no reasonable grounds to suspect that the thing was unlawfully obtained. Indeed, all the evidence suggest the contrary in my view. That's the inference I would draw.
[27] Magistrates court transcript, 10 July 2017, 41.
[28] Magistrates court transcript, 10 July 2017, 41 - 42.
Ground 2 - the merits
It is convenient to deal first with ground 2 as it alleges an express error on the part of a magistrate. In essence, ground 2 asserts that the magistrate failed to address whether the prosecution had established beyond reasonable doubt that the cash was reasonably suspected of being unlawfully obtained.
The appellant submits that the magistrate prematurely came to a conclusion that the element of reasonable suspicion had been proven without taking into account all of the evidence. It is suggested that his Honour did not explain why the third element had been proven, and that he moved on to the defence without considering that issue.
Section 417 of the Criminal Code provides as follows:
(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 a crime and is liable, if no other punishment is provided under section 417A, to imprisonment for 7 years.
Summary conviction penalty: imprisonment for 2 years and a fine of $24,000.
(2)It is a defence to a charge 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.
In order to establish an offence under s 417, the prosecution is required to prove the following elements beyond reasonable doubt:
1.That the accused was in possession of a thing.
2.That the thing was capable of being stolen.
3.That the thing was reasonably suspected to be stolen or otherwise unlawfully obtained.
The onus of proof of the elements is on the prosecution. However, the prosecution is not required to negative the defence in s 417(2). If an accused person relies upon s 417(2), he or she bears an evidentiary and legal onus to prove on the balance of probabilities that at the time he or she was in possession of the property he or she had no reasonable grounds for suspecting that the thing was stolen or unlawfully obtained.[29]
[29] Whittle v Brown [2011] WASC 143 [63].
An accused person will be guilty of the offence if the prosecution proves the three elements beyond reasonable doubt and, where raised by the defence, the accused does not prove on the balance of probabilities that he or she had no reasonable grounds for suspecting that the property in question was stolen or unlawfully obtained.[30]
[30] Whittle [63].
In the present case, the first and second elements of the offence were not in dispute. The central issues were whether the third element had been established and, if so, whether the defence had been made out.
The element of reasonable suspicion requires the trier of fact to reach an objective conclusion from all of the evidence in the trial as to whether or not the property in question might reasonably be suspected of being stolen or unlawfully obtained.[31] A reasonable suspicion that a thing has been stolen or unlawfully obtained will necessarily fall short of certainty. The section does not require any certainty greater than suspicion to be established.[32]
[31] Ryan v Dimitrovski (1996) 16 WAR 457, 478 (Steytler P; Malcolm CJ agreeing); McLennan v Campbell [2003] WASCA 145 [27] - [28].
[32] Hoskins v Ramsden [No 2] [2009] WASCA 90; (2009) 196 A Crim R 77 [29] (Wheeler JA; Pullin & Buss JJA agreeing).
The words 'reasonable suspicion' are not defined in s 417. A similar phrase is also used in the context of search warrants. In George v Rockett, the High Court held that in the context of a search warrant a suspicion is a state of conjecture or surmise where proof is lacking.[33] It is more than an idle wondering; it is a positive feeling of actual apprehension or mistrust amounting to a slight opinion but without sufficient evidence.[34] The addition of reasonableness means that a suspicion based on reasonable grounds requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[35]
[33] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 115.
[34] George v Rockett, quoting from Kitto J in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1996) 115 CLR 266, 303.
[35] See also Caratti v Potts [2015] WASC 86 [45] - [46].
In the present case, the magistrate was required to consider whether he was satisfied beyond reasonable doubt that the cash could be reasonably suspected of having been stolen or unlawfully obtained in all of the circumstances, including the appellant's explanation that he had been given the money by Mr Hwong. In this regard, the magistrate rejected the appellant's explanation as being wholly unsatisfactory. He was well‑placed to make an assessment of the appellant's credibility.
On a fair reading of the magistrate's reasons, he clearly understood that the onus was on the prosecution to establish the third element beyond reasonable doubt. Whilst he did not detail all of the evidence as to the circumstances in which the cash was found, it is clear that he was satisfied that this element had been proven. In doing so, he took into account the explanation that was given by the appellant. He then went on to consider whether the defence had been made out.
The appellant has not demonstrated that the magistrate failed to direct his mind to the question of whether the prosecution had proven the third element of the offence beyond reasonable doubt. Indeed, it is plain that the magistrate did consider this element and was satisfied that it was proven to the requisite standard. There is no merit in this ground of appeal and leave in respect of it is refused.
Ground 1 - the merits
Ground 1 effectively asserts that the verdict was unreasonable or unsupported by the evidence. In essence, it is asserted that the magistrate could not, on the basis of the evidence, have been satisfied beyond reasonable doubt that the cash which the appellant possessed was reasonably suspected to have been unlawfully obtained and that the appellant had failed to satisfy, on the balance of probabilities, that he had reasonable grounds not to suspect that the money was stolen or unlawfully obtained.
The principles applicable to whether a verdict of a jury is unreasonable or cannot be supported by the evidence apply by analogy to a trial before a magistrate.[36] Where a finding of guilt is challenged on this basis, the question for the appeal court is whether it was open to the trier of fact to be satisfied of guilt beyond reasonable doubt. In other words, the question is whether the trier of fact must, as distinct from might, have entertained doubt about the appellant's guilt.[37] It is not sufficient to show that there was evidence which, if accepted, would have precluded satisfaction of guilt beyond reasonable doubt. This is because it may well have been open to reject that evidence and accept that which led to a conclusion of guilt.[38]
[36] The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44] (Buss JA, with whom McLure P & Mazza J agreed).
[37] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]; M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 ‑ 495 (Mason CJ, Deane, Dawson & Toohey JJ).
[38] Evans v Kelly [2012] WASC 148 [5].
A ground of appeal of this nature requires the appellate court to examine the whole of the evidence to determine its sufficiency and whether or not it gives rise to any reasonable doubt. The task is not one of determining what the magistrate did. Rather, the task for the appellate court is to make its own assessment of the evidence.[39]
[39] Evans [8]; M, 493; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [11] - [14].
It is important not to disregard or discount that the trial magistrate is the person entrusted with the primary responsible for determining guilt or innocence. The trial magistrate has advantages that the appellate court does not have in assessing the credibility of witnesses.[40]
[40] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Nyoni v Murphy [2014] WASCA 70 [38], [43] (Mazza JA; McLure P & Buss JA agreeing).
In my view, it was plainly open for the magistrate to come to a conclusion that the charge had been proven beyond reasonable doubt. In this regard, the following uncontested facts are relevant:
1.That a large quantity of cash was found at the appellant's house inside a beef jerky bag.
2.That the cash consisted entirely of $100 and $50 notes.
3.That at the time the cash was found the appellant was also in possession of other illegal items, including drugs and ammunition. Further, he was also found in possession of a large number of blotter tabs of Xanax which had been illegally imported and for which he did not have a prescription.
4.That the appellant's explanation for the cash was that he had been given it to deposit by a friend, had deposited part of that sum and had asked few, if any, questions as to why it was necessary for him to do this.
5.That the appellant had previously deposited another large sum of cash in similar circumstances.
To the extent that the appellant and his friend, Mr Chong, had deposited sums of cash for Mr Hwong on previous occasions, this did not necessarily undermine any reasonable suspicion regarding the cash or support a defence. A view could be taken that those other deposits served only to enhance, rather than alleviate, a suspicion regarding the provenance of the cash.
Insofar as the defence in s 417(2) is concerned, the appellant's claim that he had a belief that the cash was generated by the dental business was found by the magistrate to lack any credibility. That was a finding that the magistrate, having observed the appellant's evidence, was well‑placed to make. There were a number of features of the appellant's evidence that made his explanation inherently incredible. The implication that the money was from cash paid by patients at the dental clinic, yet only consisted of $100 and $50, was dubious. There was also no adequate explanation of why it was necessary for Mr Hwong to have other people make these deposits on his behalf.
The magistrate's decision to convict the appellant was not unreasonable. That decision was supported by evidence that his Honour was entitled to accept. He was not precluded by the state of the evidence from being satisfied beyond reasonable doubt of the appellant's guilt, nor of finding that he was not satisfied on the balance of probabilities as to the defence in s 417(2). It cannot be reasonably said that the magistrate must necessarily have entertained a reasonable doubt about whether the prosecution had proved each of the elements of the offence. Having made an independent assessment of the sufficiency and quality of the evidence, I am satisfied that it was open to the magistrate to be satisfied beyond reasonable doubt as to the guilt of the appellant.
This ground of appeal is not reasonably arguable and leave in respect of it is refused.
Conclusion
Leave to appeal in respect of both grounds of appeal is refused. In consequence the appeal must be dismissed. The orders are as follows:
1.Leave to appeal refused.
2.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
ASSOCIATE TO THE HONOURABLE JUSTICE HALL6 NOVEMBER 2018
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