Lleshi v Police - [2009] SASC 207

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LLESHI v POLICE
[2009] SASC 207
Judgment of The Honourable Justice Anderson
14 July 2009
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE NEW TRIAL ORDERED
Magistrates appeal - appeal against conviction - s 41(1) of the Summary Offences Act 1953 - unlawful possession of $43,350 cash reasonably suspected of being obtained by unlawful means - whether appellant proved defence on the balance of probabilities that possession was obtained lawfully - whether magistrate failed to give adequate reasons for findings - whether a miscarriage of justice.
Held: Unable to determine on evidence whether appellant made out defence - magistrate failed to consider evidence of witness supportive of defence - inadequate reasons - miscarriage of justice resulted - conviction quashed and remitted for hearing before a different magisgrate.
Summary Offences Act 1953 s 41(1), referred to.

LLESHI v POLICE
[2009] SASC 207
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant in this matter was charged with an offence contrary to s 41(1) of the Summary Offences Act 1953. The particulars alleged against him were that on 6 June 2008 at Warradale he had in his possession personal property, namely $43,350 in cash, which was reasonably suspected of having been stolen or obtained by unlawful means.
Mr Lleshi was convicted by a magistrate on 16 April 2009. He was represented in this appeal by Mr Stokes of counsel. Mr Stokes properly conceded that there could be no challenge to the fact that the police officer who apprehended the appellant formed a reasonable suspicion at the time he searched the appellant’s vehicle.
Background
The search revealed a white plastic bag containing $43,350 in cash. Associated with the discovery of the money in the plastic bag, there was a strong smell of cannabis coming from the vehicle. The appellant has a conviction for an offence of producing cannabis, of which the police officer was aware. In the back seat of the vehicle were large globes of the type used to grow cannabis, and there was a transformer in the boot of the vehicle, again capable of being used in the growing of cannabis.
The magistrate found that the police officer formed a reasonable suspicion and Mr Stokes, as I have indicated, does not challenge that finding.
Once a reasonable suspicion was made out by the prosecution, the appellant had to prove on the balance of probabilities, that he obtained possession of the money honestly. He gave an explanation which involved him going into the business of buying vehicles which had been damaged in crashes, doing them up and then selling them for a profit. He said he needed the cash to enable him to buy the vehicles. He said that he spoke to a Mr Panos late in May, and Mr Panos agreed to lend him $45,000 at an interest rate of 7% for three months.
Mr Panos was described by the magistrate as a credit provider. He said he organised for the money to be obtained from his company Accessible Funds Australia Pty Ltd. It was the company which entered into the formal agreement with the appellant. Mr Panos said that he was a referral business. The formal agreement was signed on 2 June 2008. The loan agreement is exhibit D1 in the proceedings. It was a standard agreement prepared by solicitors. It shows that the amount borrowed was $45,000 for business purposes at an interest rate of 7% per month for three months.
Mr Panos described in his evidence how the agreement was signed in a café at Croydon, in which Mr Panos had a financial interest. Mr Panos said that he had received the money in cash from another credit provider. He said the money was brought to him by that provider in a plastic bag. The money was then counted out in the café and given to the appellant in the plastic bag.
Mr Lleshi gave evidence as to why the money was still in the vehicle some two days after he borrowed it. He explained this by saying that he did not think it was safe to hide it in a house which he only had access to when his estranged wife was present in the house. He said he had not been able to leave it there. The appellant was living in his brother’s house at the time and said that it was safer to hide it at his house where he could gain access. He said that he had tried earlier to buy some vehicles but had not succeeded. He was on his way to try to buy vehicles when he was apprehended. That is why he had the money in the car.
Appellant submissions
It is in relation to Mr Panos’ evidence that Mr Stokes criticises the decision of the magistrate. The magistrate did not analyse Mr Panos’ evidence. In fact, other than the reference to the fact that Mr Panos was called to give evidence, there is no discussion of his evidence as such. There is no mention of the formal loan agreement.
The magistrate, apart from failing to deal with the evidence of Mr Panos, makes some rather elliptical findings. He said at [32]:
A startlingly large amount of money in cash was found in a plastic bag under the passenger seat of a vehicle that was reeking of cannabis and in which were found a transformer that could have been used in the growing of cannabis and globes that had been used in the course of growing of cannabis. Could it be that these baleful ghosts from the past had coincidentally reappeared at the very worst time for Mr Lleshi?
He went on to say at [33]:
It is my conclusion that the dark, cannabis infused, cloud of suspicion that hung over the money when it was discovered has not gone away. Could the possibility that Mr Lleshi obtained this money honestly be excluded as a reasonable possibility? Probably not, but “on the balance of probabilities I find that Mr Lleshi obtained the money honestly” is not something that I can bring myself to say. Mr Lleshi has not discharged his onus. I find the charge proved.
All of this must amount to the fact that the magistrate did not believe Mr Lleshi. However, the fact is that in considering whether Mr Lleshi has made out his defence on the balance of probabilities, the magistrate has not referred to the evidence of Mr Panos.
As Mr Stokes points out, Mr Panos was not seriously cross-examined as to the fact of the loan and the date of the transfer of the money. He was not tested on much of the evidence he gave. It may be that the magistrate did not think much of Mr Panos’ evidence but he does not say so. It may be that the magistrate effectively rejected Mr Panos’ evidence, but again he does not say so.
Respondent submissions
Ms Sutcliffe, who appeared for the respondent, submitted that if the reasons of the magistrate were inadequate, there is still the question of whether a miscarriage of justice has occurred. She further submitted that even if Mr Panos’ evidence was accepted, the court was still required to look at whether the circumstances of finding the money in the car were such that the appellant had failed to discharge the onus on the balance of probabilities.
Ms Sutcliffe submitted that the evidence shows that the circumstances deposed to by the appellant are not consistent with the money being obtained legitimately. She described the appellant’s evidence as “blatantly implausible”.
Whilst I have some sympathy for the argument put by Ms Sutcliffe, the problem is that, as suspicious as the circumstances in which the money was found may seem, the appellant has put forward a defence which, on the face of it, is supported by exhibit D1, the contemporaneity of the loan with the time of apprehension, and Mr Panos’ evidence.
Ms Sutcliffe submitted that the magistrate clearly rejected the appellant’s version of events out of hand. I agree that that appears so, but in rejecting the appellant’s account of events out of hand, the magistrate has not discussed the evidence of Mr Panos.
Conclusion
I am left with the difficulty that it would not be appropriate for me to attempt to assess the value of Mr Panos’ evidence without having heard or seen him. As I have indicated, his evidence, on the face of it, is supportive of Mr Lleshi’s defence. Allied with the fact that there is a document supportive of the loan, the magistrate erred in not dealing with Mr Panos’ evidence in some detail.
Mr Stokes argued initially that I should act on the evidence and acquit Mr Lleshi of the charge. Ms Sutcliffe opposed this on the basis that the only proper course, if that was the view I formed, was to refer the matter for re-trial before another magistrate. Mr Stokes later conceded that this was probably the correct result if he was successful in his argument.
When weighing up the defence on the balance of probabilities, the magistrate may or may not have taken account of some or all of Mr Panos’ evidence. I cannot judge for myself what impression Mr Panos’ evidence might have had if I had heard his evidence. The transcript alone is not sufficient to enable me to substitute a finding.
In the circumstances, I would order that the conviction be quashed and that the matter be remitted for hearing in the Magistrates Court before a different magistrate.