McKeever v McGee; ex parte

[1994] QCA 72

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

[1994] QCA 072

Brisbane

Before Mr Justice Davies

Mr Justice McPherson

Mr Justice Pincus

[McGee v. McKeever]

Appeal No. 25 of 1993

BETWEEN:

IAN CHRISTOPHER McGEE

Appellant

AND:

PETER FRANCIS McKEEVER

Respondent

Appeal No. 102 of 1993

BETWEEN:

IAN CHRISTOPHER McGEE

AND:

PETER FRANCIS McKEEVER

EX PARTE: IAN CHRISTOPHER McGEE

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 29/03/1994

The applicant appeals by way of order to review the decision of a Magistrate on 23 December 1992 convicting the applicant of two offences under s. 65 Crimes (Confiscation of Profits) Act 1989 (Qld) ("the Act"): receiving a quantity of Toyota Landcruiser component parts which were reasonably suspected of being tainted property; and possessing a Toyota Landcruiser Utility body that was reasonably suspected of being tainted property. The applicant was fined $5,000 in respect of both charges. In respect of the first charge, the Magistrate refused to make a pecuniary penalty order.

In respect of the second charge, he made a pecuniary penalty order of $8,000. In a separate proceeding, the applicant appeals against that pecuniary penalty order. This Court heard argument in both proceedings at the same time. It is convenient to deal first with the order to review.

The Order to Review

The applicant, who was charged together with another man, William Joseph Riley, owned and operated a wrecking yard for four-wheel drive vehicles in Brisbane. The prosecution's case against the two men depended upon the evidence of two police officers, Detectives Knapp and McKeever, who interviewed the applicant and Riley on several occasions between 13 April and 9 June 1992. Detectives Knapp and McKeever were concerned to determine whether the component parts of certain vehicles which had been repaired by the applicant had been lawfully obtained. Each interview was tape recorded with the consent of the defendant involved.

The transcripts of the interviews were tendered as exhibits at the trial. It was on the basis of these interviews and subsequent police inquiries that the detectives claimed to have formed a suspicion that the property in question was tainted.

The vehicle the subject of the first charge was a Toyota Landcruiser station wagon, registration number IAN-02 ("the wagon"). The prosecution alleged at the hearing that the body, mudguards, doors, windows, tailgate and bonnet of this vehicle were all tainted property, but accepted that the rest of the vehicle, including the motor and the chassis, was not. The vehicle the subject of the second charge was a Toyota four-wheel-drive utility ("the utility"). In respect of this vehicle, the prosecution alleged that the shell - that is, all of the vehicle except for the motor, chassis, tray, wheels and interior - was tainted.

The evidence with respect to the first charge can be summarised as follows. When the police first interviewed him on 13 April 1992, the applicant said that he had purchased the wagon as a wreck from the Northern Territory and repaired it. He later told police he had obtained the parts to fix the vehicle from Riley, and on a later occasion still, said that, on reflection, he recalled having obtained the replacement body for the wagon from Riley and the remainder of the replacement parts (apparently the bonnet, the two front doors and the tailgate) from a man called John Alexander. The applicant claimed that Alexander was a stranger who had contacted him offering to sell him certain spare parts and said that although he was, at first, somewhat suspicious of him, Alexander's production of what was apparently a driver's licence as identification and the fact that the price being asked for the parts ($2000) was not unusually low, had satisfied him that the parts were not stolen. During the course of their investigations, the applicant produced to police what he claimed was a photocopy of a receipt signed by Alexander acknowledging payment for the parts. However, the applicant was unable to locate Alexander or assist police in doing so.

The original body of the wagon was found unrepaired in the applicant's back yard. At the hearing, the applicant said that it was agreed that he would supply Riley with one of the applicant's own vehicles, that Riley would repair the vehicle, and that they would sell it and split the profits, with Riley receiving the price of the body out of the sale proceeds. He then produced what he claimed was documentary evidence of this arrangement. However, in cross- examination, the applicant was unable to give a satisfactory account of how and when he received this documentary evidence and, in particular, why he had not produced this evidence prior to the hearing.

Riley originally told police that he had purchased the replacement body for the wagon from EKW Wreckers in Melbourne. However, he was unable to produce any documentation to support this. He told police that he paid for the body by means of a telegraphic transfer to the Melbourne GPO. However, police enquiries revealed that no such transaction had been recorded. Riley later altered his account to say that he had purchased the body from an unknown man who had telephoned him from Victoria. Riley said that he assumed the man was either connected with or had obtained the part from EKW Wreckers. This man could not be located. At the hearing, Mr Paul Mallon from EKW Wreckers gave evidence that the only such body that EKW Wreckers had ever sold was purchased by a Mr John Philpot who lived at Wynnum. Mr Philpot gave evidence confirming this and establishing that the body he purchased was not connected with the present case.

As regards the second charge, the applicant had already sold the utility to a third party, Mr Sharry, when the police became involved. The applicant told the police that he purchased this vehicle as a wreck in the Northern Territory.

Police inquiries confirmed this. The applicant indicated that he had repaired the vehicle using parts purchased from all over Australia. In particular, he said that he had replaced the roof, right-hand door and right-hand mudguard of the vehicle. He claimed to have paid cash for the roof to a Toyota dealer in Mount Isa and said that he had obtained the other parts either from wreckers in the Northern Territory or from a four-wheel-drive centre at Ipswich. However, the applicant said that he could not honestly remember whether he had repaired the original body shell (tub) of the vehicle or whether he had purchased a replacement tub.

Police put to the applicant claims by another man, Mr Farrell, that the applicant had given him the original tub of the utility. The applicant indicated that this was possible, but remained unsure. When questioned as to where such a replacement tub may have come from, the applicant said it was possibly from Darwin or Alice Springs.

Police inquiries confirmed that Farrell had the original tub of the utility. That body had been extensively damaged in the accident, and Detective McKeever said in evidence that he considered it to be very unlikely that the applicant could have failed to remember whether or not he had repaired that part.

At the hearing, Mr Farrell said that he understood that the utility had been extensively damaged in the accident and that the applicant transferred and replaced the panels and transplanted the whole body shell. He said that the applicant gave him the original tub and transplanted a tub he had had sitting in his workshop for some time.

The applicant said in evidence at the hearing that he was now sure that he had purchased the replacement tub from a man known as "Harpo" (Mr Bill Rankin) who part-owned Tablelands Smash Repairs in the Northern Territory. He claimed to have found a receipt for that part and said that when the police had earlier questioned him, he had been unable to recall these facts. Mr Rankin was not available to be called as a witness and, despite their best efforts, the applicant's solicitors were unable to obtain a statement from him. The applicant also said that he had purchased doors from four-wheel-drive wreckers at Strathpine and a man in the Northern Territory, and he produced receipts, cheque butts and other documents which he claimed related to the parts he had used in repairing the utility.

The prosecution called as witnesses a number of people who conducted the businesses from which the applicant claimed to have purchased the parts used in repairing the utility. Although some of these witnesses said that they had had business dealings with the applicant, none had any records of or could personally recall having sold the applicant the items in question. One of these witnesses, a Mr Scottorn of 4 x 4 Parts Australia at Strathpine, said in a statement to police (which he later admitted to be true in oral evidence) that the applicant had telephoned him on 13 April 1992 asking him for a receipt for a complete front axle assembly.

Mr Scottorn said that he told the applicant that he would not give him a receipt because he knew he had not sold him such a part.

In their evidence, Detectives Knapp and McKeever explained that, on the basis of the inconsistent accounts given by the applicant and Riley and the fact that these accounts were not borne out by subsequent police inquiries, they formed a suspicion that the parts the subject of the two charges had been either stolen or received as stolen property by the applicant and Riley. Both detectives acknowledged that they did not have sufficient evidence upon which to charge the applicant or Riley with either stealing or receiving.

However, they considered that they did have sufficient

evidence to lay charges under s. 65 of the Act.

Section 65 relevantly provides:

"(1) A person who receives, possesses, conceals, disposes of or brings into Queensland any money, or other property, that may reasonably be suspected of being tainted property commits an offence against this Act.

Penalty: (a) if the person is a natural

person - a fine of 100

penalty units or imprisonment for 2

years, or both;

...

(2) Where a person is charged with an offence against this section, it is a defence to the charge if the person satisfies the court that he had no reasonable grounds for suspecting that the property referred to in the charge was derived or realized, directly or indirectly, from some form of unlawful activity."

"Tainted property" is relevantly defined as "property derived or realized, directly or indirectly, by any person, as a result of the commission of" a serious offence or an interstate serious offence. "Serious offence" is defined to mean an indictable offence and any offence "that is prescribed by the regulations to be within this definition or is of a class of offence that is so prescribed".

Regulation 8(f) of the Crimes (Confiscation of Profits) Regulations 1990 provides that "any offence against the Act for which the penalty may include imprisonment" is a serious offence.

On the basis of the evidence, which he reviewed in considerable detail, the learned Magistrate was satisfied that Detectives Knapp and McKeever held a suspicion at the time of the interviews, at the time the charges were proferred and at the time of the trial, that the applicant was in possession of or had disposed of or received tainted property. He held that this suspicion was a reasonable one and that the prosecution had proved all elements of the offences beyond reasonable doubt. The learned Magistrate formed the view that the applicant's "demeanour in the witness-box was not that of an innocent person"; the applicant had been evasive when questioned and had adopted a vague and argumentative attitude. He further held that the documents which the applicant had produced in relation to the first charge, claiming them to be receipts and other evidence of relevant transactions, were recent fabrications.

As his Worship explained, the applicant had been given more than ample opportunity to produce these documents prior to trial, but had failed to do so. The Magistrate disbelieved the applicant's evidence regarding Alexander. In relation to the second charge, he held that the receipts and other documents produced did not relate to the replacement parts used in repairing the utility. In addition, he expressed the view that the applicant (as well as the police) had reasonable grounds for suspecting the property the subject of the first and second charges to be tainted property.

In the applicant's written outline of argument, leave was sought to amend ground (i)(d) of the Order Nisi to Review. However, in view of the conclusion which we have reached, it is unnecessary for us to consider whether leave should be granted.

Before this Court, the applicant's primary submission was that where a person is charged under s. 65, the prosecution must either establish as a fact the commission of the serious offence (from which the allegedly tainted property is reasonably suspected of being derived or realised) or, at the very least, specify either a particular serious offence which has occurred or an identifiable serious offence which is reasonably suspected of having occurred. Mr Nolan for the applicant argued that this construction of s. 65 was supported by what he submitted was the purpose of the Act:

to provide for the confiscation of the profits of particular crimes. He submitted that because the prosecution had failed to establish any of these things in the present case, neither conviction could be supported, irrespective of the strength of the evidence upon which the police formed their suspicions.

In our opinion there is nothing in the legislation which supports any of the above constructions argued for by the applicant. The Act says that it is sufficient that the property in question may reasonably be suspected of having been derived or realized from a serious offence. There is no requirement that the prosecution specify, much less prove, a particular serious offence. Further, a requirement that the prosecution provide particulars of a serious offence suspected of having occurred would present courts with the difficult task of determining the appropriate degree of detail with which such an offence should be particularised. Indeed, before this Court, Mr Nolan conceded that it would not be necessary for the prosecution to name a particular complainant. However, he submitted that it would be necessary in a case such as the present to provide details of the nature of the suspected offence (e.g. stealing), the make and registration number of the vehicle involved and the date of the suspected offence. In our opinion such a construction of s. 65 is not open.

Section 65 is in similar terms to s. 25 Vagrants, Gaming, and Other Offences Act 1931 (Qld) and s. 527C Crimes Act 1900 (NSW), which two provisions are materially identical. The meaning of these and other analogous provisions has been considered by courts on many occasions, and we agree with the view, which we believe emerges from these cases, that such provisions are intended to operate in circumstances where there is insufficient evidence to establish the commission of the relevant serious offence. To require the prosecution pursuant to s. 65 to prove the commission of the serious offence or to particularise the serious offence with some degree of specificity would in our opinion defeat the purpose of the section. In this respect we agree with the following comments of Abadee J. (with whom Mahoney J.A. generally agreed) in R v. Chan (1992) 28 N.S.W.L.R. 421 at 432-3 regarding s. 527C Crimes Act:

"There is no necessity for prosecution to point to
the commission of a specific or general offence.
Authority does not support such a proposition and
it indeed appears to be clearly against it.

It has long been the law that in respect of an offence such as s. 527C, or its predecessors, that it was not necessary to show that the things were stolen [or] ... that they were 'otherwise unlawfully obtained'. ...

Further, the section provides that if the state of affairs described exists then the offence is proved. The offence involves proof that the thing might reasonably be suspected of having been unlawfully obtained. The focus is on suspicion.

The offence is not concerned with offences of
stealing or receiving. ...

In my view there is no necessity to show that the goods were stolen or otherwise unlawfully obtained, nor, any need to show a crime with which the property has to be linked."

See also Hunt C.J. at C.L. at 426D. In our opinion, similar observations can be made concerning s. 65.

We are not persuaded by the applicant's argument that s. 65 is to be construed differently in this respect from s. 25 (and therefore s. 527C). Mr Nolan submitted that given the purpose of the Act (to confiscate the profits of particular crimes) and the more serious consequences flowing from a conviction under s. 65 than under s. 25, it was appropriate to construe s. 65 in the more restricted manner for which he argued. Section 65 is in our opinion unambiguous, and for this reason the relatively serious criminal consequences of a conviction provide no warrant for construing the section more favourably to a defendant. For these reasons, the applicant's primary submission must fail.

In the alternative, the applicant challenged the sufficiency of the evidence upon which the learned Magistrate convicted him of the second charge. Mr Nolan conceded, in our opinion quite properly, that the evidence relating to the first charge was capable of supporting the Magistrate's findings in respect of that charge. However, he submitted that the evidence relating to the second charge was much weaker. Mr Nolan emphasised that the evidence relevant to the second charge, unlike that relevant to the first charge, included no clear false denials by either the applicant or Riley and that, whereas the Magistrate found that the documents produced in relation to the first charge were fabricated, he found only that the documents produced in respect of the utility did not pertain to the body parts actually used in repairing that vehicle.

In order to determine whether the learned Magistrate erred, it is first necessary to identify the proper role of the court under s. 65(1). New South Wales authority regarding s. 527C Crimes Act and its predecessors indicates that it falls to the court at the time of trial to determine objectively, on the basis of the facts proved at that time, whether it is satisfied beyond reasonable doubt that the property may reasonably be suspected of being stolen or unlawfully obtained: Ex parte Patmoy; re Jack (1944) 44 S.R.(N.S.W.) 351 at 356; Cleary v. Hammond [1976] 1 N.S.W.L.R. 111; R. v. Abbrederis [1981] 1 N.S.W.L.R. 530 at 541; R. v. English (1989) 17 N.S.W.L.R. 149 at 153-4;

Anderson v. Judges of District Court of New South Wales

(1992) 27 N.S.W.L.R. 701 at 714-5; R. v. Chan (1992) 28 N.S.W.L.R. 421 at 424, 425, 435. As explained earlier, s. 65 closely resembles s. 527C in both wording and purpose, and we can see no reason why the approach adopted by the New South Wales cases should not be equally applicable under s. 65.

In Cleary v. Hammond (above) at p. 116 Lee J. said:

"The substantial effect of the interpretation so placed upon [s. 27 of the Police Offences Act 1901] was that the expression 'may be reasonably suspected of being stolen ...' ceased to be referable to the suspicion of any particular person and, became, in effect, a description of the goods which the Magistrate attached - or did not attach - objectively to them after hearing all the evidence in relation to them. His conclusion in any given case under that section was to be, not that the suspicion of the police officer was or was not reasonable at any particular time, but simply that the goods, on the evidence, were or were not goods which might be reasonably suspected of being stolen or unlawfully obtained."

We think this explanation is applicable to the meaning of the expression "... may reasonably be suspected ..." in s. 65 of the Act.

In the course of his reasons for decision, the Magistrate appeared to indicate on a number of occasions that he thought the relevant question was whether the suspicion actually held by the police at the time the applicant was charged was reasonably held at that time. However, in our opinion it is clear that the learned Magistrate was also personally satisfied beyond reasonable doubt that, on the evidence before him, the property the subject of both charges could reasonably be suspected of being tainted property. The Magistrate indicated he was influenced by the oral evidence given at the hearing and, in particular, by the applicant's demeanour in the witness box. His finding that the alleged documentary evidence produced at the hearing was either recently fabricated (first charge) or irrelevant (second charge) was also important to his decision. There can therefore be no doubt that the Magistrate properly considered whether all the evidence before him at the time of his decision supported a reasonable suspicion.

The applicant's evidence concerning the second charge contained several unsatisfactory features. First, the applicant said he was unable to remember whether he had replaced the tub of the utility or made what would necessarily have been extensive repairs to the original tub.

Secondly, despite being given ample opportunity to produce
documentary evidence of the alleged purchases of replacement
parts prior to the hearing, the applicant failed to do so.
Thirdly, when the applicant did purport to provide
documentary evidence of these purchases, he was contradicted
by the oral evidence of his alleged suppliers. Finally, the
applicant himself was a poor witness.
We did not understand Mr Nolan to contest the learned
Magistrate's finding that the documents produced as alleged
evidence of purchases of parts for the utility did not in
fact relate to that vehicle. This conclusion was plainly
supported by the evidence. In our opinion, in light of this
finding and the evidence as a whole, in particular the
unsatisfactory features referred to above, the Magistrate
was entitled to conclude that there were reasonable grounds
to suspect the property in question was tainted.

The Order Nisi must therefore be discharged with costs.

The Appeal Against the Pecuniary Penalty Order

The Notice of Appeal alleges that the magistrate erred in law in the manner in which he calculated the amount of the pecuniary penalty order. At the hearing, the parties agreed and the magistrate accepted that the appellant expended $10,000 in the legitimate purchase of the wrecked utility and a further $500 in obtaining delivery of that wreck;

that the cost of lawfully acquiring the tainted body parts would have been $4,500; and that the repaired utility was resold for $23,000. The learned Magistrate calculated the amount of the pecuniary penalty order by adding the $10,500 actually expended to the $4,500 which should have been expended and deducting the total of $15,000 from the $23,000 sale proceeds, obtaining a benefit to the appellant of $8,000.

The appellant's primary submission is that the benefit obtained was $4,500: the further sum which he would have had to expend if the parts had been purchased lawfully. Alternatively, the appellant submits that the benefit should be calculated as that proportion of $8,000 which $4,500 bears to $10,500. In his written submissions, Mr Nolan also submitted that where, as here, a conviction has been recorded, the court should exercise its discretion against making any pecuniary penalty or forfeiture order where the evidence has not established what serious offence was actually committed.

This last argument was not pressed by Mr Nolan in his oral submissions before this Court. Clearly, for the purposes of Part II of the Act, a serious offence has actually been committed in the present case: that is the s. 65 offence which, because it carries with it the possibility of imprisonment as a punishment, falls within the extended definition of "serious offence" created by reg. 8(f) of the Regulations.

The respondent's submissions as to the value of the benefit were three-fold. First, it argued that a "but for" test should be applied. That is, because the vehicle could not have been sold without the tainted parts, the benefit derived from the possession of those parts was the full $23,000. Alternatively, the respondent argued, relying principally upon paragraphs 14(2)(b) and (d) and 14(4)(a) of the Act, that the benefit was the change in value of the appellant's property flowing from the use of the tainted property, that is, the difference between $23,000 and $10,500 ($12,500). Finally, the respondent submitted that at the very least the advantage to the appellant was the proportional part of the total value of the finished vehicle as reflected by the value of the tainted property.

Section 13(1) of the Act authorises the Court to make a pecuniary penalty order in an amount equal to the value of the benefits derived from the commission of the offence.

"Benefit" is defined in s. 3(1) to include an "advantage".
Section 14 states guidelines for the assessment of the value
of benefits. That section relevantly provides:

"(2) For the purposes of an application for a pecuniary penalty order ... the value of the benefits derived by the defendant from the commission of an offence ... shall be assessed by the court having regard to the evidence before it concerning all or any of the following: -

(a) the money, or the value of the property other than money, that came into the possession or under the control of -

(i) the defendant; ...

by reason of the commission of the

offence ...

(b) the value of any other benefit

provided to -

(i) the defendant; ...

by reason of the commission of the

offence ...

(d) the value of the defendant's
property -

(i) where the application relates to a single offence - before and after the commission of the offence; ...

(4) Where an application is made for a pecuniary penalty order against a person in respect of a single serious offence, the following provisions have effect:-

(a) if, at the hearing of the application, evidence is given that the value of the person's property after the commission of the offence exceeded the value of the person's property before the commission of the offence, then, for the purposes of section 13(1), the court shall, subject to paragraphs (b) and (c) ..., treat the value of the benefits derived by the person from the commission of the offence as being not less than the amount of the excess;

...

(c) if, after evidence of the kind referred to in paragraph (a) is given, the person satisfies the court that a part of the excess was due to causes unrelated to the commission of the offence, paragraph (a) applies to the excess as if it were reduced by the amount of that part.

...

(6) Where an application is made for a pecuniary penalty order against a person in relation to a serious offence ... -

(a) all property of the person at the time

the application is made;

and

(b) all property of the person at any time -
(i) within the period between the day
the offence ... was committed and the day
on which the application is made;

or

(ii) within the period of 5 years immediately before the day on which the application is made,

whichever is the shorter,

shall be presumed, unless the contrary is proved, to be property that came into the possession or under the control of the person by reason of the commission of the offence ...

...

(8) In calculating, for the purposes of an application for a pecuniary penalty order, the value of benefits derived by a person from the commission of an offence or offences, any expenses or outgoings of the person in connexion with the commission of the offence or offences shall be disregarded."

Mr Byrne, who appeared before us for the respondent, submitted that the final method of assessment which the respondent presented as an alternative is only appropriate where the value of the property suspected of being tainted is relatively small (a concept which he did not attempt to define) and that this was not such a case. He conceded that the first and second methods of calculation for which he argued would produce harsh results in cases where the value of the tainted property represents only a small fraction of the total value of the vehicle. However, he submitted that the aim of the Act was to discourage people from committing offences of this type and that the legislation recognised that to achieve this end it was appropriate to strip offenders of their gross profits, at least in cases where, as here, the tainted property is of considerable value. Mr Byrne submitted that support for this view could be found in sub-s. 14(8) and in Razzi v. Commissioner of Australian Federal Police (1990) 59 A.Crim.R. 142 at 151, 156 and Director of Public Prosecutions v. Nieves [1992] 1 V.R. 257 at 262, 264.

In our opinion, the legislation supports neither the first nor the second of the respondent's suggested approaches in this case. We would reject as a matter of principle the respondent's argument that the vehicle would not have been sold without the possession of the tainted parts and that the full sale proceeds are therefore attributable to the commission of the offence. This same argument would apply no matter how small the value of the tainted property and Mr Byrne was unable to suggest, nor have we been able to find, a principled basis upon which to allow exceptions to this general rule. The argument also ignores the fact that the utility could have been resold in an uncompleted condition.

Sub-section 14(8) does not apply to the sum of $10,500. The relevant offence in this case was the possession of the tainted body parts. The $10,500 expended in lawfully acquiring the original wreck is not an expense or outgoing "in connexion with the commission" of this offence and sub- s. 14(8) therefore does not require that this expenditure be disregarded in calculating the benefit which the appellant has derived.

Similarly, although authorities such as Razzi, Cornwell v. Commissioner of Australian Federal Police (1990) 94 A.L.R. 495 and Nieves indicate that courts have refused to limit "benefits" to commercial profits, those decisions do not extend to the present situation. In those cases, the property sold was itself an illegal substance and there was therefore no question, as there is in this case, of part of the sale price being attributable to lawfully acquired property. In addition, the applicability of these authorities in this State may still be a matter of some doubt: see R. v. Ashworth (1991) 56 A.Crim.R. 122 and the dissenting judgment of Pincus J. in Cornwell (supra).

Nor do we consider either of the respondent's first two suggested methods for calculating the benefit to be supported by ss. 14(2)(d), (4) or (6) of the Act. The prosecution did not adduce evidence at the hearing of the total value of the appellant's property before and after the commission of the s. 65 offence and for this reason paragraph 14(2)(d) and sub-s. 14(4) are of no assistance.

Further, the function of sub-s. 14(6) is merely to shift the onus of proof onto the appellant to establish that his property did not come into his possession by reason of the commission of the offence.

In calculating the benefit to the appellant, the Magistrate on the one hand gave the appellant the benefit of the $4,500 which he would otherwise have had to expend in obtaining the parts lawfully, but on the other hand treated the entire profit on sale ($8,000) as being attributable to the tainted property. In our opinion, the learned Magistrate erred in both respects.

In our view, the correct basis upon which to assess the benefit derived by the appellant from the commission of the s. 65 offence is to deduct from the $23,000 so much of that amount as the appellant has established to be attributable to property which was lawfully acquired. The benefit can therefore be determined by calculating that proportion of $23,000 which $4,500 (the total price the appellant would have had to pay to acquire the tainted parts lawfully) bears to the total price which the appellant would, had he purchased those parts lawfully, have paid for all the parts used in the repaired vehicle.

The parties agreed that the total purchase price of the wreck was $10,500. The evidence before the Magistrate indicated that, with the exception of the original tub of the vehicle (which ended up in the possession of Mr Farrell), all the constituent parts of the original wreck were retained in the vehicle as sold. Strictly speaking, for the purpose of calculating the appellant's benefit, any moneys the appellant received from Mr Farrell in respect of the original tub should be deducted from the figure representing the total price the appellant would have paid for all the parts used in the repaired vehicle. However, there was no evidence on this point at the hearing, the parties apparently being content to adopt the $10,500 figure as the cost price of the lawfully acquired parts used in the repaired utility. The respondent did not seek to resile from this position before this Court and we are also, therefore, prepared to accept $10,500 as the appropriate figure.

For these reasons, we would assess the benefit derived by the appellant as the result of committing the s. 65 offence at $6,900. This represents 30 per cent of $23,000, the same proportion as $4,500 bears to $15,000 (the sum of $4,500 and $10,500). Accordingly, we would allow the appeal with costs, set aside the pecuniary penalty order made below in respect of the second charge and substitute therefor an order that the appellant pay to the Crown a pecuniary penalty of $6,900.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

[McGee v. McKeever]

Appeal No. 25 of 1993

BETWEEN:

IAN CHRISTOPHER McGEE

Appellant

AND:

PETER FRANCIS McKEEVER

Respondent

Appeal No. 102 of 1993

BETWEEN:

IAN CHRISTOPHER McGEE

AND:

PETER FRANCIS McKEEVER

EX PARTE: IAN CHRISTOPHER McGEE

____________________________________________________________

_____

DAVIES J.A.
MCPHERSON J.A.
PINCUS J.A.

____________________________________________________________

_____

Judgment delivered 29/03/1994

REASONS FOR JUDGMENT - THE COURT
____________________________________________________________

_____

ORDER NISI TO REVIEW DISCHARGED WITH COSTS.

APPEAL ALLOWED WITH COSTS. SET ASIDE THE PECUNIARY PENALTY
ORDER MADE BELOW IN RESPECT OF THE SECOND CHARGE AND
SUBSTITUTE THEREFOR ORDER THAT THE APPELLANT PAY TO THE
CROWN A PECUNIARY PENALTY OF $6,900.
____________________________________________________________
_____

CATCHWORDS: CRIMINAL LAW - Applicant convicted of one offence of receiving, and one of possessing property reasonably suspected of being tainted property - not necessary for prosecution to establish commission of, or specify 'serious offence' reasonably suspected of having occurred - whether evidence sufficient to entitle magistrate to conclude that there were reasonable grounds to suspect property tainted.

Crimes (Confiscation of Profits) Act (Qld),

s. 65

CRIMINAL LAW - PECUNIARY PENALTY - amount
equal to value of benefit derived from
commission of offence - determination of
extent of benefit.
Crimes (Confiscation of Profits) Act (Qld),

ss. 13, 14

Counsel:	Mr P. Nolan for the Appellant Mr M. Byrne for the Respondent
Solicitors:	Steindl Robertson McPherson for the Appellant Director of Prosecutions for the Respondent
Date(s) of Hearing:	22 October 1993