Morrow v Robinson; Ex Parte

[1993] QCA 107

[1993] QCA 107

COURT OF APPEAL

FITZGERALD P
PINCUS JA
DERRINGTON J

App. No 267 of 1992

LISA DIANE MORROW  Respondent

and

PETER ANTHONY ROBINSON
EX PARTE PETER ANTHONY ROBINSON                   Applicant

BRISBANE

23/02/93

ORDER

230293 T 3/PEH M/T COA93/421
THE PRESIDENT:  The Court proposes to allow the appeal and Mr Justice Pincus will give brief reasons on behalf of the Court.

PINCUS JA: This is an order to review in which the appellant challenges a decision given by a Magistrate on 4 August 1992. On that day the appellant was convicted of having in his possession certain property suspected of having been stolen.  The defence was that the appellant had obtained the property in question from a man called Sims in November 1991 and that they were being held by the appellant at his flat for Sims as,
it appears, a bailee. Sims did not obtain the goods and on inquiring as to his whereabouts the appellant discovered that Sims was deceased.

The Magistrate appears to have been influenced in his view of the matter by the circumstance that the appellant, when questioned by the police, declined to give an explanation.  But, the principal point of the appeal is not that. It is that it is quite unclear for what reasons the appellant was convicted. The onus was upon him to show, on the balance of probabilities, that he came into possession of the goods lawfully, once the elements of the offence were proved, and the
Magistrate accepted expressly that he may have come into possession of them from Sims.

His Worship said, "Now, the explanation that is given by the
defendant is not questioned in any real way, and, of course,
as I said the standard of proof is on the balance of      probabilities. Now, I am satisfied that on the balance of      probabilities he may have come into possession of those goods
from the person, Sims. Now, he has had possession of them for some considerable time. How those goods came into the possession of Sims I have no explanation to me at all. Now,
those goods could have been dealt with in a number of ways by
the defendant. They could have been dealt with by handing them into the police as unclaimed property or ownership unknown. He could have attempted to tell them that, or he could have told the police that he had got them from Sims He did not do that."

One can understand the Magistrate raising these questions in his own mind, but they seem to be irrelevant to the problem he
had before him. He was not prepared to reject the evidence of
the appellant as to the way in which he obtained the goods, and he did not seem to be prepared to reject the evidence of
the innocence of that obtaining. In those circumstances one would have expected him to find that they were lawfully obtained, and to acquit.

Instead he convicted making, among others, these remarks, "It

is incumbent upon the person who is in possession of such goods and those goods appear to be on the evidence that, to me, that there is a strong suspicion that they are stolen to
give a satisfactory explanation. I am not satisfied with the   explanation given by the defendant as being on the balance of
probabilities that he came by them lawfully at all."

My impression is that what the Magistrate thought was that the
case was one in which a cloud of suspicion had not been lifted, but he did not precisely focus his mind on the problem
which was before him, namely whether he was prepared to accept the defendant's version on the balance of probabilities.  In my opinion the reasons given are therefore unsatisfactory, and I am of the view that the order to review should be made absolute.

THE PRESIDENT:  Yes . I agree .

DERRINGTON J: I agree.

THE PRESIDENT: The order to review is made absolute. The order made in the Magistrates Court is set aside and the conviction quashed and the charge dismissed. The respondent is to pay the costs of the appellant of these proceedings to be taxed and the Court is not minded to grant an indemnity certificate, Mr Byrne.

...

THE PRESIDENT: Yes. Very well. Order that the respondent pay the costs of the appellant for the hearing before the Magistrates Court to be agreed upon between the parties. In
the event the parties cannot agree, the matter is remitted to
the Magistrates Court for the fixing of those costs, and as
indicated, the respondent is to pay the appellant's taxed costs of the proceedings in this Court.

MR KEIM: Thank you, Your Honour.

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