Police v Hill
[2008] QMC 6
•17 January 2008
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Hill [2008] QMC 006
PARTIES:
POLICE
(prosecution)
v
NATHAN ALLAN ROYCE HILL
(defendant)
FILE NO/S:
MAG155437/07(3)
DIVISION:
Magistrates Court
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
17 January 2008
DELIVERED AT:
Brisbane
HEARING DATE:
8 January 2008
MAGISTRATE:
Previtera T
ORDER:
Defendant found guilty on both charges
CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES - PROPERTY OFFENCES – possession
Criminal Proceeds Confiscation Act 2002 (Qld), s 252(1)
Summary Offences Act 2005 (Qld), s 15(1)
COUNSEL:
T Clare (sen const) appeared for the prosecution
M Robinson (sol) appeared for the defendant
SOLICITORS:
Prosecution on their own behalf
ATSILS for the defendant
In this matter the defendant Nathan Allan Royce Hill is charged as follows;
1. That on the 4th of September, 2007 at Brisbane he possessed property, namely a pink Apple I-Pod and a silver mobile phone that may reasonably be suspected of being tainted property; pursuant to s 252(1) Criminal Proceeds Confiscation Act 2002 (Qld).
2. That on the 4th of September, 2007 at Brisbane he possessed implements, namely a screw-driver, a torch and a walkie-talkie that was (sic) to be used for burglary of a dwelling; pursuant to s 15(1) Summary Offences Act 2005 (Qld). (At the hearing, however, the prosecution proceeded on this second charge in relation to the screw-driver and torch only).
The prosecution called one witness, Constable Brett Day Richard, who produced photographs of each of the items the subject of the charges (Exhibit 1).
The defendant neither gave nor called evidence.
The following facts are not disputed:-
At approximately 10pm on the 4th of September, 2007 Plain Clothes Constables Brett Day Richard and Collins were travelling along Junction Road near the Eagle Junction train station when they observed the defendant and a female in the car park of the train station. Constable Richard formed a view that the defendant and the female were involved in an argument, with the defendant being the aggressor. The Constables approached the defendant and asked the defendant to empty his pockets. The defendant did so and was observed then to have a syringe in his right hand.
Constable Richard then detained the defendant for the purposes of a further search and gave the defendant the requisite warnings as required by the Police Powers and Responsibilities Act 2000. Constable Richard then directed the defendant to put the backpack which the defendant was carrying, down on the ground. The defendant did so and the police officer then searched the backpack and found the items the subject of the charges. (The defendant did not touch the backpack at any time after placing it on the ground).
Constable Richard then asked the defendant a number of questions in relation to the items found. The defendant was unable to supply details as to where he got the I-Pod, who had the I-Pod before him and the inscription written on the I-Pod (but scratched over). In relation to questions about the screw driver, the torch and the walkie talkie, the defendant said that the screw driver was used by him to fix his bicycle which was at a residence in Ipswich where he had been sleeping.
In relation to questions about the mobile phone, the defendant could not supply information as to where he had got the phone, where he had bought the phone or how much he had paid for the phone. Constable Richard gave evidence that he formed a suspicion that the pink Apple I-Pod and a silver mobile phone were tainted property within the meaning of s 252 Criminal Proceeds Confiscations Act 2002 (Qld) and that the other items were implements relevant to an offence under s 15(1) Summary Offences Act 2005 (Qld). Constable Richard then arrested the defendant.
MATTERS IN DISPUTE
[10]Whilst not forcefully argued, the defence submitted that the search of the defendant, in which the subject items were located, was undertaken in the absence of a prescribed circumstance allowing it, and was therefore unlawful.
[11]Section 29 Police Powers and Responsibilities Act 2000 provides;
“29. Searching persons without warrant
(1)A police officer who reasonably suspects any of the prescribed circumstances for searching a person without a warrant exist may, without a warrant, do any of the following—
(a)stop and detain a person;
(b)search the person and anything in the person’s possession for anything relevant to the circumstances for which the person is detained.
…….
[12]The relevant prescribed circumstances are set out in Section 30 Police Powers and Responsibilities Act 2000 which provides;
“30. Prescribed circumstances for searching persons without warrant
The prescribed circumstances for searching a person without a warrant are as follows—….
(c) the person has something that may have been used, is being used, is intended to be used, or is primarily designed for use, as an implement of housebreaking, for unlawfully using or stealing a vehicle, or for the administration of a dangerous drug;
………
[13]On the basis that the court is satisfied that the defendant was detained as a result of producing a syringe from one of his pockets; and that possession of such a thing is a prescribed circumstance for searching a person without a warrant; the court is satisfied that the search was lawful.
[14]The defence argument, which was forcefully submitted, was that the defendant could not be said, by reason of the factual circumstances, to have been in possession of the subject items. The defence relied on decisions of the Supreme Court of Victoria in Kitchen v. Cox[1] and DPP v. Miers[2] in support of their argument that because, at the time of the formation of the suspicion by Constable Richard, the property in the backpack was under police control and search, the defendant was unable to exercise a right of possession to the backpack and its contents and was not, therefore, in possession of the items.
[1]Per Hedigan J. 26th February 1996.
[2] Per Smith J. 12, 15, 26th September 1997.
[15]In Kitchen v. Cox[3], the Supreme Court of Victoria held that a magistrate was correct in determining that property the subject of a charge under section 26 of the Summary Offences Act 1966 (Victoria) was not in the actual[4] possession of the defendant at the time when it was suspected of being stolen because the defendant was under arrest, forcibly detained in a police vehicle and therefore not in actual possession of the property; notwithstanding that at the time of the formation of the suspicion by the police officer, the subject property was in the defendant’s motor vehicle situated next to the police vehicle in which the defendant had been detained.
[3] Supreme Court (Victoria) unreported per Hedigan J., 26th February 1996.
[4] My underlining
[16]The defence relied on comments by His Honour Judge Hedigan that “it has been long recognised by the courts that this section involves, if the criteria attracting its operation are established, some drastic interference of the rights of citizens…. It effectively reverses the burden of proof….” His Honour determined that there was no basis upon which it could be thought that if the defendant had possessed the goods in his motor vehicle…he was capable of exercising the power to resume control of the possession of the goods either exclusively or non-exclusively, at his election, will or favour. “It could not in those circumstances be said that he had either legal or actual physical possession of the goods in his vehicle….If Kitchen had not arrested Cox and placed him in the police vehicle before discovering the bottle of Glendfidich Whisky, but had proceeded with the inspection of the goods, formed the same opinion and had then arrested Cox on both the theft charges and the section 26 charges, the result might well have been different.”[5]
[5] Supreme Court (Victoria) unreported per Hedigan J., 26th February 1996 at page 330.
[17]In DPP v. Miers[6] the factual circumstances forming the basis of the court’s finding that the defendant was not in actual[7] possession of the subject property were as follows:- the defendant actually stood physically unrestrained near the police member who searched the boot of the defendant’s car (where the bag containing the property was found) which the defendant had himself, following arrest, voluntarily opened with keys; but where, having admitted ownership of the bag and knowledge of the contents of the bag, he then disclaimed ownership of the contents.
[6] VLR. 1997, page 408.
[7] My emphasis.
[18]The defence relied on the following comments by His Honour Smith J - “A person under arrest is under compulsion to stop, that person is no longer a free person”. ….. “he did not have the present manual custody, nor did he have an exclusive right or power to place his hands on it and thus achieve manual custody when he wished. While he had been cautioned and told that he did not have to do anything, he was directed by the police….while he had a choice not to respond to the directions of the police, he was under arrest and in the custody of ....and under police control at all material times….he was not a free agent at the material times. He was disconnected…he no longer had complete exclusive physical control…”[8]
[8] Per Smith J, at page 416.
[19]As already indicated, however, each of these decisions relied upon by the defence related to s 26 Summary Offences Act 1966 (Victoria), the wording of which is quite different to that under which the defendant before this court is charged. S 26 provides as follows:
“26. Unexplainable possession of personal property reasonably suspected to be stolen
1. Any person having in his actual[9] possession or conveying in any manner an personal property whatsoever reasonably suspected of being stolen or unlawfully obtained whether in or outside Victoria may be arrested either with or without warrant and brought before a bail justice or the Magistrates’ Court or may be summonsed to appear before the Magistrates’ Court.
[9] My emphasis.
If such person does not in the opinion of the court give a satisfactory account as to how he came by such property, he shall be guilty of an offence and the penalty is imprisonment for one year.”
[20]The charges the subject of this determination, however, do not depend for their proof upon satisfaction by this court of actual possession by the defendant of the subject items (as required by s 26 of the Victorian legislation).
[21]S 252 Criminal Proceeds Confiscation Act 2002 (QLD) provides;
“252. Possession etc. of property suspected of being tainted property
(1)A person must not receive, possess[10], dispose of, bring into Queensland, conceal or disguise property that may reasonably be suspected of being tainted property.
Maximum penalty—100 penalty units or 2 years imprisonment.[10]My emphasis.
(2)If a person is charged with an offence against this section, it is a defence to the charge if the person satisfies the court that the person had no reasonable grounds for suspecting that the property mentioned in the charge was either tainted property or derived from any form of unlawful activity.
………
[22]Section 15(1) Summary Offences Act 2005 (Qld) provides;
“15. Possession of implement in relation to particular offences
(1)A person must not possess[11] an implement that is being, or is to be, used—
(a) for burglary of a dwelling; or[11]My emphasis.
…….
(2)A person must not possess[12] an implement that has been used –
(a) for burglary of a dwelling; or[12]My emphasis.
……..
(3)For subsection (2), it is a defence for the person to prove that the person’s possession of the implement was not connected to any involvement by the person in the preparation of the offence or in any criminal responsibility in relation to the offence.
[23]The expression “Possess” is not defined in the Criminal Proceeds Confiscation Act 2002. In the Summary Offences Act 2005, the Schedule 2 dictionary provides that ‘possession” has the same meaning as in the Criminal Code. The definition of possession in the Criminal Code includes “having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.” [13]
[13] S.1 Criminal Code Act (Qld).
[24]The prosecution argument relied on this notion of constructive possession to argue that it is not necessary that the property be in the actual possession of the defendant or otherwise on his person, regardless of his custody/detention status. “The property does not have to be on the defendant’s person or be something that he owns. If someone else has it, the defendant must have the right or the de facto power to control it before he can be in possession of it. However it does not need to be in the defendant’s sole possession; there may be joint possession”.[14]
[14] Kenneth Bruce King v. Gerard Frantz Alain D’Hotman de Villiers 1997 QCA 419 at page 4 per Thomas. J.
[25]That there is a clear distinction between the expression “actual possession” (as used in s 26 Summary Offences Act (VIC)); and the expression “possess” was discussed in the Supreme Court of Victoria decision in Director of Public Prosecutions (on behalf of Oliver) v. Aaron James Sweeton,[15] a case directly on point in relation to the issues to be determined in this matter.
[15] (2004) VSC 427.
[26]In that case, police attended at the defendant’s address with a search warrant. Upon their arrival, they arrested the defendant and cautioned him. Thereafter the police found certain items of property inside the house and other items in a garage. The defendant unlocked the garage and the police formed suspicions in relation to each of the items.
[27]As a result of submissions to that court of the kind made by the defence in this case, in reliance on the earlier Victorian Supreme Court decisions of Kitchen v. Cox and DPP v. Miers, His Honour Justice Balmford, at some length, discussed the distinction between the “actual possession” requirement in s 26 Summary Offences Act and the “possess” requirement in s 123 Confiscation 1997 (VIC). The latter provides;
“123. Possession etc of property suspected of being proceeds of crime
(1)A person must not receive, possess, conceal, dispose of or bring into Victoria any money, or other property that may reasonably be suspected of being proceeds of crime.
…..
(2)It is a defence to a charge for an offence against subs (1) if the defendant satisfies the court that the defendant had reasonable grounds for not suspecting that the property referred to in the charge was proceeds of crime.”[28](S 123(1) uses the language found in s 252(1) Criminal Proceeds Confiscation Act 2002 (Qld). S 123(2) uses a double negative to convey the same principle as that in s 252(2) Criminal Proceeds Confiscation Act 2002 (Qld)).
[29]Commencing at page 3 of the decision, His Honour Balmford J stated:
[30]“The leading case on the nature of possession for the purposes of s 26 is Moors v Burke3., where Isaacs J, delivering the judgment of the High Court (the other Justices being Gavan Duffy and Rich JJ) said, after a lengthy consideration of the authorities4. [Paragraphing added]:
[31]That case5. stood unchallenged until 1912, when the Police Offences Act of that year was passed. It is titled “An Act to amend and consolidate the law relating to Police Offences.” And it does amend the enactment now under consideration by inserting the word “actual” three times before the word “possession,” and by inserting a provision as to summoning the accused as an alternative to arresting him.
[32]It is clear that Parliament inserted the word “actual” as a definite legislative declaration that the “possession” which is to bring about criminal consequences entailing possibly twelve months’ imprisonment is to be no mere legal conception based on real property distinction, but a plain fact personal to the accused.
[33]The very circumstance that the mere “opinion” of the justices that the defendant’s explanation is not “satisfactory” coupled with the legislative care to ensure “actuality” of possession as a condition precedent, indicates to us that the justices were not limited by any rigid technical connotation of “actual possession” but had to consider whether in the particular instance, in the circumstances, the man was in such physical control of the property as in ordinary life would, if unexplained, indicate that he was its possessor.
[34]“Having actual possession” means, in this enactment, simply having at the time, in actual fact and without the necessity of taking any further step, the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused, and whether he has that control by having the property in his present manual custody, or by having it where he alone has the exclusive right or power to place his hands on it, and so have manual custody when he wishes.
[35]The High Court there draws a clear distinction between the expression “actual possession”, the expression which Parliament has chosen to use in s 26, and “possession” unqualified, as a “mere legal conception based on real property distinction”, which is the word employed in s 123 as it appeared at the relevant time.
…….
[36]In DPP v Bodouloh6. Warren CJ said, dealing with s 123 and s 26:
[37]…The core elements of s 26(1) of the Summary Offences Act are, first, that a person has in his or her actual possession the property, or; secondly, a person convey in any manner the property and that; thirdly, the property be reasonably suspected of being stolen or unlawfully obtained. Subsection (3) of s 26 is a deeming provision to the effect that upon proof that the property was or had been in the actual possession or under the control of that person, the property was deemed to be in the actual possession of the person.
…….
[38]The core elements of s 123(1) of the Confiscation Act are that a person receive, possess, conceal, dispose of or bring [into] Victoria the property. Thus, the expressions “actual possession” and “conveying in any manner” have been substituted in the Confiscation Act by the verbs “received”, “possess”, “conceal”, “dispose of” or “bring into Victoria”. Section 123(1) is, therefore, cast in wider terms than actual possession and conveying in any manner. The subsection purports to apply to a wider range of activities. “Actual possession” is a passive construction. “Conveying in any manner” is an active verb. By contrast, “receive”, “possess”, “conceal”, “dispose of” and to “bring” are all active verbs.
…….
[39]More significantly, for present purposes, there is a difference in the drafting of the two provisions as to the necessary suspicion. Section 26(1) of the Summary Offences Act provides that the subject property was “reasonably suspected of being stolen or unlawfully obtained”. Thus, the informant was required to have formed the reasonable suspicion when the defendant had the subject property “in his actual possession” or was “conveying in any manner” the subject property. By contrast, s 123 of the Confiscation Act makes it an offence for a person to engage in acts (namely “receive, possess, conceal, dispose of or bring into Victoria”) the subject property “that may reasonably be suspected of being the proceeds of crime (emphasis added). The difference between the two provisions is important. The former required the formation of a reasonable suspicion at a particular point in time. The latter, Confiscation Act provision, requires only that the subject property “may reasonably be suspected”. It will be sufficient if the informant reasonably suspects the property may be the proceeds of crime.
………
[40]It seems to me, therefore, that s 123 of the Confiscation Act cannot be construed in a constrained manner. I consider that to limit the words of s 123 and the construction of the expression “suspicion” to a suspicion reasonably formed at the time is to strain the language which Parliament has employed.
[41]……. I find that for the purposes of s 123 the possession of the goods, and the suspicion that they are the proceeds of crime, are not required to be contemporaneous. The words “that may reasonably be suspected” appear to me,….to leave the objective question as to whether the goods may reasonably be suspected of being the proceeds of crime for determination by the court trying the accused. Thus in a prosecution under s 123 no question arises as to the contemporaneity of the possession and the suspicion. Accordingly the authorities as to s 26 are not necessarily relevant to a matter arising under s 123”.
[42]Additionally, there is judicial support here in Queensland for the view[16] that, in relation to charges of possession of tainted property, it is for the court at the time of the hearing to determine objectively, based on the factual circumstances, whether it is satisfied beyond reasonable doubt that the property may reasonably be suspected of being tainted property. “It is for the magistrate to decide upon the truth of any evidence upon which it is submitted he or she can form the reasonable suspicion, not the investigating police.[17] The onus then lies on the defendant to satisfy the court that the defendant had no reasonable grounds for suspecting that the subject property was tainted; that is, that the property had been lawfully obtained.[18]
[16] McGee v. McKeever; Ex parte McGee (1994) 1Qd.R. 623
[17] McCorry v. Olive; Ex parte Olive (1963) Qd.R 130 as stated in Buttwerworths online.
[18] Gough v. Braden (1993) 1 Qd.R. 100.
[43]This court adopts the reasoning in Director of Public Prosecutions (on behalf of Oliver) v. Aaron James Sweeton, to find that the defendant in this case did “possess” the items the subject of both charges.
[44]In relation to whether or not the items the subject of Charge 1 “may reasonably be suspected of being tainted property”, the court takes into account the following matters:
[45]The undisputed evidence of Constable Richard that the defendant was unable to give an explanation in relation to his possession of the items, including his possession of two mobile phones.
[46]The photographic evidence in relation to the items, including what appears to the court to be the scratching out of the name Rasmussen and a telephone number from the reverse side of the pink Ipod;
[47]The absence of any evidence to satisfy the court on the balance of probabilities that the defendant had no reasonable grounds for suspecting that the property was tainted;
[48]For all of those reasons, the court is satisfied that the prosecution has proved the charge beyond reasonable doubt and finds the defendant guilty of the offence against s 252 Criminal Proceeds Confiscation Act 2002 (Qld).
[49]In relation to the charge against s 15 Summary Offences Act 2005 (Qld), the court takes into account the following matters:
[50]The undisputed evidence of Constable Richard, including the location of the defendant;
[51]The fact that the defendant was charged with the offence following his explanation to Constable Richard on the basis that Constable Richard did not consider the explanation to be reasonable;
[52]The absence of any evidence to satisfy the court on the balance of probabilities that the defendant’s possession of the implements was not connected to any involvement by him in the preparation of an offence, or was otherwise for a legitimate purpose.
[53]On that basis, the court is satisfied that the prosecution has proved the offence beyond reasonable doubt and the court finds the defendant guilty of Charge 2.
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