R v Cacu
[2010] NSWDC 231
•1 October 2010
CITATION: R v Cacu [2010] NSWDC 231 HEARING DATE(S): 27 September 2010
1 October 2010
JUDGMENT DATE:
1 October 2010JURISDICTION: Criminal JUDGMENT OF: Bennett SC DCJ DECISION: Appeal dismissed CATCHWORDS: CRIMINAL – conviction appeal – whether the subject money may be reasonably suspected of being stolen or otherwise unlawfully obtained beyond reasonable doubt – whether the appellant had no reasonable grounds for suspecting that the subject money was stolen or otherwise unlawfully obtained upon the balance of probabilities LEGISLATION CITED: Crimes Act 1900: s 527C
Crimes (Appeal and Review) Act 2001: s 18
Evidence Act 1995: s 55CASES CITED: R v Abbrederis [1981] 1 NSWLR 530
Anderson v The Judges of the District Court (NSW) (1992) 27 NSWLR 701
Cleary v Hammond [1976] 1 NSWLR 111
R v Dittmar [1973] 1 NSWLR 722
Grant v R (1981) 147 CLR 503
Haken v Johnson (NSWSC, Wood J, 15 October 1993 unreported. BC9302396.)
Ex Parte Patmoy; Re Jack (1944) 44 SR (NSW) 351
Purdon v Dittmar [1972] 1 NSWLR 94PARTIES: Ergun CACU
The CrownFILE NUMBER(S): 2009 / 66585 COUNSEL: William Brewer (Appellant) SOLICITORS: DPP (Crown)
Ford Criminal Lawyers (Appellant)
IN THE DISTRICT COURT
OF NEW SOUTH WALES
CRIMINAL JURISDICTION
2009 / 66585
BENNETT SC DCJ
Friday 1 October 2010
CONVICTION APPEALR v Cacu
Introduction
1 Ergun Cacu appeals from the conviction suffered in the Local Court sitting in the Downing Centre on 11 March 2010 when, after a defended hearing, a magistrate convicted him of having in his custody on 23 July 2009 $15,000.00 reasonably suspected of being stolen or otherwise unlawfully obtained: s 527C(1)(a) Crimes Act 1900. There is no issue that the appellant had the money in his custody. The appeal turns upon whether the money may be reasonably suspected of being stolen or otherwise unlawfully obtained, and if so, whether the appellant had no reasonable grounds for suspecting that the money was stolen or otherwise unlawfully obtained: s 527C(2).
General Principles
2 The appeal is against conviction pursuant to s 18 of the Crimes (Appeal and Review) Act 2001. As such it is by way of a re-hearing on the basis of the evidence given in the Local Court proceedings subject to any application to be made for the admission of fresh evidence which may only be offered and received with the leave of the court, and only if the court is satisfied that it is in the interests of justice that fresh evidence be given. During submissions the appellant’s counsel tendered a street map of the area where the police dealt with the appellant and bank statements. The Crown did not oppose the tender, and in light of the issues agitated I ruled that it was in the interests of justice that the fresh evidence be admitted. There was no other application for fresh evidence.
3 I am required to form my own view of the facts drawing upon the material that was before the Magistrate taking into account the Magistrate’s advantage of having seen and heard the witnesses give evidence. The Crown of course has the burden of proving that the money may be reasonably suspected of being stolen or otherwise unlawfully obtained. The obligation is to prove beyond reasonable doubt this essential ingredient of the charge. What that means for this offence was discussed by Kirby P in Anderson v The Judges of the District Court (NSW) (1992) 27 NSWLR 701 at page 715,
“…, there is an ambivalence in the section. The pre-conditions must, as in any other criminal offence, be established beyond reasonable doubt. How a level of thought which is qualified by what “may” be (and does not need to reach beyond what is “suspected”) can be established beyond reasonable doubt is not entirely clear. But the section exists and has survived for more than a century in substantially the same form. It can apply to banknotes. It must therefore be given meaning. Presumably the criminal onus and the words of the section must be reconciled by saying that the court before which the person is charged must be satisfied beyond reasonable doubt that the circumstances are such that the thing in question may reasonably be suspected of being stolen or otherwise unlawfully obtained.”
4 It is not the burden of the Crown to prove every piece of evidence beyond reasonable doubt or to resolve every conflict of fact that appears on evidence. My obligation is to assess as best I can the reliability and credibility of the evidence; I am required to use my common sense, drawing upon my own experience of life.
5 If the prosecution meets its burden, it is sufficient defence to the charge for the appellant to establish on the balance of probabilities that he had no reasonable grounds for suspecting that the money was stolen or otherwise unlawfully obtained.
6 When confronted by the police with the allegation against him, apart from brief exculpatory responses early in their interaction, the appellant declined the opportunity to be interviewed or make further comment. This of course he was entitled to do and no inference adverse to him is to be drawn from his decision.
7 The appellant gave evidence before the Magistrate. He did not thereby assume any burden of proof upon the matters that the Crown is obliged to prove.
8 The evidence before the Magistrate included the representation that the police knew the appellant from other circumstances. Whether these included episodes of misconduct is not said. This material ought not to have been before the Magistrate. The appellant did not raise his character. I disregard this evidence as irrelevant to the questions I must decide.
The Offence of Goods in Custody
9 Anderson v The Judges of the District Court (NSW) ibid provides an analysis of this offence, including when the subject of the charge is money. Kirby P at page 714 observed that the mental element to be established was that the thing in custody may be reasonably suspected of being unlawfully obtained, and that the word “may” falls short of “is”, “suspicion” falls short of “knowledge”, but the suspicion must be reasonably held, determined not according to the subjective beliefs of the police at the time, but according to an objective criterion determined by the court.
10 Money in specie may be the subject of this charge: R v Dittmar [1973] 1 NSWLR 722, but the money in the custody of the person charged must itself be suspected. Thus, even though the money might be drawn from an account into which money reasonably suspected was deposited, the offence would not be made out: Grant v R (1981) 147 CLR 503. The term “unlawful activity” extends to any unlawful activity including the sale of drugs: Purdon v Dittmar [1972] 1 NSWLR 94, R v Dittmar ibid; Haken v Johnson (NSWSC, Wood J, 15 October 1993 unreported. BC9302396.)
11 It is at the time of the hearing whether, upon an objective assessment of the evidence, the money may be reasonably suspected of being stolen or otherwise unlawfully obtained, and evidence available at the time of the hearing that is relevant to this question is admissible. The prosecution is not limited to the evidence that was available at the point of the arrest: Ex Parte Patmoy; Re Jack (1944) 44 SR (NSW) 351; Cleary v Hammond [1976] 1 NSWLR 111; R v Abbrederis [1981] 1 NSWLR 530; Haken v Johnson ibid at 9, 12 & 14. In support of the proposition that the money may be reasonably suspected of being stolen or otherwise unlawfully obtained the prosecution may rely upon the evidence, including in the response to cross examination, of an unlawful activity different to that initially suspected: Haken v Johnson ibid.
12 The appellant’s counsel submitted that in this instance there was no evidence available to the prosecution upon which one could come to the view that the money may be reasonably suspected of being stolen or otherwise unlawfully obtained, and that accordingly, the appellant ought not to have been called upon to explain to the magistrate the source of the money. Upon this premise it was submitted that unless the prosecution evidence satisfies me beyond reasonable doubt that the money may be reasonably suspected of being stolen or otherwise unlawfully obtained I should not consider whether appellant has proved upon the preponderances that he had no reasonable grounds for suspecting that the money may be stolen or otherwise unlawfully obtained. I was reminded that the District Court Judge in Anderson v The Judges of the District Court(NSW) ibid took this two-tier approach.
13 Implicit in this submission is the proposition that doubt about the appellant’s explanation for his custody of the money that might tip the scales against him upon whether he had no reasonable grounds for suspecting the money, must not infect consideration of whether the Crown has met its burden, and that if it has not done so, the appellant is entitled to an acquittal without any reference to his evidence or other evidence tendered on his behalf.
14 To the extent that the submission suggests that I must exclude the evidence of the appellant when considering whether the money may be reasonably suspected of being stolen or otherwise unlawfully obtained, I reject it as contrary to the authority to which I have referred. If the appellant’s evidence and items of evidence tendered on his behalf could rationally affect (directly or indirectly) the assessment of the probability that the money may be reasonably suspected of being stolen or otherwise lawfully obtained it is relevant: s 55(1), Evidence Act 1995, and may be considered with the evidence led in the prosecution case. However, if at the end of the day the evidence in the appellant’s case adds no more than an explanation for his custody of the money, and even though I might reject entirely that evidence, he is entitled to an acquittal unless the evidence adduced by the Crown proves to my satisfaction beyond reasonable doubt that in the circumstances the money may be reasonably suspected of being stolen or otherwise unlawfully obtained.
The Evidence
15 According to Constable Geoffrey Dean’s statement, Exhibit 1 before the Magistrate, shortly before 6 pm on Thursday 23 July 2009 when patrolling with Constables Lentfer and Barker in an unmarked police car he saw the appellant with Michael Robertson in Bay Street Ultimo. They were at the rear of a black Holden HSV sedan. They were said to be acting suspiciously. The statement does not describe the conduct said to lead to this impression.
16 Records revealed that the vehicle registration had expired on 25 June 2009.
17 The police travelled around the block and returned to see the vehicle travelling from Bay Street toward Wentworth Park Road. The police attracted the driver’s attention using emergency lights and a siren. Robertson told the police the vehicle was registered to his company, that he did not have his licence, and invited them to follow him around the corner to his home where he would retrieve it. Constable Dean saw the appellant in the front passenger seat. He described him as “sunken back into his seat” and looking in the opposite direction to avoid eye contact. Though expressed as a conclusion, the constable could do no more than infer that this might have been the appellant’s purpose.
18 Constable Dean said that at no time did the appellant appear curious about what was happening. He suggested the appellant’s conduct appeared unusual. Robertson appeared to be extremely anxious until the vehicle’s unregistered status was raised, and the possibility of a $600.00 fine for driving the vehicle whilst unregistered “didn’t faze him”. Once again, these conclusions must have been inferred from Constable Dean’s observation of Robertson’s presentation.
19 Constable Dean’s observations caused him to suspect that the vehicle or the occupants might have illegal items.
20 The police then followed Robertson and the appellant to the vicinity of 2 Elger Street, near the intersection of Stirling Street. There Constable Dean took their details and made enquiries via their radio. The statement includes the representation that the police knew both men. I disregard this information as irrelevant.
21 Constable Dean noticed two mobile phones, one in the appellant’s lap and the other in his hand. The appellant admitted that both were his.
22 Constable Dean told the appellant that he was going to search him because he believed on reasonable grounds that he might be in possession of drugs. When asked why, he said that the behaviour was very suspicious, and drug dealers were known to use multiple phones. The appellant consented to the search. Constable Dean noticed a bulge in the appellant’s jacket and asked what it was. The appellant said that it was his money, the amount of $15,000.00. He was cautioned and he declined to say anything further apart from when asked how he got the money, to which he said, “From the bank.” Constable Dean commented that automatic teller machines do not issue that amount of money, to which the appellant replied, “I told you I’m not saying anything.”
23 The appellant was thereupon arrested. Constable Dean searched the vehicle and found a further two mobile phones, one of them in the front passenger door and the other in the centre console. In paragraph 16 Constable Dean wrote that when searching the vehicle he concentrated on the front passenger seat, but located a phone in the driver’s door. In paragraph 17 he refers to the phone as from the front passenger door. In evidence he said that the phone was found in the front passenger door. I accept that when preparing the statement he made an error recording that the phone was found in the driver’s door.
24 The appellant was taken to Newtown Police Station, and there refused to answer questions, as he was entitled to do.
25 Constable Deane was the sole witness called by the prosecution. The other police officers were not required.
26 There was some confusion as to the inclusion of three mobile telephones in the charge, but this resolved and the hearing proceeded upon the charge amended to include the telephones as things that may be reasonably suspected of being stolen or otherwise unlawfully obtained. The Magistrate ultimately found the offence proved only in respect of the $15,000.00.
27 Constable Dean’s evidence followed the content of his statement, with the following additional facts described,
1) He asked about the phones found in the front passenger doorsill and the centre console and the appellant said they were not his. (Page 7, from line 4.)
2) He examined all telephones, including that from the centre console, claimed by the appellant to be his, supported by images of his family and messages in the memory in relation to his children. This telephone he returned to the appellant. (Page 14, from line 12.)
3) The message boxes of the other three telephones were empty of received and sent messages. Constable Dean gave evidence that these had been cleared. There is no evidence of how he could come to that conclusion. (Page 14, from line 32.)
4) There were three men at the rear of the vehicle when Constable Dean first saw the appellant and Robertson. They were looking over their shoulders in a manner consistent with concern about others looking at them or paying attention to what they were doing. He observed them for 3 to 4 seconds as he drove past. (Page 14, from line 43.)
6) An application made for the discontinuation of the prosecution was unsuccessful. It was supported by copies of a bank statement, a copy of which Constable Dean recognised when it was shown, recording a withdrawal of $15,410.00 from an account in the appellant’s name. (Page 17 from line 9.)5) When the appellant alighted from the vehicle he was anxious, and abrupt, and questioned the request that he leave the vehicle and the concern about what he had on his person. (Page 15, from line 31.)
28 Enquiries regarding all telephones apart from that from the centre console revealed that they were not in the appellant’s name. (Page 9, from line 50.) The appellant’s solicitor objected to this evidence after it was given and the tender by the prosecutor of records from the telephone service provider. The point was not adequately addressed in argument before the Magistrate, who in any event rejected the evidence (page 13, from line 18), and the point was not agitated in the appeal. Accordingly I put this matter to one side.
29 There was no cross examination of the Constable challenging his evidence of the observations made of the appellant, Robertson, and the other man at the rear of the vehicle. The appellant’s solicitor expressly disavowed any intention to argue that the actions of the police in stopping and searching the vehicle and its occupants were improper. (Page 11, from line 11, and page 15, from line 22.) The cross examination did not include any suggestion that the appellant did not behave in the manner described by the Constable, but focussed upon the reasonableness of the impressions the Constable said he took from his observations.
30 After the close of the prosecution case there were no submissions made upon whether the evidence proved beyond reasonable doubt that the $15,000.00 may be reasonably suspected of being stolen or otherwise unlawfully obtained.
31 The appellant gave evidence of the following facts,
1) He told the police at the time that the money was his, from his bank. (Page 19 from line 26.)
2) He was in possession of the phone on the seat between his legs and the other in his hand. He bought them for cash. He presumed the driver Robertson owned the other two phones. (Page 19 from line 32.)
3) He produced bank documents, Exhibit 2. (Page 25 line 25). These were in respect of a deposit of $55,795.39 into a Westpac account from his mother’s sale of property in Turkey, and the withdrawal from another Westpac account of $15,410.00 on 21 April 2009, which the appellant claimed included the $15,000.00 in his custody when arrested. (Page 20 from line 4.)
4) He withdrew the money from his account to have cash to pay for airline tickets to travel with his mother to Turkey. He had the money with him on the day because he intended to call upon Flight Centre in the Broadway shopping centre, but was deflected from that intention by other activity. He preferred to pay for the tickets with cash. (Page 22 from line 7 and page 23 from line 45.)
5) He took the money home after the withdrawal and kept it awaiting an appropriate date to purchase the tickets. (Page 23 from line 9.)
6) He purchased the tickets on 4 February 2010 for $11,927.00 with cash borrowed from his sister. (Page 24 from line 40). The appellant’s solicitor sought to tender the receipt for that transaction, but withdrew the tender when the prosecutor objected and the Magistrate questioned its admissibility. I fail to see why the receipt issued upon that transaction was inadmissible. In any event there is no challenge raised by the Crown on the appeal to the fact that there was such a transaction.
8) The appellant was cross examined upon the time line extending from when he withdrew $15,410.00 on 21 April 2009, to the retention of the money until his arrest on 23 July 2009, to 4 February 2010 when tickets were bought using money borrowed from his sister, viewed against the sequence of transactions upon his account and the money standing to his credit throughout. (Page 30 from line 28.) His responses to questions, leading to the proposition that the evidence was a misrepresentation to explain the money, were in a number of instances not responsive, and when read in their entirety did not in my judgement satisfactorily explain why he kept such a relatively large sum of money at home over the period claimed. His responses to questions from the bench at page 42 from line 9 similarly did not adequately explain why he withdrew the money after he made enquiries of some travel agents for prices, why he did not for some three months visit the Flight Centre nearby to the bank where he claimed he would use the money for air tickets, and why he was waiting to confirm his mother’s wishes as to the time and days she wanted to fly.7) When cross-examined the appellant explained the reasons for having two accounts, between which there was a transfer of funds. He acknowledged that this was upon the recommendation of the bank, to provide him with more interest. (Page 28 from line 8).
32 The bank statements, Exhibit 2 before the Magistrate, were supplemented with further pages admitted as fresh evidence in the Appeal: Exhibit 1.
33 In respect of the appellant’s account number 73-4808,
1) On 17 October 2008 $55,785.39 was credited.
2) On 21 April 2009 $15,410.00 was withdrawn.
3) On 24 April 2009 $1,600.00 was deposited.
4) On 1 May 2009, 6 May 2009, and 7 May 2009 withdrawals totalling $2,500.00 were made.
5) On 15 May 2009 $2,000.00 was deposited.
6) On 25 May 2009 two withdrawals totalling $1,500.00 were made.
7) On 29 June 2009, 10 July 2009 and 13 July 2009 deposits totalling $71,122.00 were made.
8) On 17 July 2009 the credit balance was $72,241.09.
34 The funds withdrawn on 21 April 2009, the appellant said, included the $15,000.00 cash the subject of the charge, and the deposit on 17 October 2008 of $55,785.39 was the money credited to him from the sale of property in Turkey by his mother. Exhibit 2 before the Magistrate includes the bank credit advice confirmation of the receipt of the funds. The particular account statement showing the deposit was not produced.
35 In respect of the appellant’s eSaver account number 58-6959,
1) On 29 October 2008 $57,000.00 was credited.
2) On 31 October 2008 and 28 November 2008 interest totalling $137.02 was credited.
3) For the financial year ended 30 June 2009 total interest credited was $1,366.42.
4) On 30 June 2009 and 17 July 2009 interest totalling $141.23 was credited.
5) On 23 July 2009 $74,673.09 was deposited.
6) On 24 July 2009 the credit balance was $133,039.81
36 The appellant said in terms that the credit of $57,000.00 was from the account number 73-4808. The statement for the account number 73-4808 with that transaction was not produced, but I admitted as fresh evidence the relevant eSaver account statement: Exhibit 1 in the appeal.
The Prosecution Case
37 I am satisfied that the $15,000.00 in the custody of the appellant may reasonably be suspected of being stolen or otherwise unlawfully obtained.
38 There was no challenge to the evidence that the appellant, Robertson, and a third man were standing at the rear of the Holden HSV vehicle and behaving as described by the police. This was so notwithstanding that the Constable did not include that detail in the statement. The appellant gave no evidence contradicting the observations. I accept that the police saw the appellant as described.
39 It was submitted, however, that the 3 to 4 seconds during which the police saw them was insufficient time for one to form the view that they were behaving suspiciously. I do not agree. Three men standing closer to each other apparently looking about as if to see if they are being watched could so engage and be seen in that conduct within that time span.
40 There was no challenge to the description of the appellant’s demeanour when the police addressed him and Robertson. I accept that he so behaved. Even though there could be other reasons for the appellant not wishing to become involved in the interaction between the police and Robertson, the description given allows the finding that the appellant was not at all comfortable with the interest being shown by the police.
41 Counsel submitted that the invitation by Robertson to the police to have them follow him to his home was conduct inconsistent with the proposition that they were acting suspiciously. However, the demeanour attributed to Robertson, which I accept, was consistent with the proposition that once he was aware that the police were concerned about the unregistered status of the vehicle, his anxiety dissipated. Moreover, his choice to facilitate matters by leading the police to where his licence might be produced to them might equally reflect his desire to moderate their suspicion.
42 There were four mobile phones in the car. As observed by the Magistrate in her Honour’s reasons, it is often the case that offenders dealing drugs are known to make use of multiple telephones for their trade. The courts see this frequently when dealing with such offending.
43 On the 3 telephones seized there were no messages retained.
44 Finally, there is the fact that the appellant had with him $15,000.00 in cash, a not insignificant sum, bundled and in the pocket of his hooded jacket.
45 Although the police officer maintained and was tested upon his suspicion of the money, prompted by the behaviour of the appellant and Robertson, that is not the test required. The court must consider the evidence, including that in the defence case relevant to the facts that the Crown must establish, to determine whether upon an objective assessment of that evidence the money may reasonably be suspected of being stolen or otherwise unlawfully obtained.
46 Each of these circumstances standing alone would not prove the prosecution case, however in combination they persuade me that the prosecution has established the elements of the offence.
The Defence Case
47 The appellant did not persuade me that he had no reasonable grounds for suspecting that the money was stolen or otherwise unlawfully obtained.
48 I do not accept as probable that the money was held for the purposes he claimed, or that it was the same money that was delivered to him when he made the withdrawal on 21 April 2009. In my judgement it is highly unlikely that the appellant, aware of the advantages of having such a not insignificant sum of money held in his eSaver account where it would earn appropriate interest for the period between the date of withdrawal, 21 April 2009, until February 2010 when he said the tickets for which the money was intended were purchased. I find it improbable that he would withdraw the money from his account and store it at home, in light of the transactions recorded in the statements in the period that followed to the point of his arrest. I find it improbable that he would withdraw the money from the bank, located near to the travel agent to which he said he was going on the day of his arrest to transact the business, and hold that money at home until 23 July 2009, some 3 months, whilst he waited upon his mother to tell him when she wanted to travel.
49 The appellant’s counsel submitted that people do strange things when it comes to cash. This may be so. However I find the explanation for the money implausible, even allowing for the vagaries of human nature regarding cash.
Conclusion
50 The conduct of the appellant and Robertson and the third man at the rear of the vehicle, and the subsequent presentation of the appellant and Robertson when dealing with the police, the number of telephones found in the car, three of them without any text messages, and the sum of money carried by the appellant in the pocket of his jacket, in combination satisfy me beyond reasonable doubt that the money may reasonably be suspected of being stolen or otherwise unlawfully obtained. I find further support for this finding in the transactions recorded in the statements of account tendered before the Magistrate and on the appeal in the period leading up to the time of the arrest, which in each instance, apart from the withdrawal on 21 April 2009, do not compare with the money found.
51 I am not persuaded that it is more likely than not that the appellant had no reasonable grounds for suspecting that the money was stolen or otherwise unlawfully obtained. I do not accept that the withdrawal on 21 April 2009 included the $15,000.00 seized by the police, and I do not accept that there was such a sum held by the appellant for the purposes he claimed.
52 For these reasons I dismiss the appeal from conviction.
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