Reed v The King

[2023] NSWDC 331

District Court

New South Wales

Medium Neutral Citation:

Reed v R [2023] NSWDC 331

Hearing dates:

03 & 27 July 2023

Date of orders:

27 July 2023

Decision date:

27 July 2023

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

(1) The appeal from conviction is dismissed.

(2) The appeal from sentence is allowed.

(3) Confirm the finding of guilt but without proceeding into conviction, Appellant to be of good behaviour for a period of 18 months from today pursuant to s 10(1)(b) Crimes (Sentencing Procedure) Act 1999 in conjunction with s 9 of the Act.

Catchwords:

APPEALS — Orders on appeal 

CRIME — Proceeds of Crime — Dealing with money suspected of being proceeds of crime

Legislation Cited:

Crimes Act 1900

Crimes Appeal and Review Act 2001

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Evidence Act 1995

Law Enforcement Powers and Responsibilities Act 2002

Supreme Court Act 1970

Cases Cited:

Cleary v Hammond [1987] 1 NSWLR 111

Dyason v Butterworth [2015] NSWCA 52

Ex PartePatmoy; re Jack (1944) 44 SR (NSW) 351

Grant v R [1981] 147 CLR 503

Hakem v Johnson NSW Supreme Court per Wood J on 15 October 1993 unreported

in Anderson v Judges of the District Court of NSW (1992) 27 NSWLR 701

Kelly v The Queen (2004) 218 CLR 216

Lunney v DPP [2021] NSWCA 186

Purdon v Dittmar [1972] 1 NSWLR 94

R v Abbrederis (1981) 1 NSWLR 530

R v Dittmar [1973] 1 NSWLR 722

Texts Cited:

Criminal Practice and Procedure NSW

Category:

Principal judgment

Parties:

Jamie Lourene Reed (Appellant)
Rex (Respondent)

Representation:

Rajiv Baldeo (Counsel for the Appellant)
Jason Rafeeq (Solicitor for the Respondent (ODPP))

Hugo Law Group (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2021/00019358

 Decision under appeal 

Court or tribunal:

Sutherland Local Court

Jurisdiction:

Criminal

Date of Decision:

18 November 2022

Before:

P Lyon LCM

File Number(s):

2021/00019358

EX tempore revised JUDGeMENT

INTRODUCTION

(The revision of this ex tempore judgement was without access to the transcript of the proceedings in the Local Court and accordingly the entire accuracy of the passages quoted is not confirmed.)

1. Jamie Lourene Reed appeals from the conviction she suffered in the Local Court at Sutherland on 18 November 2022 after defended hearing of charges of dealing with the proceeds of crime to the value of less than $100,000.00 contrary to s 193C(2) Crimes Act 1900 and having in her custody the sum of $31,498.00 which may reasonably be suspected of being stolen or otherwise unlawfully obtained, an offence created by s 527C(1)(a) Crimes Act 1900. A further charge of possession of prohibited drug contrary to s 10(1) Drug Misuse and Trafficking Act 1985 was withdrawn before the closing submissions in the Local Court.

2. The Magistrate dismissed the charge of dealing with the proceeds of crime but found the charge of goods in custody proven, whereupon on that day the appellant lodged her notice of appeal within the time in which she was entitled to pursue an appeal as provided in s 11 Crimes Appeal and Review Act 2001.

THE NATURE OF THE APPEAL

3. The appeal from the conviction is pursuant to s 18 Crimes Appeal and Review Act 2001. This provides relevantly;

(1)    An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19.

(2)    Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

(3)    ..

4. S 19 provides relevantly;

(1)    The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied—

(a)  in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or

(b)  in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence.

5. There was no application to adduce fresh evidence nor to have a witness called to give further evidence and face cross-examination.

6. S 20 of the Act provides;

(1)    The District Court may determine an appeal against conviction—

(a)  by setting aside the conviction, or

(b)  by dismissing the appeal, or

(c)  ….

7. The approach to appeals from convictions in the Local Court was the subject of decisions in the Court of Appeal including Dyason v Butterworth [2015] NSWCA 52 in which it was said;

1. Such an appeal is not an appeal de novo.

2. The approach to be taken is analogous to that taken on a civil appeal under s 75A Supreme Court Act 1970, the judge to form judgment of the facts recognising the advantage of a magistrate having saw the witnesses in the Local Court.

3. The powers of the District Court under s 18(1) are exercisable where an appellant demonstrates the order the subject of the appeal is the result of legal, factual, or discretionary error, in which case the Court can substitute its own decision based on the facts and law as they then stand.

4. The District Court is not compelled in every case to undertake a complete review of the whole of the evidence to form its own view regardless of the issues raised.

5. The extent of the review required will depend upon the circumstances of the case and the nature of the error alleged: Lunney v DPP [2021] NSWCA 186.

8. The discussion in Criminal Practice and Procedure NSW [4-S18.1] summarises these propositions.

9. By way of general direction, subject to the authorities to which I referred and to the extent that they must be considered in reaching my findings of fact and circumstances in which the appellant is said to have offended the provision, I accept the following propositions.

1. It is for me to assess the evidence of the witnesses and decide whether they are reliable. Reliability depends upon two overlapping considerations, honesty, and accuracy. Honesty involves considering not only what the witness said or did not say but also the impression that the witness made. The question to be resolved is whether the prosecution has proven the guilt of the appellant beyond reasonable doubt upon evidence admissible in the prosecution case.

2. I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and my common sense.

3. These are criminal proceedings in which the prosecution has the onus of proof beyond reasonable doubt in respect of every element of the charge.

4. It is not for the appellant to prove that she did not commit the offence but for the prosecution to prove beyond reasonable doubt that she did. Suspicion is not a substitute for proof beyond reasonable doubt. The appellant must succeed if any one of the essential ingredients of the charge has not been proved to my satisfaction beyond reasonable doubt.

5. If I am unable to decide whether the prosecution has proved its case beyond reasonable doubt in relation to any essential ingredient or if I am left unable to decide whether the prosecution has proved beyond reasonable doubt that the appellant committed the offence, even though I might suspect that the appellant might have engaged in the conduct upon which the charge is brought, the appellant is entitled to the benefit of that doubt and I must allow the appeal.

6. The prosecution relies upon evidence of the circumstances in which the money the subject of the charge was found in the appellant’s custody and contends that from them, the money may reasonably be suspected of being stolen or otherwise unlawfully obtained. Accordingly, the following principles are brought to account.

1. I may draw inferences from the direct evidence. They might be valid or invalid, justified, or unjustified, correct, or incorrect. I may only draw an inference adverse to the appellant from proven facts if such inferences are reasonable inferences that can be properly drawn from the proven facts. I should examine any possible inference to ensure that it is a justifiable inference.

2. Because the onus of proof is on the prosecution to prove beyond reasonable doubt every essential element or ingredient of the charge and that the appellant committed the offence, any inference or conclusion from basic facts relied upon by the prosecution for this purpose must be a conclusion reached having taken into consideration the material presented on behalf of the prosecution and after having carefully considered the evidence presented by and on behalf of the appellant and the submissions for both.

3. There are two steps in this exercise. I must first of all decide whether I am satisfied that the direct evidence establishes the basic facts. These need not be proved beyond reasonable doubt. I examine the evidence with care and consider whether it is reliable before taking the next step and drawing any conclusions from the facts that I regard as established by it. If in my view it is not sufficiently reliable to allow me to conclude what the prosecution asserts after having taken it to consideration and given due weight to the submissions of both parties, I must allow the appeal.

4. If, however, I am satisfied that the direct evidence has established the basic facts for which the prosecution contends then I must consider what inferences I might draw from those basic facts. Whether the inferences for which the prosecution contends are established depends upon the nature of the circumstances relied upon, considered as a whole, not individually or in isolation and the degree of clarity and certainty with which the evidence leads to the conclusion that the prosecution has established this case.

5. Before I may draw any inference of the existence of essential matters the prosecution must prove or the appellant’s guilt, I must be satisfied as to the existence of the facts and circumstances from which I am asked to draw the conclusion and must avoid any speculation or conjecture in arriving at a conclusion that is averse to the appellant. If such a conclusion is to be drawn beyond reasonable doubt it must be on the basis of a rational and logical process of thought. If there is available an alternative hypothesis consistent with innocence, the appeal must succeed.

THE OFFENCE

10. The particulars of the offence charged are;

Between 9.30pm and 9.45pm on 31 October 2020 at Caringbah, the [appellant] did have in [her] custody of certain property to wit $31,498 Australian currency which may be reasonably suspected of being stolen or otherwise unlawfully obtained.

11. The elements of the offence are that at the time and at the place alleged, the appellant;

1. Had in her custody,

2. $31,498,

3. Which may be reasonably suspected of being stolen or otherwise unlawfully obtained.

12. The third element will be proven if the Court is persuaded beyond reasonable doubt of the circumstances for which the prosecution contends and that they are such that the money may reasonably be suspected of being stolen or otherwise unlawfully obtained.

13. The discussion in Criminal Practice and Procedure NSW [8-s 527C.10] "Reasonably suspected of being stolen" provides an accurate summary of the relevant principles.

14. The nature of this offence was considered by Kirby P in Anderson v Judges of the District Court of NSW (1992) 27 NSWLR 701. At p 715 his Honour said,

“There is an ambivalence in the section. The preconditions 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 more than the century and substantially of the same form. It can apply the bank notes. 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.”

15. Kirby P provided an analysis of this offence including the mental element that must be established, namely that the thing in custody may be reasonably suspected of being unlawfully obtained. The word “may” falls short of this and a 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 objective criteria determined by the Court. Money in specie may be the subject of the charge: R v Dittmar [1973] 1 NSWLR 722. But the money in the custody of the person charged must itself be suspected. Thus though money that might have been suspected is paid into an account, any money that is subsequently drawn from the account and which is found in possession of the offender cannot of itself be the subject of a successful prosecution for this offence: Grant v R [1981] 147 CLR 503.

16. The question to be determined is whether it is reasonable to suspect that the money might have been unlawfully obtained in some way, which might include conduct whereby it might have been acquired in the course of the supply of prohibited drugs. 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, Hakem v Johnson NSW Supreme Court per Wood J on 15 October 1993 unreported, found at Butterworths reference BC9392396.

17. It is at the time of hearing whether upon an objective assessment of the evidence there is a reasonable suspicion that the money was stolen or otherwise unlawfully obtained; evidence available at the time of the hearing, relevant to this question is admissible. The prosecution is not limited to the evidence that was available at the point of arrest: Ex Parte Patmoy; re Jack (1944) 44 SR (NSW) 351, Cleary v Hammond [1987] 1 NSWLR 111, R v Abbrederis (1981) 1 NSWLR 530, Hakem v Johnson ibid at pp 9, 12 and 14.

18. 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 the responses in cross-examination of an unlawful activity, different to that initially suspected: Hakem v Johnson ibid. If the prosecution meets its burden, it is sufficient defence to the charge for the appellant to establish on the balance of probabilities that she had no reasonable grounds for suspecting that the money was stolen or otherwise unlawfully obtained.

19. The appellant gave evidence before the magistrate. She did not thereby, assume any burden of proof upon the matters that the Crown was obliged to prove. Her burden of proof was limited to the obligation she had to discharge upon the balance of probabilities to prove that she had no reasonable grounds for suspecting that the money was stolen or otherwise unlawfully obtained.

THE LOCAL COURT HEARING

20. Upon commencement of the hearing in the Local Court, the appellant’s representatives outlined the basis upon which the prosecution was contested including asserted failure by the police in their responsibilities enlivening s 138 and s 85 Evidence Act 1995.

21. The essence of the complaints was that the police failed to adequately caution the appellant who was at the time apparently under the influence of drugs, failed to tell her she was under arrest and the reasons for the arrest, and failed to explain the purported exercise of powers when they searched her handbag where she had the money.

22. The proceedings commenced before the magistrate with a voir dire to determine the admissibility of the evidence offered by the prosecution, after which the evidence there produced was tendered on the substantive hearing leading to the conviction.

23. The appellant gave evidence on the voir dire and in the substantive hearing. The appellant was not required to do so and subject to the burden she might have had to persuade the Court on the balance of probabilities that she had no reasonable grounds for suspecting that the money was stolen or otherwise unlawfully obtained, she assumed no burden of proof in respect of the matters that the prosecution was obliged to establish. She did not have to prove that her version of those facts was true. The prosecution must prove that the account given by the appellant should not be accepted as the version of events that could reasonably be true.

24. If the appellant’s evidence is believed, the appeal must be allowed. If the appellant’s evidence is difficult to accept but it might be true then the appeal must be allowed. If the appellant is not believed upon the matters the prosecution must prove, her evidence should be put to one side, leaving alive the question whether the prosecution upon the basis of evidence accepted, proved the circumstances upon which it relies for the conclusion that the money might be reasonably suspected of being stolen or otherwise unlawfully obtained.

THE LOCAL COURT DECISION

25. The learned magistrate dismissed the charge of dealing with the proceeds of crime, contrary to s 193C(2) Crimes Act 1900 which provided at the time and prior to amendment of the Act,

(1)    …

(2)    A person is guilty of an offence if—

(a)  the person deals with property, and

(b)  there are reasonable grounds to suspect that the property is proceeds of crime, and

(c)  at the time of the dealing, the value of the property is less than $100,000.

(3)    …

(4)    …

26. It is not entirely clear how this decision was reached. I note at p 51 of the transcript of 18 November 2022 at line 42 his Honour said;

“Going to the gradient of that matter, the Court note (sic) there is no issue she had the money in her possession although certainly - that it is certainly $31,498. In the circumstances as described, no (sic) that by the pleas, that goes to the charge 3, and the Court finds that established. Having found that established, the Court in relation to sequence two, should the Court say, Mr Prosecutor.”

27. Sequence three was the charge of having custody of the money reasonably suspected being stolen or otherwise unlawfully obtained. Sequence two was the offence of dealing with the proceeds of crime.

28. The passage quoted is by its terms ambiguous. There followed immediately after it an exchange between the prosecutor and the magistrate, including by his Honour at line 50 on p 51,

“…do you want that dealt with within sequence 3?”

29. This must be a reference to the offence charged in sequence two. The prosecutor continued with reference to the two sequences and said;

“If your Honour was not too satisfied (sic) in relation of sequence two (sic) but was satisfied in relation of sequence.”

30. His Honour then interrupted,

“I found sequence 3. Unlawfully stolen or unlawfully obtained, and she has admitted both of those.”

31. His Honour continued;

“In summarising briefly against the background of the Court”, he continued, “I think in the judgment I clearly say that I do not know where it has come from. Whether it is good or bad –“

whereupon the prosecutor withdrew from further submissions.

32. His Honour then asked,

“Are you happy for it to be marked dismissed? That is all I was leading to.”

33. The prosecutor;

“If that is your Honour’s view, … yes.”

34. His Honour then continued on p 52 of line 28;

“For the reasons I have just indicated, the Court could not be satisfied whether it was lawfully or unlawfully obtained under that section, as opposed to the admissions lastly on the other. Sequence 2 will be marked dismissed after evidence and convicted.”

35. His Honour then continued with regard to what was known of the appellant.

36. The passages quoted if accurately recorded, reflect a measure of ambiguity and imprecision but read as a whole beginning at p 50 through to line 33 on p 52 I find that the magistrate concluded, whatever the reason, that the offence charged in sequence 2 was either not made out or was subsumed in the allegation upon which sequence 3 was prosecuted.

35. I also note that his Honour spoke of “...admissions lastly on the other”. That must have been a reference to what his Honour said at p 50 and I shall quote from line 50;

“There is no issue that the defendant is in possession of the money, and she spontaneously tells the police against the background, ‘have you got anything there.’” That is the background that the Court has already indicated on the record and says “Well, look. I took the money. It was my partner’s money. I took it out of the safe. It is not drug money. I took it off him, he was at the football and I had it. But I was taking it from him. I was drug affected.”

38. I am not clear whether his Honour was quoting the evidence given by the appellant to which I shall refer when I return to it. His Honour continued then on p 51 at line 9;

“Clearly, as to anything from that person as to his claim for the money, as to how he obtained the money, where he got it from, how he was dealing with it. She says it was going to be for the purpose of paying tradesmen cash to do certain renovations in relation to the shop. But there is not one scintilla of evidence, even on the simple standard to corroborate that. Other than that, is the untested assertion you give that, and on it, the prosecution did not contest it. But without that person here, it is all hearsay in relation to how that money could be obtained.

She can say he told me. It might be true. Everything might be true about the drugs. Everything might be true about he was earning an honest, proper restaurant. But in relation to the suspicion and the circumstances, there have been no explanation other than the conflicting version from the defendant. On one hand, what I tell the police this night, I can remember everything.

That is important as it comes to a technical matter. As opposed to other matters, ‘I cannot say anything about that. I have been taking drugs for three days. I cannot remember anything about it.’

But anything that is important that is true, that is not true. What I said then, I do not say is true today, but tomorrow, well, that is not right. It is a different story.”\

Her credit in the Court’s view from changing from being lucid, aware, alert, through to being severely depressed and needing to go to the hospital and was suffering and having delusions, the two just do not sit together.

Clearly, in the Court’s view, it was her statement if her statement is true. “Well, they stole it off him in layman’s terms.”

39. His Honour then referred to a certificate which must have been a reference to s 128 Evidence Act 1995. He continued;

“Suspicion that the money is unlawfully taken, stolen, or otherwise unlawfully obtained. Or as to the other hypothesis she put forward, it is from drug money. That is consistent too. And it may well be. We have got no idea. It is based on her conflicting versions.”

40. His Honour continued with the passage I quoted earlier from line 42.

41. The analysis provided by his Honour in my view brings forth the proposition that this Court is now required to embark upon its own assessment of the material because, to adopt rather what was said by the Court of Appeal in Dyason v Butterworth ibid to which I earlier referred, there is scope for finding that the results articulated by his Honour might reflect at least a measure of legal, factual, or discretionary error. It is difficult to be precise and identify exactly to what extent his Honour fell into error because of the terms of the judgement which he delivered ex tempore, but that of itself is sufficient to enliven the considerations identified in Dyason v Butterworth ibid and Lunney v DPP ibid.

CONSIDERATION

42. All of that said, in bringing to account the authorities to which I referred, for the offence of having custody of money reasonably suspected of being stolen or otherwise unlawfully obtained, I am persuaded on the evidence that has been presented to this Court, drawing upon that which was before the magistrate, that the elements of the offence are established and that the appellant has failed to discharge the burden of proof that she had to demonstrate a basis upon which she might avoid responsibility for having received the money.

43. The evidence that went before the magistrate included statements by the police and evidence given by one of the police officers through whom statements were tendered, evidence by the appellant and cross-examination of the appellant. The evidence on the voir dire was tendered on the substantive hearing and the appellant gave further evidence.

44. The appellant’s submissions include a summary of facts which compare with the summary of facts provided in the Crown submissions. The points highlighted from that material are as follows;

1. At 9.13pm on 31 October 2022, she called triple-0 and told the operator she needed the police to take her home to an address at Cronulla. She did not know where she was and said that she was being followed by her ex-partner and other persons, and “I’m scared.”

2. It is uncontroversial that the police responded to that call. They arrived near the railway station at Caringbah.

3. She was walking down the street at the time when they approached her, holding two bags, one handbag in which the money was found. She was upset, emotional and expressed fear. She appeared distracted and continuously looked around, unable to concentrate.

4. She told the police, according to their evidence, “I’ve had to take more coke than usual to get the courage to leave him.” She said, “I’ve done a lot of cocaine and I’m really scared.

5. The police concluded that she was under the influence of prohibited drugs.

6. The police refused to take her to the house at Cronulla or to hospital. They told her that they were taking her to Sutherland to have a statement taken from her, regarding her partner or former partner.

7. The police officer expressed concern about the amount of cocaine that she had taken and asked if she had anything on her that she should not have, in response to which she said, “I should tell you, I have his drug money,” whereupon she showed the police the contents of her bag. The police took the two bags. They opened the handbag and saw a large amount of Australian currency and informed her that the money would be confiscated.

45. Relevant to those actions, s 85 Evidence Act which provides;

(1)    This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant—

(a)  to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or

(b)  as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.

(2)    Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3)    Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account—

(a)  any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and

(b)  if the admission was made in response to questioning—

(i)  the nature of the questions and the manner in which they were put, and

(ii)  the nature of any threat, promise or other inducement made to the person questioned.

46. I am not persuaded that on the summary of facts which I have offered, drawing upon the submissions made and the evidence that was before the magistrate, including the evidence given by the appellant, that the responses to which I have referred so far were not admissible. I am satisfied that in the circumstances, notwithstanding that the appellant was distressed and had ingested what appears to have been a significant quantity of cocaine, that the statement made was such as to make it unlikely that the truth of the admission was adversely affected.

47. The admission is in two parts though;

1. That she took the money from her former partner and

2. That the money was the proceeds of dealing in prohibited drugs.

48. On either premise, in my view, the offence is made out. What occurred thereafter, with the police and the investigation they conducted, does leave alive questions regarding the admissibility of the evidence that was harvested, bearing in mind the obligations the police had under the Law Enforcement Powers and Responsibilities Act 2002 and the terms of s 138 and s 139 Evidence Act 1995. I put that evidence to one side for the determination of this appeal.

49. On the voir dire, the appellant gave evidence which presented a different picture to that which was offered in the evidence from the prosecution. In evidence on the voir dire, she said that she was in Caringbah around 9.15pm. She had ordered an Uber that was to take her to Cronulla where she once lived. She formed the view that the Uber driver was part of the Mafia and therefore left the vehicle at Caringbah. She attributed her perception to the ingestion of drugs. She spoke of the Uber driver being on the phone. She did not know to whom he was speaking but she formed the view that he was setting her up. She made him pull the car over. She alighted. She disappeared into bushes.

50. She called triple-0 and I accept that her state is fairly reflected in the communication between her and the triple-0 operator. She walked up to the 7-Eleven store nearby to confirm her location. She saw a car in the parking lot, there was a man sitting in it, staring at her. She told the operator that she thought he was following her. She did not talk to him. She heard him say “wrong move” which she understood was directed towards her and she alerted the operator to that.

51. I pause to note that in the course of this evidence, the magistrate interrupted with observations, the purpose of which is not clear to me. But in any event, at p 25 of the evidence on the voir dire in response to questions put to her by her representative, she admitted that there was in fact no-one following her. Her evidence at line 24 on that page, continues.

“Q. And again, it is probably an obvious question, but looking back at it now, was there anyone following you?

A. There was no one following me.

Q. Did you stay at the 7-Eleven?

A. No. I started walking up towards the road to try and find the cops.

Q. Did you find the cops?

A. Yeah eventually.

Q. How were you feeling at the time?

A. Completely out of mind.

Q. When you say completely out of your mind, why were you completely out of your mind?

A. I hadn’t slept for three or four days.

Q. I think you’ve already given evidence that you have been using drugs. What type of drug was that?

A. Cocaine.

Q. Were you still affected by cocaine at that time?

A. Very.

Q. Can you tell me what happened when the police approached you?

A. I told them that was extreme., I hadn’t slept for three or four days but I thought a Mafia was following me.”

52. She continued to describe how she wanted to go to the hospital but they ought to take her to her best friend’s house. They said to her that they were not a taxi service. She was the asked at p 26 line 12;

“Q. We have heard evidence today that you said ‘I have taken my boyfriend’s drug money’. Do you agree you said that to the police?

A. Yes.

Q. Was that drug money?

A. No.

Q. Were you ever told you were under arrest?

A. No.”

53. The questions continued with regard to whether or not she was advised of her rights which apparently she was not; that was uncontroversial as I noted earlier. She was asked at line 29;

“Q. In relation to the bags, how did the bags come to the police’s attention?

A. They told me that they were going to take me back to the police station and did I have anything on me.”

54. Once again, his Honour “reluctantly” interrupted again for what purpose I am not sure, and there was a debate that followed between the appellant’s solicitor and the bench.

55. She described at p 27 that at Caringbah, she was not told that she did not have to answer questions. She was then asked about being told that, during an interview at the Sutherland Police Station toward the end of the interview. They described how the bag was taken off her, how she got back to the police station. She could not remember conversation during the travel back to the police station. She spoke of having been taken to an interview room. There was reference to the record of interview conducted. At p 29 she was asked at line 12;

“Q. If you could just repeat the last answer, please take your time?

A. I legitimately thought that people were trying to kill me, and that my partner was trying to kill me, and I was hearing voices.”

56. The cross-examination on the voir dire included that she made no mention of the Mafia in the course of the triple-0 call. She confirmed that she said to the police officers at the scene “I am dead, I am dead.” She said to them “Please help me, they’re going to kill me.” She acknowledged that she was communicating with people associated with the boyfriend were after her. She acknowledged that she consumed a large amount of cocaine. She was asked at p 39, 35;

“Q. And you said to Constable Hannon Ervin, I have left my boyfriend, I took his money. I’ve done a lot of cocaine and I’m really scared. Do you remember saying that?

A. I don’t remember exactly saying word for word what I said but I did say something like that.”

57. The prosecutor had her acknowledge her acceptance that she had in her possession, a significant amount of money in her bag. That she told the police it was drug money and that she opened her bag and showed the contents to the police. She acknowledged that she had put the money in there and that she had taken it from her partner at the time from his place.

58. The magistrate gave reasons for the decision reached upon the voir dire at pp 39, 40 and 41 and came to the view, expressed at p 41 line 21;

“Clearly, the Court is of the view that it was a spontaneous remark against the background, and the question the Court has asked and the protection of the police, she was being put in the car but the question arose then about the money. At that time, in those circumstances. Clearly, in the Court’s discretion and in the Court’s mind, as indicated under s 85, the admission was made is unlikely that the truth of the admission was adversely affected.”

59. His Honour at p 41 line 32 ruled that the evidence of what was said at the scene would be admitted but the body worn admissions later at the police station were excluded. for reasons consistent with what I have expressed earlier in this judgement.

60. In the substantive hearing, after the tender of the material on the voir dire, the appellant gave evidence once again. She said, in this evidence that the money came from her boyfriend and when asked at p 45 line 34;

“Q. Did you know about the money prior to 31 October?

A. Yes.

Q. What did you know about the money?

A. It was to open his pizza parlour.”

61. There was evidence later about that business from her and where it was located. Thereafter, she acknowledged that she told the police the money was drug money; but said here that was not true. She again referred to her use of drugs. She conceded that some things she told the police were not accurate, including that the money was drug money, including that her partner was in the Mafia. She was asked at p 48 line 20;

“Q. When you took the money, what did you intend to do with it?

A. I didn’t know - didn’t know what was going through my head.

Q. The next day when you left the police station, did you have a conversation with your partner about what had happened?

A. Yes.”

62. There were questions and answers beginning at line 26. The information sought by her representative was whether she said something to her partner about giving him the money back. Her answers in my assessment were not responsive and the question was not embraced in the answers that were offered.

63. In the cross-examination she conceded that she was not involved in any of the finances, as far as the business was concerned or the running of the business. She conceded that she said, “Please help me, they are going to kill me, I am dead” when she was first in the presence of the police. When asked why she took the money, she said she did not know why. She had no financial control in the business at all.

DECISION

64. There is in my assessment of the evidence a question mark over features of what the appellant had to say before the magistrate, consistent with what I understand the magistrate to have said about her evidence as to what occurred at the scene and what was her state of mind and awareness. But ultimately, in consideration of this matter, and applying the authorities dealing with this offence, I have come to the view that on the evidence before me, including the evidence that was given by the appellant in the Local Court, the elements of the offence required of the prosecution have been established beyond reasonable doubt and that in the circumstances the money found in her possession might reasonably be suspected of being stolen or otherwise unlawfully obtained.

65. I am not persuaded on the balance of probabilities that the appellant has discharged the burden of proof that she had to bear if she were to avoid the consequences of the circumstances of having custody of that money.

66. For those reasons, the appeal from a conviction is dismissed.

67. I have determined the conviction appeal in this matter and the appellant now proceeds to her sentence appeal.

68. She is 34 years of age. She was 30 or thereabouts, at the time of the offence.

69. The maximum penalty to which she was exposed in this matter was imprisonment for six months with a fine of $550.

70. The magistrate convicted her and ordered her to submit to a community corrections order for a period of two years from 18 November 2022 with standard conditions including supervision by Community Corrections, and drug testing as might be required by Community Corrections.

71. In this jurisdiction at least she has no antecedents other than for a driving offence in 2015, a mid-range PCA for which she was fined and disqualified, I put that to one side in the determination of this matter.

72. There are testimonials speaking to her qualities, including that she is working toward qualifications as a veterinary nurse. On the material I have, clearly she is a person of otherwise good character and it would seem to me that a conviction in this case is not warranted.

73. Accordingly, I propose to allow the appeal from sentence. I confirm the finding of guilt but without proceeding into conviction, I shall discharge her upon entering into an agreement to be of good behaviour for a period of 18 months from today pursuant to s 10(1)(b) Crimes (Sentencing Procedure) Act 1999 in conjunction with s 9 of the Act.

74. No other orders were sought. The papers to remain on file.

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Decision last updated: 21 August 2023