Russell v Commissioner of Police

[2019] QDC 117

DISTRICT COURT OF QUEENSLAND

CITATION:

Russell v Commissioner of Police [2019] QDC 117

PARTIES:

Scott Luke Russell
(Appellant)

v

Commissioner of Police
(Respondent)

FILE NO/S:

D 2/19

DIVISION:

Civil 

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Caloundra

Stjernqvist M

DELIVERED EX TEMPORE ON:

21 June 2019

DELIVERED AT:

Maroochydore

HEARING DATE:

21 June 2019  

JUDGE:

Cash QC DCJ

ORDER:

1.   The appeal be allowed.

2.   The conviction, sentence and order for forfeiture made on 14 December 2018 are set aside.

3.   A verdict of not guilty be entered.

4.    The Respondent is to pay the Appellant’s costs of the appeal in the amount of $1,800.

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION, SENTENCE AND FORFEITURE ORDER – TAINTED PROPERTY - whether property may reasonably suspected of being tainted property - whether it is necessary only to assess whether the arresting officer held a reasonable suspicion in the circumstances confronting the officer - where the office found $11,300 in cash in a shopping bag in the appellants car – where the Magistrate erred by asking whether the arresting officer held a reasonable suspicion rather than deciding if the property may reasonably suspected of being tainted property

LEGISLATION:

Criminal Proceeds Confiscations Act 2002 (Qld) s 252
Justices Act 1886 (Qld) ss 222, 223.

CASES:

Allesch v Maunz [2000] 203 CLR 172
McKeever v McGee; ex parte McGee [1995] 1 Qd R 621
Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679

COUNSEL:

J Feely for the appellant
A Nikolic for the respondent

SOLICITORS:

Murray Tutt Legal for the appellant
Office of the Director of Public Prosecutions for the respondent

1. HIS HONOUR:   Late on 5 October 2017, the appellant was in a car that was stopped by police on the Steve Irwin Way. Police were suspicious and searched the car. In the footwell where the appellant had been seated, they found $11,300 in cash in a shopping bag. The appellant admitted the money was his and told the police that he had saved the money over time. The appellant was charged with possessing tainted property contrary of section 252 of the Criminal Proceeds Confiscations Act 2002. He was tried before a magistrate. A single witness, one of the police officers who found the money, was called. The appellant did not give evidence. He was convicted and now appeals against his conviction on a number of grounds.

1. As the prosecution correctly concedes, at least one of those grounds must succeed. The magistrate misunderstood the elements of the offence. He considered it necessary only to assess whether the suspicion held by the police officer was a reasonable one in the circumstances then confronting the officer. This was an error. The real question for the magistrate was whether he was satisfied on the evidence in the trial that the money “may reasonably be suspected of being tainted property” (see McKeever v McGee; ex parte McGee [1995] 1 Qd R 621,632).

1. This error does not itself dictate the outcome of the appeal. An appeal to this court pursuant to section 222 of the Justices Act is to be determined in accordance with section 223 of that Act, that is, the appeal is by way of rehearing on the evidence before the magistrate and any other evidence introduced with leave of this court. It is not a hearing de novo. It is for the appellant to demonstrate the decision the subject of the appeal is a result of some legal, factual or discretionary error (see Allesch v Maunz [2000] 203 CLR 172 at [22]-[23]). An appeal by way of rehearing involves the appellate court conducting a “real review” of the evidence given at the trial (see Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679 at 686-687, [43]).

1. Unlike an appeal in the strict sense where the powers of an appellate court are limited to making the decision that should have been made at first instance, I must conduct a rehearing and can substitute my own decision based on the facts and the law as it stands at the time of the hearing. In some cases, it may be that notwithstanding error in the proceedings at first instance, the appellate court is satisfied, applying the correct law, that the evidence proves the guilt of the appellant. In other cases, it may be that even had there been no legal error, the evidence is not sufficient to prove the guilt of the appellant. The appellant contends this case falls into the second category and that it follows the appropriate order would be to set aside the conviction and enter a verdict of acquittal rather than send the matter for a retrial.

1. The question of whether or not the evidence was sufficient is, of course, to be determined having regard to the testimony at the trial which consisted, as I have noted, of a single police officer. The police officer testified as to circumstances which might be seen to raise a suspicion about the money in the possession of the appellant. That included the state of the car in which he was travelling, what might be called broadly the state of the occupants in the car and, as well, the time of night and the place where the vehicle was stopped and searched. Taken together, but without reference to any other evidence, those matters might combine to make one wonder how it came to be that the appellant had $11,300 in cash. But the issue is whether, on the whole of the evidence, including the defendant’s explanations, that was enough to be satisfied beyond reasonable doubt that the money “may reasonably be suspected” of being tainted property. In my view, it is not.

1. The explanations offered by the appellant as to how he legitimately came by the money do not need to be believed. They just need to be sufficient to raise a reasonable doubt. The explanations he offered are, in my view, enough to raise such a doubt and it would only be if they were able to be rejected that that doubt would be resolved. There is, though, no basis properly for rejecting the explanations of the appellant. They are not inherently implausible and they were not contradicted by any evidence offered by the prosecution in the course of the proceedings.

1. It follows, in my view, that even applying the correct legal test, the evidence before the magistrate was not sufficient to permit a conclusion beyond reasonable doubt that the property in the possession of the appellant may reasonably be suspected to be tainted property. On that basis, the potential defence in subsection (2) does not even arise for consideration as the prosecution would have failed to establish the offence in the first place.

1. It follows, from what I have said, that it is appropriate to set aside the conviction and, instead, make orders which will give effect to a verdict of not guilty. With that in mind, I will make orders in terms of the draft provided by Mr Feely which I will initial and leave with the papers.  Those orders will be: 

(1) that the appeal be allowed;

(2) that the conviction, sentence and order for forfeiture made on 14 December 2018 are set aside;

(3) that a verdict of not guilty be entered; and

(4) that the Respondent is to pay the Appellant’s costs of the appeal in the amount of $1,800.

1. I make an order as per the amended draft, initialled by me and left with the papers.