Safari v Director of Public Prosecutions for Western Australia - [2023] WASC 389

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SAFARI -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 389
CORAM:   LEMONIS J
HEARD:   4 & 18 SEPTEMBER 2023
DELIVERED          :   9 OCTOBER 2023
FILE NO/S:   SJA 1019 of 2023
BETWEEN:   HOMAYUN SAFARI
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No:   SJA 1019 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE V EDWARDS
File Number            :   AR 7029/2022
AR 7023/2022

Catchwords:

Appellant charged with two offences of being in possession of cash reasonably suspected to have been stolen or otherwise unlawfully obtained - The appellant was convicted after trial of both charges - The appellant gave evidence at trial in which he explained that he came by the cash in a lawful manner - The learned magistrate did not have regard to this explanation in finding that the prosecution had proved the cash was reasonably suspected to have been stolen or otherwise unlawfully obtained - Whether this occasioned an error of law and if it did, whether the appellant is entitled to an acquittal

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Police Act 1892 (WA)

Result:

Appeal allowed and new trial ordered

Category: B

Representation:

Counsel:

Appellant	:	K Kumar
Respondent	:	K C Cook

Solicitors:

Appellant	:	Finola Barr Law Practice
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Greenway v Lavers [2023] WASC 311
Le v Feakes [2018] WASC 331
Marzano v Procopis [2009] WASC 332
McDonald v Webster [1913] VLR 506
Nicholls v Young [1992] 2 VR 209
Ricciardello v Van Aken (1996) 14 WAR 1
Ryan v Dimatrovski (1995) 16 WAR 457
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Whittle v Brown [2011] WASC 143

LEMONIS J:

On 2 March 2023, the appellant (Mr Safari) was convicted by the learned magistrate of two offences of having in his possession cash that was reasonably suspected to be stolen or otherwise unlawfully obtained. In respect of charge AR 7023/2022, the sum of cash was $49,650 in Australian currency. In respect of charge AR 7029/2022, the sum of cash was $45,510 in Australian currency.
The relevant offence is an offence under s 417(1) of the Criminal Code (WA).
Mr Safari now appeals against his convictions. The original grounds of appeal had been amended pursuant to the order of Registrar Whitbread made 11 July 2023. The grounds as amended were:
1.Each verdict is unsupported by all of the evidence.
2.The learned magistrate made errors of fact which occasioned a substantial miscarriage of justice.
3.The learned magistrate impermissibly used evidence in a prejudicial manner to convict the appellant and this occasioned a substantial miscarriage of justice.
After some initial oral submissions by Mr Safari's counsel, Ms Kumar, I granted Mr Safari leave to amend his grounds of appeal to add a further ground in the following terms, which became ground 4:
The learned magistrate erred in law by failing to take into account the appellant's evidence when determining whether or not the cash seized was reasonably suspected to be stolen or unlawfully obtained.
In respect of that new ground, Mr Safari gave evidence at the trial in which he provided an explanation for how he came to be in possession of both parcels of cash. Her Honour did not take this evidence into account in deciding whether or not the State had proved that the cash the subject of each charge was reasonably suspected to be stolen or unlawfully obtained. Rather, her Honour had regard to this evidence in deciding whether or not Mr Safari had made out the defence provided for by s 417(2). Her Honour found that he had not.
As I will come to explain, in deciding whether the State had proved the cash the subject of each charge was reasonably suspected to be stolen or unlawfully obtained, her Honour was required to have regard to Mr Safari's explanation as to how he came to be in possession of the cash.
Counsel for the respondent, Ms Cook, promptly and quite properly accepted that ground 4 was made out. The initial hearing of the appeal was adjourned for a short period of time for Ms Cook to consider whether the error did not occasion a substantial miscarriage of justice and therefore the appeal should be dismissed in any event under s 14(2) of the Criminal Appeals Act 2004 (WA) (CA Act).
Ms Cook subsequently filed written submissions in which the respondent confirmed the concession that ground 4 was made out. The submissions also advised that the respondent did not rely on s 14(2) of the CA Act and that accordingly the appeal should be allowed.
Mr Safari did not press grounds 1 and 3. Ms Kumar submitted it may be open to me to make findings on the evidence such that judgments of acquittal can be entered. However, this was not strongly pressed.
I am grateful to both counsel for the concise manner in which the appeal was conducted.
For the following reasons, in my view the respondent's concession is correctly made and it should be accepted. The appropriate orders are that Mr Safari has leave to appeal on ground 4, the appeal be allowed, the judgments of conviction set aside and the matter remitted to the Magistrates Court for a retrial.
Given Mr Safari's success on ground 4, it is not necessary for me to consider ground 2. That ground is directed to the factual findings which the learned magistrate made in deciding that Mr Safari had not proved the defence provided for by s 417(2). It is not necessary for Mr Safari to prove that defence given that the learned magistrate's primary finding as to the critical element of the offence is affected by material legal error.
It is helpful at this point to briefly explain the legislative regime under which this appeal is brought, before turning to the provisions of s 417 of the Criminal Code.

Criminal Appeals Act

The appeal is brought pursuant to s 7(1) of the CA Act, Mr Safari being a person aggrieved by the decision of the learned magistrate to convict him of the two charges.
An appeal may be made on grounds that include:
1.the learned magistrate made an error of law or fact, or of both law and fact;[1] and
2.that there has been a miscarriage of justice.[2]
[1] CA Act s 8(1)(a)(i).
[2] CA Act s 8(1)(b).
Leave of this court is required for each ground of appeal. Further, I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding.[3]
[3] CA Act s 9(2).
Section 14 of the CA Act sets out the options available to me in deciding the appeal. These include dismissing it or allowing it. Further, pursuant to s 14(2) even if a ground of appeal might be decided in favour of Mr Safari, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred. This provision is permissive, not mandatory.[4] As I have already explained, the respondent does not rely on s 14(2).
[4] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44] - [45].

Section 417 of the Criminal Code

Section 417(1) and s 417(2) of the Criminal Code provide:
(1)A person who is in possession of any thing capable of being stolen that is reasonably suspected to be stolen or otherwise unlawfully obtained is guilty of a crime and is liable, if no other punishment is provided under section 417A, to imprisonment for 7 years.
Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.
(2)It is a defence to a charge under subsection (1) to prove that at the time the accused was allegedly in possession of the thing, the accused had no reasonable grounds for suspecting that the thing was stolen or unlawfully obtained.
A similar provision was previously contained in s 69 of the Police Act 1892 (WA). It provided:
Every person who shall be brought before any Justice charged with having on his person or in any place, or conveying, in any manner any thing which may be reasonably suspected of being stolen or unlawfully obtained, and who shall not give an account to the satisfaction of such Justice how he came by the same, shall be liable to a penalty of …
As can be seen, the language of s 69 is 'which may be reasonably suspected of being stolen or unlawfully obtained'. This is to be contrasted with s 417(1), which states 'is reasonably suspected to be stolen or otherwise unlawfully obtained'.
Further, the word 'otherwise' was included in s 417(1) to overcome the effect of the decision in Ricciardello v Van Aken,[5] where it was held that the words 'stolen or unlawfully obtained' in s 69 of the Police Act only applied to stealing or analogous offences.[6] Thus, as EM Heenan J observed in Marzano v Procopis,[7] s 69 did not apply where a person was in possession of money relating to the manufacture or supply of prohibited drugs.
[5] Ricciardello v Van Aken (1996) 14 WAR 1, 9 ‑ 10.
[6] See also Marzano v Procopis [2009] WASC 332 [22].
[7] Marzano [22].
These differences in the language of s 417 of the Criminal Code and s 69 of the Police Act need to be kept in mind when considering the authorities that deal with s 69.
In terms of the operation of s 417(1), it is only necessary for the prosecution to prove that the property in question is reasonably suspected to be stolen or otherwise unlawfully obtained. It is not necessary for the prosecution to prove that it is in fact stolen or otherwise unlawfully obtained.[8]
[8] Marzano [27] ‑ [29]; Le v Feakes [2018] WASC 331 [34].
The phrase 'reasonably suspected' is not defined in the Criminal Code. As Hall J (as his Honour then was) observed in Le v Feakes:[9]
A similar phrase is also used in the context of search warrants. In George v Rockett, the High Court held that in the context of a search warrant a suspicion is a state of conjecture or surmise where proof is lacking. It is more than an idle wondering; it is a positive feeling of actual apprehension or mistrust amounting to a slight opinion but without sufficient evidence. The addition of reasonableness means that a suspicion based on reasonable grounds requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. (footnotes omitted)
[9] Le v Feakes [35].
Whether there is a reasonable suspicion is an objective conclusion to be reached from all of the evidence in the trial.[10] The circumstances in which the item was found can inform the reasonable suspicion required by s 417.[11]
[10] Le v Feakes [34].
[11] Marzano v Procopis [27] ‑ [29].
The relevant time at which the reasonable grounds for suspicion must exist is at the time of consideration of the matter by the trier of fact.[12] However, that being said, the circumstances which ground the reasonable suspicion must still be directed to the point in time at which it is alleged the accused was in possession of the thing.
[12] Ryan v Dimitrovski (1996) 16 WAR 457, 476.
In some cases, matters which arise subsequently may still inform the particular circumstances that existed at the point in time of the alleged possession. So, for example, if an accused is subsequently found to be in possession of a substantial amount of illegal drugs, that may inform an assessment as to whether the accused was dealing in drugs at the point in time the accused is alleged to be in possession of the thing the subject of the s 417 charge.
An accused's explanation as to how they came to be in possession of the thing is a relevant consideration in assessing whether the reasonable suspicion arises.[13] In this respect, an explanation may be of such a nature that if accepted by the trier of fact, the required reasonable suspicion does not arise. For example, where the prosecution case is that there is a reasonable suspicion that cash is derived from illegal activity, an accused's explanation that the funds were derived from a lawful source, if accepted, would ordinarily prevent a reasonable suspicion from arising.[14]
[13] Le v Feakes [34] ‑ [36]; Marzano [26].
[14] See Marzano [26].
On the other hand, that an accused makes an untrue statement as to how they came to be in possession of the relevant item is also a relevant consideration to take into account. However, it is not in itself a ground that makes out the required reasonable suspicion.[15]
[15] See McDonald v Webster [1913] VLR 506, 513 and Nicholls v Young [1992] 2 VR 209, 215. See also Ryan v Dimitrovski (477).
If an accused wishes to rely on s 417(2), they have an evidentiary and legal onus to prove on the balance of probabilities that at the time they were in possession of the thing, they had no reasonable grounds for suspecting that it was stolen or unlawfully obtained.[16] The prosecution is not required to negative the defence.[17]
[16] Whittle v Brown [2011] WASC 143 [63]; Le v Feakes [31].
[17] Le v Feakes [31].
The interplay between s 417(1) and s 417(2), especially where an accused provides an explanation that cash has been obtained from lawful sources, is not necessarily straight forward. Depending on the circumstances of the case, such an explanation may be relevant to a consideration of both s 417(1) and s 417(2), which carry different onuses and different standards of proof.
I turn now to the trial and to her Honour's reasons.

The trial and her Honour's reasons

At trial, the prosecution led evidence of police officers having executed a search warrant at Mr Safari's home.
The police officers found a sum of $45,510 in cash in a safe, in three parcels and a separate ten dollar note. One parcel was cryovacked, and the other two parcels were secured by elastic bands. This is the cash the subject of charge AR 7029/2022. The police officers found an additional $49,650 in cash, which was cryovacked and buried in a garden bed. This is the cash the subject of charge AR 7023/2022.
The police officers also found prohibited drugs, prescription drugs for which it is alleged Mr Safari did not have a prescription, drug paraphernalia and a cryovac machine in a bedroom which was plugged in. Further, it is open to conclude from Mr Safari's words and actions during the search that he denied ownership of the cash buried in the garden and denied that he had touched or handled that cash.
At trial, Mr Safari gave evidence. Mr Safari accepted that he owned the cash buried in the garden. Mr Safari also accepted he owned the cash found in the safe. Further, Mr Safari admitted possession of the cash the subject of each charge.
In his evidence, Mr Safari gave an explanation for how he came to be in possession of each parcel of cash, which in broad terms was that it was derived from a tow truck business he had previously owned and operated. He also put into evidence financial records in relation to the business which were said to support this contention. Thus, Mr Safari's explanation was to the effect that he came by the cash lawfully.
The learned magistrate in her reasons addressed whether the prosecution had proved beyond reasonable doubt that the cash was reasonably suspected to be unlawfully obtained and also whether Mr Safari had established on the balance of probabilities he had no reasonable grounds for suspecting that to be the case.
The learned magistrate's reasons in relation to whether the cash was reasonably suspected of being unlawfully obtained were as follows:[18]
There are two elements, though, remaining in respect of each of the two charges. The first element is that in respect of each charge the circumstances of the possession gave rise for the reasonable suspicion that the cash was unlawfully obtained. This requires the court to reach an objective conclusion from the evidence led as to whether or not the cash might reasonably be suspected of being stolen or unlawfully obtained. A reasonable suspicion will necessarily fall short of certainty, and I refer to Ryan v Dimitrovski [1996] 16 WAR 457. It is not whether the police, at the time of the seizure of the cash had the relevant suspicion, but whether the court, in objectively considering all of the circumstances concludes that it is reasonable to suspect that the cash was unlawfully obtained.
The factors for consideration are these. Firstly, the amounts of cash were found in two separate locations. The cash found in the safe consisted of one Cryovacked wad and two wads secured by elastic bands. The total amount was over $45,000. Secondly, a Cryovac machine and bags were located in a spare bedroom. And, thirdly, scales, illicit drugs and drug paraphernalia were located. Fourthly, Cryovacked cash was located buried in a garden bed outside the house. This was over $49,000. The fact that cash was buried, that the two amounts of cash were in two separate locations, that the majority of the cash was Cryovacked and the existence of illicit drugs and items indicative of drug use, plus the fact that the Cryovac machine was located in a bedroom rather than where one would expect it to be, namely, a kitchen or pantry, in my view, it is then reasonable to suspect that the amounts of cash were unlawfully obtained.
The burden now shifts to Mr Safari to persuade the court on the balance of probabilities that the cash in each instance was not unlawfully obtained.
[18] ts 3 ‑ 4, 2 March 2023. Further, while her Honour used the words 'might reasonably be suspected', rather than 'is reasonably suspected', nothing turns on this. It is clear from her Honour's reasons that her Honour had regard to the applicable test as set out in s 417(1).
As can be seen from this passage, in coming to the finding that there was a reasonable suspicion, her Honour did not have regard to Mr Safari's explanation as to how he came to be in possession of the cash the subject of each count.
The respondent correctly accepts her Honour's reasons cannot be read as implying that her Honour considered Mr Safari's explanation in assessing whether the reasonable suspicion arose.[19] The structure of her Honour's reasons is such that it is clear her Honour only took Mr Safari's explanation into account in considering whether he had made out the defence.
[19] Respondent's submissions dated 11 September 2023, pars 10 ‑ 11.
Accordingly, her Honour made an error of law. As I have explained at [25], [28] and [29], an accused's explanation for being in possession of the thing is a matter which the trier of fact needs to take into account in assessing whether the prosecution has established the required reasonable suspicion beyond reasonable doubt. Moreover, such an error is a material one in this case, given that Mr Safari in evidence gave a detailed explanation as to how he came to be in possession of the cash through lawful means.
Her Honour did have regard to Mr Safari's explanation when deciding whether he had made out the defence in s 417(2). In this respect, her Honour did not accept Mr Safari's explanation and therefore found that the defence was not made out. However, this reflects a different onus and a different standard of proof compared to s 417(1). As the respondent's counsel stated in her further written submissions:[20]
In determining whether the prosecution has proven beyond reasonable doubt the elements of the offence in s 417(1), a trier of fact is required to reach an objective conclusion from all the evidence at trial as to whether the cash is reasonably suspected of being stolen or unlawfully obtained. However, if applicable, the defence in s 417(2) requires a trier of fact to consider a different question: whether an accused has proven on the balance of probabilities that he had no reasonable grounds for suspecting the cash was stolen or unlawfully obtained. (Emphasis in original).
[20] Respondent's submissions dated 11 September 2023, par 16.
Accordingly, and in my view correctly, the respondent did not seek to rely on s 14(2) of the CA Act. Ground 4 is therefore made out.

I turn now to consider whether each charge should be sent back to the Magistrates Court for a new trial, or whether judgments of acquittal should be entered.
A feature (perhaps an important feature) of whether the prosecution has proved that the required reasonable suspicion arose is to what extent, if at all, Mr Safari's explanation for being in possession of the cash is accepted. Thus, the honesty and reliability of Mr Safari's evidence are matters which need to be addressed. Mr Safari contends his evidence should be accepted. The respondent contends his evidence should be rejected.
In Greenway v Lavers,[21] one of the matters I needed to address was whether the evidence properly admitted at trial proved the appellant's guilt of the subject offence beyond reasonable doubt. In relation to that task, I observed:
There would be significant hurdles in the way of my being able to reach such a conclusion where the honesty or reliability of a witness's evidence on material matters is in question. They are usually matters best left to the learned magistrate, who has the advantage of observing and assessing the evidence as it is given.
[21] Greenway v Lavers [2023] WASC 311 [15].
These same observations apply on this appeal. Mr Safari's evidence is a material matter in respect of each charge, as his success on ground 4 itself demonstrates. The honesty and reliability of his evidence are matters that need to be resolved. These are matters best left to the ultimate trier of fact, who has the advantage of observing and assessing his evidence as it is given, including whether there was any evasiveness, uncertainty, hesitation or emphasis in giving that evidence. Accordingly, in my view, the honesty and reliability of Mr Safari's evidence are not matters that I should entertain. It follows that judgments of acquittal should not be entered. Instead, the two charges the subject of the appeal should be sent back to the Magistrates Court for a new trial to be heard before a different magistrate.
I make the following orders:
1.I grant leave to appeal on ground 4.
2.The appeal is allowed on ground 4.
3.The judgments of conviction on charges AR 7023/2022 and AR 7029/2022 are set aside.
4.There be a new trial before a different magistrate on charges AR 7023/2022 and AR 7029/2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CA
Associate to the Honourable Justice Lemonis
9 OCTOBER 2023